Upper Ottawa Valley – Renfrew-Nipissing-Pembroke MP Cheryl Gallant recently introduced legislation, Bill C-222, to amend the federal Expropriation Act to allow for compensation to private property owners flooded by federal government policy PLAN 2014.
Unlike the United States, where private property is protected in the American Constitution, in Canada landowners’ rights are found in government expropriation law used to legally take their property.
Regulatory, de facto or constructive taking of private property happens when Government uses its statutory powers to regulate or restrict the property rights of an owner, without acquiring title to the land being adversely affected. The landowner feels the impact of the regulation as if the land has been expropriated.
From Lake Ontario-St. Lawrence Plan 2014:
The Lake Ontario-St. Lawrence River Study concluded that an estimated 25,000 privately owned riparian properties are located on Lake Ontario and the St. Lawrence River upstream of the Moses-Saunders Dam. More than 3,000 shoreline property parcels are located below elevation 76.2 m (250 ft) and could be at risk of flooding on Lake Ontario and the upper St. Lawrence River. – (Page 42)
The restoration of more natural water level regimes in Lake Ontario and the St. Lawrence River is not a traditional wetland restoration project, which typically includes harvesting and planting, physical transformations of the wetlands, or cleanup of pollutants. Nonetheless, as the USEPA noted, “Plan 2014 will increase the diversity and functioning of 64,000 acres of coastal wetlands by allowing hydrologic conditions (flooding) to support native wetland plant seed germination and growth”(USEPA, 2013). – (Page 57)
The Federal Government, in addition to being fully aware that Plan 2014 was intended to flood residential properties, has obligations in accordance with the Boundary Waters Treaty of 1909, Article VIII:
“interests on either side of the International Boundary which are injured by reason of construction, maintenance and operation of the works shall be given suitable and adequate protection and indemnity as provided by the laws in Canada, or the Constitution and laws in the United States respectively.”
Bill C- 222 seeks to remove some uncertainty from existing federal expropriation legislation as to whether owners must be compensated for certain types of de facto takings, which in the case of Plan 2014 floods their property into wetlands.When governments actually expropriate private property, well-established common law principles, and Canada’s courts combine to usually give property owners at least some compensation in exchange.