The Prince Edward Island Lands Protection Act: the art of the possible.

• Author: McCallum, Margaret

Running through the history of [Prince Edward Island] ... is a strong iron thread ... of permanence and stability ... made up of our family farms and the agricultural community made possible by the family farm.... The very nature and character of this province is built upon the nature and character of our farming community.

--Speech from the Throne, 3rd Session of 52nd General Assembly, Prince Edward Island, 2 March 1972

There is, in this Province, a long, tempestuous and sometimes, passionate history connected with our land and our people's relationship to the land ... the citizens of Prince Edward Island, individually and through their Government, are prepared to utilize the lessons of history and deal with the problems of land use and land ownership in a resolute and vigorous fashion.

--Speech from the Throne, 5th Session of 52nd General Assembly, Prince Edward Island, 7 March 1974

Historically, Islanders have had a special concern with the ownership and use of land. My Government believes in policies that make land ownership available to the maximum number of Islanders.

--Speech from the Throne, 4th Session, 55th General Assembly, Prince Edward Island, 4 March 1982

For years, successive administrations have struggled with the complexities of land policy, and the difficulty of reconciling the rights of individual property owners with the perceived collective rights of all Islanders. This dilemma is historical, and made especially challenging to our province because of its limited geography and high population density.

--Speech from the Throne, 3rd Session, 58th General Assembly, Prince Edward Island, 19 March 1991

[H]istory has demonstrated that Islanders and their land are one in spirit.

--Speech from the Throne, 4th Session, 58th General Assembly, Prince Edward Island, 23 March 1992

Issues relating to land ownership have long historical roots in our province.

--Speech from the Throne, 3rd Session, 59th General Assembly, Prince Edward Island, 9 March 1995

As people living on an island, we are acutely aware that our resources are finite, fragile and limited.

-Speech from the Throne, 4th Session, 61st General Assembly, Prince Edward Island, 14 November 2002

Prince Edward Island, in the Gulf of St. Lawrence on Canada's east coast, comprises 1.4 million acres (5,684 sq. km.) of farms, woodlands, red clay roads, gently rolling hills with vistas to the ocean, and strip development spreading out along the province's main highways. With a population of just under 136,000, Prince Edward Island is the smallest, most densely populated, and most rural of all Canadian provinces. Tourism promoters describe the Island as the Garden in the Gulf, and the agricultural sector is seen as integral to the Island economy and aesthetic. Although 55 per cent of the population is defined in census terms as rural, 92 per cent of this rural population does not live on farms. The number of Island farms fell from 10,137 in 1951 to 3,677 in 1976, while farm size, in terms of average acreage, increased from 171 acres in 1971 to 271 acres in 1991. The nature of the farms changed, too, from mixed farms to farms focussed on potato production. Between 1971 and 1991, Prince Edward Island increased its share of Canadian potato acreage from 17 per cent to 26 per cent, with more potato farms than in any other province. (1)

In the post-war years, Island governments, whether Liberal or Conservative, have given considerable attention to how best to maintain a land base for family farms, however that problematic term might be defined. Currently, Prince Edward Island relies on the Lands Protection Act to ensure that Islanders will be able to acquire their own parcel of Island land. This legislation sets a limit on total land acquisition of 1,000 acres for non-resident and resident individuals and 3,000 acres for corporations. Additionally, non-resident individuals and all corporations are limited to holding five acres in total, and not more than 165 feet of shore frontage, unless the provincial Cabinet grants permission to exceed these limits. (2) As the quotations above illustrate, these restrictions emerge from Islanders' sense of themselves as a beleaguered and vulnerable people trying to sustain their way of life on a limited land base. This paper describes the history of restrictions on land ownership on Prince Edward Island, and argues that these restrictions have been enacted instead of more specialized, but less politically palatable, measures to regulate land use.

At common law, people who were not British subjects of citizens had limited rights to acquire land in Britain of its colonies. The legislature of colonial Prince Edward Island formally granted aliens the right to hold Island land in 1859, but only up to 200 acres. The Colonial Office in London, which exercised supervisory power over Island lawmaking, described this legislation as "a singular Act enough" but confirmed it as "legal within the general empowering clause of the Alien Act." (3) The Island maintained these legislative provisions after joining Canada in 1873. In 1939, this restricted right of aliens to acquire land was incorporated into the province's Real Property Act, but with a proviso permitting aliens to apply to the Cabinet for permission to acquire land beyond the 200 acre limit. In 1964, these sections of the Real Property Act were amended to limit alien land acquisition to no more than ten acres of Island land and no more than five chains (330 feet) of shoreline, unless Cabinet approved acquiring more. Although the limits on alien land holding were inconsistent with the federal Naturalization Act, they were not challenged in the courts, perhaps because they were rarely enforced. Indeed, alien land owners could transfer good title to others, despite the restrictions, as the legislation from 1859 forward stated: "No title to real estate shall be invalid on account of the alienage of any former owner or holder thereof." (4)

As British citizens were not aliens in the colonies, the 1859 legislation did not apply to proprietors resident in the United Kingdom. When the British Crown acquired sovereignty over Prince Edward Island (then known as Ile St. Jean) by the Treaty of Paris, 1763, the imperial authorities divided the Island into 67 lots of about 20,000 acres each, and distributed all but one as rewards for military service in North America or as compensation for other services to the Crown. Many of the proprietors chose to lease land to setters rather than sell parcels of land as freeholds. Even if proprietors offered to sell rather than lease, settlers resented having to buy what was available as a Crown grant in other British North American colonies. From its inception, the colonial legislature on the Island faced serious challenges to the existing pattern of land distribution--both from proprietors who were delinquent in paying quit rents and in establishing settlers on their lots as required by their grants, and from settlers who objected to the proprietors' monopoly of land ownership. (5)

The land question, as it was called, dominated Island politics for its first century as a British colony, and was resolved only after Confederation in 1873. Freed of imperial supervision, the provincial legislature was able to pass legislation compelling the remaining proprietors to sell their estates to the Island government for re-sale to actual settlers. Many of those opposed to the proprietary system found it politically useful to characterize the proprietors as absentee landlords, but the post-Confederation legislation applied to all proprietors who held more than 500 acres, regardless whether they were Island residents or absentees. By then, one of the two largest Island estates, about 76,000 acres spread over seven different lots, was owned by Robert Bruce Stewart, a proprietor who lived on the Island. Nonetheless, the popular historical narrative told of a struggle to wrest control of Island land from parasitical non-resident proprietors. (6)

Absentee ownership became an issue again during the late 1960s and early 1970s, as the province turned to the federal government for assistance in modernizing the Island economy. In November 1968, Liberal Premier Alex B. Campbell was shocked by the maps used during a federal presentation on possibilities for Island development that revealed, incidentally, the extent of nonresident ownership. Restrictions on recreational developments in British Columbia's Gulf Islands had turned developers' attention to Canada's east coast, and advertisements in off-Island newspapers and magazines solicited buyers for large blocks of Island land for recreational use. As well, a flurry of land purchases by corporate interests who wanted large blocks of land for agriculture and forestry revived the old anxieties. As Campbell said: "If non-resident ownership continues to accelerate, we may reach a time when a majority of our land is owned by people who do not reside in our province, a subtle reversion to the absentee landlord situation of a century ago." (7)

In response, Campbell established a Special Committee of the Legislature to investigate the extent of land ownership by non-resident corporations and individuals. The Committee, which reported in April 1971, estimated that if current trends continued unabated, the amount of Island land held by non-residents--five per cent of all land and ten per cent of the shoreline--would almost triple by the end of the century. (8) The government addressed these concerns in two ways. An amendment to the Real Property Act restricted all non-residents, not just aliens, from acquiring more than ten acres of Island land or more than 330 feet of shore frontage, without Cabinet approval. This legislation was intended to limit further loss of land to nonresidents, pending the appointment of a Royal Commission to be composed of suitable commissioners imbued with the desire to preserve the Island way...