Expropriation on Property: (Re)Making Canada | An Open Legal Coursebook

Introduction to Expropriation

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Remedies in nuisance are one legal tool used by property owners—with mixed success—to stop their neighbours from adversely affecting use and enjoyment of the owner’s land. Nuisance, in other words, is one means to exclude others from doing something that limits owners’ freedom related to property. This means of exclusion, however, unavoidably limits the freedom of others to use their land as they choose. In these cases, the courts must choose not only whose rights should win out but also find some way to address the fundamental dilemma of conflicting freedoms inherent in legal liberalism.

Riparian Rights

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A riparian owner is the owner of land bounding upon a river or other watercourse. The traditional presumption of English common law is that a riparian owner owns the bed of a non-navigable river or stream to the centre of the watercourse: ad medium filum aquae. Consequently, a riparian owner who holds land on both sides of a river considered “non-navigable” owns the entire riverbed and has exclusive rights to the river’s use .

McLaren v Caldwell et al

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Background to the Case #

Over the course of the nineteenth century, access to waterways in Upper Canada and elsewhere in the country became an integral part of the lumber industry and a primary means to bring timber from logging operations to sawmills and other points of market. From one perspective, these waterways were akin to other types of public infrastructure (like roads and railways) necessary for rapidly expanding natural resource extraction and, eventually, industrialization. In 1847, provincial legislation was passed to help ensure access to waterways in Upper Canada by lumber workers. The legislation stated that:¹

Rivers and Streams Act

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1. All persons shall, subject to the provisions in this Act contained, have, and are hereby declared always to have had, floating down during the spring, summer and autumn freshets, the right to, and may float and transmit saw-logs and all other timber of every kind, and all rafts and crafts, down all rivers, creeks and streams; and no person shall by felling trees or placing any other obstruction in or across any such river, creek or stream, prevent the passage thereof; and in case it may be necessary to remove any obstruction from such river, creek or stream, or construct any apron, dam, slide, gate-lock, boom, or other work therein or thereon, necessary to facilitate the floating and transmitting such saw-logs and other timber, rafts or crafts, down the same, then it shall be lawful for the person requiring so to float and transmit such saw-logs and other timber, rafts and crafts, and it is hereby declared always to have been lawful to remove such obstruction, and to construct such apron, dam, slide, gate-lock, boom or other work necessary for the purposes aforesaid, doing no unnecessary damage to the said river, creek or stream, or to the banks thereof.

House of Commons Debate (Rivers and Streams Bill, 1881)

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Mr. McCarthy — #

When the House rose at six o’clock, I was proceeding to consider that part of the Bill which deals with compensation. Perhaps I might first be permitted to state, however, what I understand to be the meaning of the word “compensation,” when applied to the sovereign right of expropriation. Now, I do not pretend to dispute, and I am quite willing to admit in the amplest possible manner, so far as my judgement goes, that this Act of Parliament was, subject to one consideration, within the power of the Local Legislature. If the one consideration be overlooked there is power in the Local Legislature as in every other sovereign body–and the Local Legislature is sovereign so far as its jurisdiction extends–to expropriate property for public purposes. But, Sir, as I understand the doctrine of expropriation, as we call it, or as it is better known on the other side of the line, the exercise of its power of eminent domain, there are two limitations to the exercise of that power.

Perry v Clissold

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The judgment of their Lordships was delivered by

Lord Macnaghten – #

This was an appeal from a judgment of the High Court of Australia, dated the 20th of June 1904, reversing a judgment of the Supreme Court of New South Wales. It raised a question under the Lands for Public Purposes Acquisition Act 1880 (44 Vict. No. 16), now superseded by the Public Works Act 1900, which consolidates the law on the subject.

Manitoba Fisheries Ltd. v R

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Ritchie J.:– #

This is an appeal from a judgment of the Federal Court of Appeal [1978] 1 F.C. 485, 78 D.L.R. (3d) 393, 17 N.R. 28 dismissing an appeal from a judgment rendered at trial by Collier J. [1977] 2F.C. 457, 72 D.L.R. (3d) 756 whereby he dismissed the action brought by the appellant for a declaration that it was entitled to compensation for the loss suffered by reason of the provisions of the Freshwater Fish Marketing Act,R.S.C. 1970, c. F-13 (hereinafter referred to as “the Act”).

Pennsylvania Coal Co. v Mahon

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Holmes J. — #

This is a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house. The bill sets out a deed executed by the Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but, in express terms, reserves the right to remove all the coal under the same, and the grantee takes the premises with the risk, and waives all claim for damages that may arise from mining out the coal. But the plaintiffs say that, whatever may have been the Coal Company’s rights, they were taken away by an Act of Pennsylvania, approved May 27, 1921, P.L. 1198, commonly known there as the Kohler Act. The Court of Common Pleas found that, if not restrained, the defendant would cause the damage to prevent which the bill was brought, but denied an injunction, holding that the statute, if applied to this case, would be unconstitutional. On appeal, the Supreme Court of the State agreed that the defendant had contract and property rights protected by the Constitution of the United States, but held that the statute was a legitimate exercise of the police power, and directed a decree for the plaintiffs. A writ of error was granted bringing the case to this Court.

Expropriation Act

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3(1)(c) “expropriate” means the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers;

Mariner Real Estate Ltd v Nova Scotia (Attorney General)

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Cromwell J.A. (Glube C.J.N.S. concurring) — #

I. Introduction #

This case involves a collision of important interests. On one side, there are the interests of the respondents in the enjoyment of their privately owned land at Kingsburg Beach. On the other is the public interest in the protection and preservation of environmentally fragile and ecologically significant beach, dune and beach ridge resources. In the background of this case is the policy issue of how minutely government may control land without buying it. But in the foreground is the narrower issue of whether the stringent land use regulations applied by the Province to the respondents’ lands is an expropriation of them within the meaning of the Expropriation Act, R.S.N.S. 1989, c. 156.

Canadian Pacific Railway Co. v Vancouver (City)

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McLachlin C.J.C. — #

1. Introduction #

Over a century ago, in 1886, the provincial Crown granted the Canadian Pacific Railway Company (”CPR”) a corridor of land for the construction of a railway line from False Creek, in the City of Vancouver (”City”), south to Steveston, on Lulu Island (named after Miss Lulu Sweet, a young actress in the first theatrical company to visit British Columbia). It is this corridor of land, now known as the “Arbutus Corridor”, that lies at the heart of this appeal.

Annapolis Group Inc. v Halifax Regional Municipality

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Côté, Brown JJ. – #

I. Overview #

This appeal calls upon the Court to clarify the circumstances in which state regulation of land use may effect a de facto or (as we will refer to it) “constructive” taking of private property.

The appellant, Annapolis Group Inc., contends that the respondent, Halifax Regional Municipality, improperly used its regulatory powers to effectively seize Annapolis’ land for use as a public park without compensation. Halifax says that Annapolis’ claim is a veiled attempt to make taxpayers foot the bill for a decades-long development gamble. It sought summary dismissal of this part of Annapolis’ claim, while permitting other claims (for misfeasance in public office and unjust enrichment) to proceed to trial.

Canada-United States-Mexico Agreement, Article 14

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Article 14.8: Expropriation and Compensation #

1 No Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation), except:

(a) for a public purpose;

(b) in a non-discriminatory manner;

(c) on payment of prompt, adequate, and effective compensation in accordance with paragraphs 2, 3, and 4; and

(d) in accordance with due process of law.

Annex 14-6 Expropriation #

The Parties confirm their shared understanding that: