Property Challenges

Click for the link to the whole thread http://http://www.vwdov.ca/forum/showthread.php?s=&threadid=98279&pagenumber=3

As already pointed out, enjoyment and ownership are - legally - two completely seperate issues and have very distinct meanings. Property rights are enforced by the Provinces, and to date ALL of the provinces could take an individuals property WITHOUT compensation.

Some key pieces before legislators in BC are:

Heritage Conservation Act (this allows the province to UNILATERALLY decide a property is historic - therefore making it impossible for the owner to renovate, alter or submit his property for sale for another use)

-and-

Streamside Protection Regulation within the Fish Protection Act (BC) (this allows the provincial government to UNILATERALLY decide a property or portion thereof become provincial lands in order to effect protection of streamside species - effectively stealing land from the rightful owner - again all WITHOUT compensation)

Let's take a look at "without due process of law"

This basically means - "until so legislated". So, the two aforementioned pieces of legislation effectively make regard for "due process of law". Keep in mind, while PRECEDENT may exist dealing with private property rights, they are NOT CONSTITUTIONALLY PROTECTED. In fact, it is quite the opposite, the provinces are passing legislation to ensure they remain unprotected.

If private property rights were covered in the Charter (which they aren't) provinces wouldn't be able to enact legislation like the two noted above without using the NOTWITHSTANDING clause. Remember, unless protected withing the FEDERAL document specifically (I.E. ownership of property vice enjoyment of property) the Federal government cannot enact any laws infringing on provincial powers over property. (Read Ultra Vires)

What bothers most people about it's lack of constitutional protection is the lack of Compensatory regulation. The government can simply take your property.

"Enjoyment of property" IS most certainly protected. This is the basis for arguments about loud neighbours etc etc - they negatively affect your enjoyment. Once again, however, the government can simply take your property without compensation.

The Heritage Conservation Act includes the following line with regards to compensation:

(8) Nothing in this section authorizes the government to give any financial or other benefit to an owner except that which is commensurate with the reduction in market value of the designated property as caused by that designation.

Pretty piss poor really.

My house is worth 500,000 on the day before a Provincial designation is made on my property (at least that is what the property value was assessed at by the province). I have an independant inspection done (at my own cost, mind you) and it turns out that my house is actually worth 550,000. I get no compensation AND I get the joy of living in a Heritage home with the added benefit of no longer being able to alter my property OR building without writing to the provincial government to get permission. I know this is getting off topic for the thread, but let me just finish with another quote from the Heritage Conservation Act:

(2) Except as authorized by a permit issued under section 12 or 14, or an order issued under section 14, a person must not do any of the following:

(a) damage, desecrate or alter a Provincial heritage site or a Provincial heritage object or remove from a Provincial heritage site or Provincial heritage object any heritage object or material that constitutes part of the site or object;

(b) damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object from a burial place that has historical or archaeological value;

(c) damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;

(d) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846;

(e) damage or alter a heritage wreck or remove any heritage object from a heritage wreck;

(f) damage, excavate, dig in or alter, or remove any heritage object from, an archaeological site not otherwise protected under this section for which identification standards have been established by regulation;

(g) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of unknown origin if the site may be protected under paragraphs (b) to (f);

(h) damage, desecrate or alter a site or object that is identified in a schedule under section 4 (4) (a);

(i) damage, excavate or alter, or remove any heritage object from, a property that is subject to an order under section 14 (4) or 16.

So I can petition the government to let me... renovate, put in an in ground pool, paint my siding, replace my gutters, put in a garden on the front lawn, buy new curtains.... I mean come on...Oh, and just to ensure the government has you by the proverbial balls:

35 (1) Except as provided in section 11 or 14 (9), no compensation is payable to a person for any loss or damage, or for any reduction in the value of property, that results from the operation of this Act, the performance in good faith of any duty under this Act or the exercise in good faith of any power under this Act.

and

2) An action for damages must not be brought against the minister, an employee of the government, a member of a committee established or authorized under section 22 or a person who is subject to the direction of the minister, because of anything done or omitted to be done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this Act or the regulations.

Quite lovely indeed