STREAMSIDE PROTECTION REGULATIONS REGULATION OR EXPROPRIATION
Prepared by Fran Crowhurst, Barrister April 2001 Originally presented on April 5, 2001 to the Urban Development Institute, Vancouver, B.C.
De facto Expropriation – Legal Requirements • Definition of “expropriation” in Expropriation Act: “The taking of land by an expropriating authority under an enactment without the consent of the owner, but does not include the exercise by the government of any interest, right, privilege or title referred to in section 50 of the Land Act.” (reservations in dispositions of Crown land, including right of resumption) Court rulings have established that a de facto expropriation can occur in circumstances where formal statutory procedures under expropriation legislation have not been invoked examples: →refusal to grant a Ministerial park use permit for access to mineral rights removed all of the ownership rights of the mining company (in effect, the Tener v. British reacquisition by the Crown of those mineral rights) Columbia [1985] 3 W.W.R. 673 (S.C.C.) → legislation that removed all of a company’s goodwill and established a monopoly on that same business Manitoba Fisheries [1979] 1 S.C.R. 101 → order-in-council that prohibited issuance of a r source use permit in e park removed all of ownership rights to mineral claims Casamiro Resource v. British Columbia (1991), 80 D.L.R. (4 th) 1 (B.C.C.A.) • Court decisions distinguish between the above situations and regulation of land use; the latter does not create a claim for compensation examples: → down-zoning → designations of transportation corridors → development restrictions and prohibitions →requirements for set backs and leave strips
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Streamside Protection Regulations – Regulation or Expropriation
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De facto expropriation has two necessary elements – 1. the removal of virtually all indicia of title; economic loss is not, per se , such a removal; and 2. a corresponding benefit that accrues to the public body that effected the removal; enhanced value of land to Crown, e.g. protection of ecologically-sensitive area, is not such a benefit Mariner Real Estate v. Nova Scotia (1999), 68 L.C.R. 1 (N.S.C.A.); Nilsson v. Alberta [Q.L. 1999 A.J. No 645] (AB Q.B.)
Regulatory Nature of Streamside Protection Regulations • • • • • • • • implemented through land regulation instruments – e.g. OCPs and zoning bylaws purpose is to “protect streamside protection and enhancement areas” section 2 recognition of existence of obstacles to full designation, including existing parcel sizes and services section 6(5)(b) neither the Fish Protection Act nor the Regulation authorizes the taking of land for purposes of streamside protection regulation reflects goal of allowing development in an environmentally sustainable manner all incidents of ownership are not affected within riparian protection and enhancement areas title to these areas remains in private owner and does not change through designation setbacks required through municipal by-laws are regulatory in nature
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