Does legislation designed to benefit society as a whole outweigh the financial interests of the individual? When dealing with issues of the environment and gun control, the answer has generally been yes in Canada. The looming spectre of a majority for Stephen Harpers Conservatives, however, has put that value in jeopardy.
The question was sparked last week when the Conservatives added a proposal to their platform to entrench property rights under the Charter. The idea has progressive groups worried.
According to Jean-Yves Lefort, a campaigner for the Council of Canadians, it would undermine the government's ability to protect the environment and public health.
"The inclusion of property rights in NAFTA led to an attack on our government's sovereignty in favour of corporate influence," he says. "Mr. Harper's decision to try this will open a Pandora's box."
Currently, Canadian governments must compensate individuals if their property is taken away from them to build a highway or a national park. Under the Conservative plan, the state could be required to pay landowners or businesses if it undertakes initiatives in the public interest, even if it doesn't explicitly expropriate land. "This proposal would put a chill on progressive government policies because," Lefort warns, "they will always have to worry about getting sued."
Conservative MP Gary Breitkreuz has already targeted the federal Endangered Species Act, which restricts development in the habitats of at-risk animals. The former Reform party rep cites the act as an example of Canadians "being arbitrarily deprived of their property."
Recent government initiatives in Ontario to curb sprawl might not have occurred if property rights were entrenched in the Charter. "The greenbelt would have been prohibitively expensive to enact," says David McRobert, senior counsel for the Environmental Commissioner of Ontario.
McRobert contends that the provincial initiative would have fallen well short of the 1.8 million acres currently protected from suburban subdivisions. "If property rights are granted, nothing like this will happen in the future."
Durham Tory MP Bev Oda would certainly prefer this course of events. She's part of a large group of Conservatives who were pushing for property rights long before this election.
Asked what her constituents could do with their property if there were no restrictions on it, Oda replies, "Golf courses are becoming very popular."
Development lawyer Jeffrey Davies agrees. He argues that lack of compensation for landowners in the greenbelt was undemocratic: "A greenbelt is a very valid planning tool. In Ontario, we did it wrong. If we had real protection of property, the government would have to think carefully before it took people's rights away."
Davies believes the farmers who had counted on flipping their land for development to finance their retirement were victims. The sympathetic image of the farmer who's lost everything as a result of the greenbelt was used effectively during the expropriation debate. While farmers certainly should have been given economic tools to keep farming, this industry-led PR campaign hid the fact that big development corps have an interest in a large proportion of land in the GTA zoned for agriculture.
The inclusion of property rights in Canada's Charter would find developers trying to use the courts as they have the OMB. Cases would be more likely to involve guys in suits petitioning for millions rather than old men in overalls looking to get their nest egg back.
"This plays out on a daily basis in the States. Developers buy land on speculation, propose something, and if environmental groups try to stop them, they get sued and the government is generally forced to compensate the developers," says McRobert.
Lawyer Clayton Ruby sees the potential for far-reaching changes in Canadian law, too. Bill C-68, which banned 553,000 guns in 1995, could fall, as could Paul Martin's new handgun proposal. "If you put property rights in the Charter, search and seizure must be minimally invasive. This may make it unconstitutional to ban handguns outright," Ruby says.
Ruby notes that changing the Charter could even affect the tax code. "There could be hundreds, perhaps thousands, of new cases. Once you put this in, you can revisit almost anything."