Who really owns Alberta's natural resources?

• Author: Wenig, Michael M.
• Position: Environment law

What are citizens' rights or entitlements with respect to the development, use, and conservation of natural resources? This is a complex question for natural resource lawyers in both Canada and the US, in part, because of pre-revolutionary or pre-confederation historical legal legacies. One of the troubling historical legacies in Canada is that many if not all natural resources are still often characterized as belonging to the Crown ("in right of" Canada or, more commonly, in right of the provinces in which those resources are located).

Alberta's various statutes governing the province's disposition of public resources, like timber, oil and gas, wildlife, and water, exemplify this practice. These statutes refer to the province's natural resources (other than those that are privately owned) as belonging to, or as the property of the Crown or Her Majesty in right of the province.

Alberta's primary legislation for managing public lands is an exception to this practice, in that it expressly refers to those lands as "public" lands in its title and uses the term "public land" throughout the body of the legislation. But this Act does not entirely reject the notion of Crown ownership, because it defines "public land" as land "of the Crown" in right of Alberta. It provides that title to the beds and shores of water bodies, in particular, is "vested in the Crown" in right of the province. The Act also refers to "public land" in general that is "vested in the Crown" and to the Crown's "interest" in "public land."

These references to Crown ownership of "public" resources seem like a contradiction in terms. And I am unaware of a legal reason why the Legislature could not delete these references to the Crown entirely from Alberta's resource management statutes.

My US roots make me paranoid about references to Crown resources. The term gives me visions of Robin Hood being punished for taking the "King's deer" in Sherwood Forest. Yet, I know that scenario could not play out here in Alberta. Alberta can and does often limit or restrict access to public lands and resources by, for example, requiring licences for hunting and fishing and water withdrawals, and by designating certain lands as subject to special access management regimes. But the "rule of law," the Charter, common administrative law principles, government ethics legislation, and possibly an implied "public trust" duty, among other legal sources, collectively preclude provincial officials from...