Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality

Forthcoming, Supreme Court Law Review

21 Pages Posted: 2 Jun 2023 Last revised: 27 Jul 2023

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: May 31, 2023

Abstract

The Supreme Court’s recent decision in Annapolis Group v. Halifax Regional Municipality has reinvigorated common law protections for property rights. The majority opinion affirmed the existing test for a constructive taking giving rise to a right of compensation, which requires that 1) the government must acquire a beneficial interest, and 2) the owner must be deprived of all reasonable uses. However, the majority adopted a very broad understanding of what constitutes a beneficial interest, holding that the acquisition of an “advantage” is sufficient. In coming to its decision, the majority situated the doctrine of constructive takings within a broader common law tradition of the rule of law and protections for individual rights, including property rights. The majority held that all takings of property give must be authorized by law. Moreover, all takings give rise to presumptive common law right to compensation, which can only be rebutted by legislation indicating a contrary intention. The dissenting justices differed sharply from the majority, indicating that they would have required the acquisition of a true proprietary interest by the government as a precondition for compensation. In situating the doctrine of constructive takings within the common law rights tradition, the majority’s approach is ultimately based on an essentialist understanding of property. The essentialist view holds that certain incidents, such as the right to exclude, the right to beneficial use, or the right to set the agenda, are understood to be essential to the concept of property. Accordingly, a deprivation of one of these incidents can amount to a taking even if the government does not itself acquire a property right. By contrast, the dissent is based on a nominalist understanding of property, according to which property can be freely redefined by the state from one context to the next. On this approach, compensation is only payable for a constructive taking through a strict analogy to the requirements under statutory compensation regimes, including the need for the government to acquire a formal proprietary interest. The majority’s renewed commitment to common law protections for property rights could have implications for other areas of law, beyond the doctrine of constructive takings. These include procedural protections for property rights, statutory rights of compensation, judicial review of administrative actions that restrict property rights, and the development of private law doctrines, including trespass.

Keywords: property law, expropriation, takings, rule of law, common law, individual rights, property rights, constructive takings, de facto expropriation

Suggested Citation

Lavoie, Malcolm, Property Rights, Takings, and the Rule of Law: Assessing Annapolis Group v. Halifax Regional Municipality (May 31, 2023). Forthcoming, Supreme Court Law Review, Available at SSRN: https://ssrn.com/abstract=4465525

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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