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Post Office Box 483, Durham, Ontario, NOG 1RO
Phone (519) 369-2195   /   Fax; (519) 369-2992
opera@bmts.com  /  Web Page: www.bmts.com/~opera/

October 7, 2002

The Honourable David S. Young, Attorney General
Ministry of the Attorney General
Province of Ontario
11th Floor, 720 Bay Street
Toronto, Ontario, M5G 2K1

Dear Mr. Young:                      Re: Provincial Property Rights

            Thank you for your August 30th letter regarding our May 15th message to Premier Ernie Eves concerning provincial legislation for the right to own and enjoy private property in Ontario.

 The frequency and long term consequences of provincial and federal statutes that directly affect use, title and market value of land and real estate as opposed to other kinds of personal property is a major concern for Ontario citizens. Indeed, the pervasive drift to state control of private land might well meet the definition of “real and specific mischief” referenced in your letter.

That communication advises provincial authority to enact property legislation resides in the  Constitution Act 1867 (BNA) but does not require specific legislation to protect property rights. From this, one might reasonably argue that property (land) rights in Ontario is, in fact, a pre-sanctioned provincial initiative the implementation of which has been since deferred in the absence of political resolve to so proceed.

For the past 35 years senior government ministries, agencies and tribunals have invented and invoked a bewildering plethora of statutory private land use prohibitions in the name of environmental and/or conservation protection or, that failing, “the public good”. Most Canadians, including our coalition organizations and their constituents, recognize the need and support the purpose of these restrictions. But commendable goals without entrenched safeguards against consequential injustice, however inadvertent, clearly betray their original intent.

In that context, we direct your attention to social and economic costs being imposed by government edict on at least one class of Ontario citizen - the private owner/occupier of land, particularly rural land. These decrees seldom acknowledge, much less respect, land title and tenure lawfully awarded to people whose lives and property are, or will be, directly affected. Moreover, they offer no protection for private investment, no provision for appeal at government expense, no process for recovery of operational or capital losses arising there from.

As noted in your recent letter, Ontario property law is complex and diverse. Here lies the central problem – no one really knows the extent and validity of private land rights in Ontario. But owners are uncomfortably aware that government agencies and powerful Non Government Organizations seemingly determined to convert private land to a public resource are continually eroding any such prerogatives.

The Expropriation Act, openly invoked and fairly applied, ensures that owners of private lands transferred to the state for public benefit are properly compensated. However, “partial” taking of property occurs when title remains with the legal owner but use and value of his or her land are established on bureaucratic whim or impulse. In that circumstance, it appears some departments of the Ontario government believe themselves empowered, in matters involving private lands, to side-step the Expropriation Act with its statutory provision for public hearings and mediated owner compensation.  

The ability of all levels and numerous departments of government to unilaterally designate, without prior notice, public review, proven need or fair compensation, legally owned private land in a manner that alters its use or reduces its value clearly subverts the democratic principles of which all Canadians are justly proud. In Ontario, this quickening descent to land use intervention by regulation without compensation cries out for searching scrutiny, public debate and specific land rights legislation.

In neither Canada’s Constitution nor in its Charter of Rights and Freedoms are citizen’s rights to own private land specifically included. Thus, under BNA authority, provincial governments can and should make good what amounts to a glaring deficiency in federal property law. To that end our network of Ontario citizen groups and trade organizations fully supports the principles of a legal Brief being prepared by a similar coalition in Western Canada for presentation to the incumbent Alberta government.

Your review of the enclosed OPERA “Up-Date” newsletter and OREA Property Rights pamphlet is respectfully solicited, as is acknowledgement of this commentary at your earliest convenience.

Yours truly

R.A. (Bob) Fowler

c.c. Premier Ernie Eves
       MNR Minister Jerry Quellette
       MOE Minister Chris Stockwell
       Lands and Resources Partnership, Lethbridge, Alberta
       Western Stock Growers Association, Calgary, Alberta


If you have any questions or comments, please  Mr. R. A. Fowler, Secretary.
or write
O.P.E.R.A. c/o R.A. Fowler, Secretary P.O. Box 483, Durham, Ontario. N0G 1R0