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October 31, 2012
LETHBRIDGE, AB, Oct. 31,2012/ Troy Media/ – There is a considerable lack of legal balance in Canada between protecting public goods and individual property rights.
And that question – balancing individual property rights with public goods that benefit the community – is precisely what is at the heart of a recent case in British Columbia.
It pits the Musqueam Indian Band in the protection of an ancient burial ground against a condo developer seeking rightful benefit off the property.
Members of the Musqueam Indian Band have been, for months, staging protests in Vancouver against the B.C. government’s decision to grant a building permit to Century Group for a proposed five-storey commercial and residential project on an ancient Musqueam village site.
And from all accounts, the province has no intention of compensating the developer for his losses.
The condo developer has been wronged because he invested time and resources into the site, making use of a lawfully granted permit. Now, he has been ordered to pull out and return the site to its original state. That will cost him time and money through no fault of his own.
It is not clear why the B.C. government ever approved building permits on the site in the first place. In 1933 the federal government deemed the area a National Historic Site because it has ‘one of the largest pre-contact middens in Western Canada.’ Archaeologists at UBC also confirmed its significant value.
On Twitter, the Chilliwack New Democrats tweeted their outrage: ‘If someone dug up a place your ancestors were buried, what would you think of the “property rights” mantra?’
That sentiment speaks to the deep attachment the Musqueam have to the material remains of their ancestors.
While the sentiment is understandable, the tweet creates an unnecessary dichotomy between respecting the right to maintain the material heritage of a community for future generations and the rights of individual property rights now. Good policy solutions balance rights properly. The best solution would be for the government to recognize that they are asking the private developer and the Musqueam to bear the burden of a public good, which is the protection of a common heritage for future generations.
Properties of historical and archaeological value, such as this village site, deserve special public protection. When the government designates certain property to be of heritage value, this affects private owners, like this developer, who hold title to this property. But, the value of the Musqueam village site does not belong solely to the Musqueam. It belongs to the people of British Columbia and of Canada. It is our common history and heritage. Canada’s lack of legal framework compelling government to pay restitution when it infringes on our property rights in pursuit of public goods complicates matters.
It lacks constitutional protection for property rights – unlike the United States and most major European countries – leaving such rights are at the mercy of legislatures.
The Frontier Centre for Public Policy is finalizing a Canadian Property Rights Index that measures property rights protections across provinces and territories. We have discovered that absent constitutional protection, most provinces and territories avoid compensating because they can get away with it. Ontario’s Heritage Act, for example, specifically states compensation is not payable in most circumstances. Prince Edward Island’s Heritage Places Protection Act forbids compensation.
There are some signs of hope. Places such as Yukon suggest compensation, but it is not mandatory. British Columbia seems quite open to compensation, ‘preferably by agreement between owner and municipality, but failing that, by binding arbitration.’
Governments are interested in avoiding costs or liabilities. Strong public pressure can ensure that strong protection for property rights and due compensation will be written into existing laws. Or even better, pressure can be exerted to enshrine property rights and rights to compensation in our Constitution as is the case in the United States and in many European countries, to provide better protection.
Setting up tough procedural barriers to violations on property rights and making compensation mandatory send a message to legislators that citizens take property rights seriously and that they should think twice before infringing them without justifiable just cause.
In the case above, British Columbia should extend compensation to the private developer and the Musqueam. Private parties should not bear the full burden of public benefits.
We can find a better balance between competing rights when we try.
Joseph Quesnel is a policy analyst with the Frontier Centre, where he writes mainly on Aboriginal and property rights issues. www.fcpp.org
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