How Does the Common Law Protect Rights in Canada?

All private land in Alberta is held under a common law grant from the Crown (with the exception of land held under Aboriginal Title, for example, on reserves). The common law recognizes that all Albertans, as subjects of the Crown, have broad rights to own, use, and enjoy property. But such rights are not unlimited. For example, the law of nuisance prevents landowners from carrying out some activities that may be harmful to their neighbours. The common law also guards property owners against unauthorized government interference. By the same token, pursuant to a valid enactment (legislation) the government may regulate, and even confiscate, private property.

This power is the modern form of the ancient Royal prerogative to take the property of the Crown’s subjects, whether for  the purpose of defending the realm, or more broadly in the public interest. Legislation allows, for example, a municipality to pass zoning bylaws to restrict the use of land, or a federal authority to expropriate land to expand an airport. The courts will confine government strictly to its statutory powers (and, as a general rule, will resolve any ambiguity in the legislation in favour of the property owner), but they may not question the wisdom of government action. Nor do the courts have any inherent power to direct that compensation be paid to private owners for any loss resulting from legitimate government action.

On the contrary, the courts have held that all compensation claims in Canada for the expropriation of private property are based in statute. When a landowner claims compensation for a taking of property, the courts must determine whether the Legislature intended for the statute authorizing the taking to provide compensation. The courts have ruled that compensation is not only intended when the statute says so expressly, but will also presumed when the statute is silent on the right to compensation: the Legislature cannot fairly be supposed to intend that private property be confiscated without any compensation being provided, the courts have said. If the Legislature means to authorize a taking without compensation, it must make its intention clear.