Expropriating land: a balancing act.

• Author: Bowal, Peter
• Position: Feature: Real Estate Law

Introduction

The somewhat foreboding term "expropriation" in Canada describes the right of the government (the Crown or one of its agencies) to legally I take real property (land), that is in private hands and apply it for a greater public use or benefit. This concept is called "compulsory purchase" in the United Kingdom, and "taking" or "condemnation" under the power of "eminent domain" in the United States.

All land in Canada started off belonging to the Crown. The government did not need all the land and could not possibly have managed all of it. Large tracts were surveyed and then sold to private parties to live on, building structures on and otherwise I turn into productive uses. Sometimes, after this transfer to private ownership, the government discovers that some of the land it earlier sold to private parties it now needs to get back for the public good. These important public uses that come up (and require access to privately owned land) include the construction or expansion of highways, water and other public utility systems, schools, transportation systems such as rail tracks, airports and light rail in cities, pipelines, parks or even to expand municipal boundaries. At all levels, governments require the power to expropriate private land. Expropriation laws mediate the inevitable conflicts between private real property rights and the public need for that same land, following clear step-by-step processes.

Statutory, But Not Constitutional, Protection

This government acquisition of land without the owner's consent is not subject to the Canadian Charter of Rights and Freedoms simply because there is no constitutional right for Canadians to own property. This is not to say that there are no rights to due process or administrative fairness when the government asks to take land. It merely means that the landowner's rights are found in the expropriation legislation and not in the Charter. The government must follow the law as to what land may be expropriated and must observe the procedures set out in the legislation that generally serve to protect the private landowner.

While the federal government can expropriate land, (Expropriation Act, RSC 1985) most expropriations come under provincial legislation. Each province has applicable legislation.

In Canada, there was once a common law basis for expropriation without legislative oversight. The procedure for government to take land and to determine the compensation payable evolved with...