Alberta landowner rights webinar overview

After an introduction from Dave Poulton, Eran Kaplinsky’s presentation provided an overview of property rights, their function and some recent amendments to property law in Canada.

In the following presentation, David Percy explained how property rights interact with the development of renewable energy in Alberta.

Kaplinsky and Percy’s presentations built upon their 2013 Guide to Property Rights published with funding from ALI.

Presentation from Eran Kaplinsky

Kaplinsky started off by explaining the function of property rights. In Canada, property rights protect the rights of the individual landowner and in doing so, encourage land stewardship and investment.

Unlike other countries, property rights are not a part of the Canadian charter which means that at times property rights advocate for the rights of landowners against the state. This separation decentralized political power and serves to protect landowners from the government.

There are times when property can be legally taken from landowners by the government, and because property rights are not constitutionalized, the government can, through enactments and regulations, interfere with property rights.

Property rights and the courts exist to protect landowners in the event that the government interferes. These interferences can be expropriation or regulation.

Expropriation refers to the government taking land. When expropriation occurs, landowners are entitled to compensation.

Regulation refers to the regulation of land use, such as zoning. This type of interference rarely entitles the landowner to compensation.

Profession Kaplinsky ended his presentation by discussing how new definitions and clarifications in the new Alberta Bill of Rights will affect the court's interpretation of property rights.

Presentation from David Percy

Professor Percy began his presentation by explaining how the conversation about the development of renewable energy involves the ownership of subsurface resources.

While property owners own most everything below the surface of their land, the government owns the mines and minerals under 81% of Alberta’s lands.

There is however debate around who owns certain subsurface resources such as coal bed methane, geothermal energy or more recently, who owns the right to store carbon underground.

The Alberta government has passed bills to clarify ownership, the efficacy of these bills has been controversial.

It can be argued that the passing of certain bills took rights away from property owners, such as the Geothermal Resources Development Act of 2021.

The act granted ownership of geothermal resources to the owner of the mineral title, but only from the date the act was passed, therefore it could be argued that prior to the passing of the bill, the property owner held the rights to geothermal energy under their land.

In terms of surface rights, the government introduced new regulations on property rights with the new restrictions on renewable energy development.

The restrictions impair landowners ability to use their land as they see fit. If their land is on Class 1 or Class 2 agricultural land, the farmer can apply to develop renewable energy but the application will be rejected unless they can demonstrate that the renewable energy can coexist with crops and or livestock.

Q&A

Some interesting takeaways from the Q and A are:

• Due to the Alberta Bill of Rights, the threshold for constructive taking is more permissive.
• The government is still making decisions about the right to sequester carbon and ownership of brine and lithium.
• Although the development of renewable energy is restricted on farmland, energy projects that permanently harm the farmland, such as strip mining or sand and gravel, removal are permitted.
• Subsurface rights may be further complicated with multiple parties own the rights to different minerals.

Thank you to all attendees and guest speakers. Keep an eye out for announcements for future webinar sessions.