Wednesday, June 13, 2007

Natural Law, Property Rights and Other Assorted Contradictions

The current conflict between property rights and mining rights in Quebec (and elsewhere) involves many contradictions and opportunities for misunderstanding. Here are some examples:

  • Title deed - purchasing the right of ownership of an immovable property: the title deed produced on the sale of an immovable property in Quebec does not contain a proviso that states sub-surface ownership is not included in the title. It simply says: The Vendor sells to the Purchaser the right of ownership in the... immovable property. This is particularly curious in our era of improving consumer protection laws that are meant to increasingly provide information disclosure to buyers so they are fully informed about what it is they are purchasing. Given title emanates from the Crown, most people don't know they only own surface rights when they buy property, and how a property purchase generally represents the biggest purchase in someone's life, does the lack of disclosure on a title deed document make the State liable in any way for not taking steps to ensure disclosure of a significant fact impeding what otherwise appears to be unfettered ownership of the immovable property?

  • Right to inviolability and integrity of the person and privacy: the Quebec Civil Code contains provisions for the inalienable right of individuals to the "inviolability and integrity of the person" and to "privacy." No exceptions are stated for these rights - period. The Quebec Mining Act sanctions claims to mineral rights that weaken, undermine and even supersede the inviolability, integrity and privacy of persons.

  • Exclusive private use of land vs. mining use of land: The Quebec Civil Code confers rights of exclusive use to land on private property owners and the Quebec Mining Act confers rights that supersede exclusive use of land by private property owners in favour of prospectors and miners, putting the interests addressed by these two pieces of law in direct conflict with each other. It is not in the public interest to confer two conflicting rights on one piece of property - it creates the potential for great conflict and undermines social stability.

  • Investment in, transformation of and use and occupation of property: it is a precept of natural law that the party that invests his/her resources and labour into a property, transforms it by farming or building upon it, uses it for acceptable purposes such as a farm, dwelling or recreational habitation, and occupies the property on a continuing basis and does not let it lie fallow or vacant, has an inherent and unimpeded right to the exclusive use of that property, free from interference by others.

  • Right of the State to expropriate: the State may expropriate, according to the Quebec Civil Code, only for "public utility." The Quebec Mining Act assumes that all mining claims, regardless of their individual merit, potential economic value, geographic situation, proximity to local populations and potential impact on health and the environment, are always validly based on public utility - in fact, the Quebec Mining Act has been deliberately structured to ensure mining is the highest possible utility for any and all land (with rare and limited exceptions). Furthermore, there are no clear, consistent, fair and transparent rules to determine how a property is to be valued in the event of expropriation. It is left to the courts to decide if the mining company and the property owner cannot reach an agreement. This creates even more needless uncertainty for the property owner.

  • Right to prevent trespassing: the Quebec Civil Code provides the right for property owners to take action against any party that disturbs his/her possession of land, but the Quebec Mining Act permits a mining claims holder the right to expropriate a land owner to pass across that land or to use it for mining and mining-related purposes.

  • Peace, order and good government and liberté, égalité, fraternité: the basic premises of Quebec political culture speak to the fundamental values of stability, freedom, equality before the law, goodwill between all parties and sound government. The Quebec Mining Act confers rights in favour of prospectors and miners that undermine these values.

  • Property taxation: property taxes in Quebec are levied against the property owner based on market valuation. The Quebec Mining Act undermines the value of private property by creating uncertainty and by restricting the unfettered legal use of land by the property owner. Mining claims against a property usually significantly reduce its resale value at least for the duration of the life of the claims or until such time as the prospector's or mining company's intentions are fully known. In some cases it is even conceivable the private property's value could be permanently debased (e.g., if a mine opens but nearby property is not expropriated).

  • The Criminal Code: the Criminal Code of Canada enshrines the right of all Canadians to protect their person and their property from aggression and trespass, provided the use of force is avoided where possible, or when not possible (e.g., in response to unprovoked force) the amount of counter-force is reasonable under the circumstances. More specifically, the Criminal Code protects property owners from trespassing. Some prospectors and mining companies are reportedly trespassing on private property and there is confusion in the minds of some people about what rights prevail - defence of person and property or mineral claims?

  • Perception of conflict of interest: public officials (political and administrative) in most civil societies are expected to not only avoid conflicts of interest, but to avoid the perception of conflicts of interest. When public officials are legitimately contacted for a statement of their or their government's views on the rift between property rights and mining rights, they have a duty to clearly state their views and to avoid behaviour that has the appearance of conflict of interest in their dealings with the mining industry. The Quebec Mining Act creates unbalance, uncertainty and divisions that lobbying organizations and other proponents in the mining sector may choose to exploit. When public figures meet a mining proponent, attend public hearings at the request of a mining proponent or support a mining proponent there is a risk the public at large will perceive a conflict of interest by public officials. This serves to undermine the democratic principles of equality and fairness in the eyes of the citizenry.

  • Reason as the basis of law: while there is no over-riding rule that says all laws must be based on logic or rationality, it is a premise of natural law that both the ends of the law and the means by which those ends are achieved are reasonable. Many people believe the Quebec Mining Act violates the principle of rationality by placing mineral rights in the dominant position over public property and private property rights. In the modern world there are many potential uses for public and private land that are as legitimate and at least equal to the use of land for mining ore.

  • Other precedents - landlord/tenant laws: Given the protection afforded to tenants by the Régie du logement du Quebec to ensure landlords don't take advantage of them, it is remarkable there is not a similar Régie in place to protect land owners from prospectors and mining companies. Surely many of the same reasons the laws were developed to define and protect tenants rights would apply to private property owners when dealing with mining claims. My understanding is the mining industry has about 150 lobbyists working for it in Canada, and has billions of dollars in investment behind it at the individual company level. It is probably safe to say no private property owner in a rural environment has anywhere near the resources of this industry available to them. Why has the Quebec Government not sought to level the playing field by providing a similar level of protection to private property owners as it provides to tenants? Principles aside, there are probably just as many votes at stake.

  • First-come, first-served: the Quebec Mining Act allocates claims to prospectors based on the principle of first-come, first-served - yet a private property owner can purchase land before a mining claim has been registered and the private property owner, who was first on the land, has to take second place to the prospector.

  • Duty of consultation by government with citizens: Governments in democratic societies have a duty to consult with citizens on matters of public interest. The Government of Quebec is not required to consult with the populace prior to granting mining claims at a particular location. The Quebec Mining Act does not require the consent of a property owner before granting a mining claim. There isn't even a requirement in the Quebec Mining Act to give notice to a property owner when a mining claim affecting their property is being either sought or granted. This is particularly vexing given anyone 18 years or older with $31 for a prospector's fee and $50 for a claim can make and be granted one. All this is aided by a publicly accessible online database that does not even require the claimant to physically travel to the location of the claim. The net result is effectively anyone on the planet can buy for a pittance a claim that devalues a person's private property and disturbs their peaceful and private enjoyment of their property. And this can be done without the property owner's knowledge, input or consent. Where is the justice in that?

  • Freedom from arbitrary and discriminatory actions by government: Democratic societies are not meant to foster arbitrary and discriminatory actions by governments against their citizens. Yet the Quebec Mining Act enshrines the notion that private property owners are irrationally and categorically targeted by the government as a group of citizens that face unpredictable, unannounced and often frivolous trampling of their rights with little to no recourse. This amounts to discrimination against a class of people who are usually amongst the most productive in society, pay their taxes, obey the law and generally wish nothing more than to be left alone to enjoy their lives in peace.

  • Civil damages: It is a common practice in law that when one party wrongs another, even if that wrong was not intentional, the party suffering from the wrongdoing is entitled to compensation. Given that prospecting and mining can greatly wrong a property owner by causing them emotional distress, causing a devaluation of their property value, possibly rendering their property unsaleable, and by forcing them to spend time and effort to try to counteract the effect of mining claims, there should be immediate compensation to the property owner when a claim is granted. The amount of that compensation should be commensurate with the significant personal and financial upheaval a prospector or mining company causes the property owner.

  • Good corporate citizenship: companies, like people, are judged by their actions not their words. Company management and employees live in the world where they work and they have a duty to respect the wishes of the people that have a stake in their activities. There is no moral basis for a business interest to supersede a fundamental right of an individual to enjoy their life peacefully and privately. Our laws should foster good corporate citizenship not promote its erosion - it's in the public interest.

  • The right of the commons vs. the right of one party: The way the Quebec Mining Act is written not only places private property in jeopardy to mining rights, but also public or Crown land. The users of public lands have a legitimate stake in their assignment and there is no basis in natural law to affirm mining rights over other uses of public lands. The commons should be at least as legitimately available to the public as they are to private parties. Before mining rights are granted to private parties on public land the government has a duty to have a public discussion with its citizens to determine what the best us of those public lands should be.

  • Duty of the Minister to act in the public interest: it is the duty of a Minister of government to act at all times in the public interest. Furthermore, it is the moral obligation of a Minister and government to structure laws so that conflicts are avoided and where they do arise ensure they are resolved quickly and fairly. This is a fundamental requirement for the success of democracy and civil society. Failure to act in this manner subverts public confidence in our system of government and discourages people from buying property and investing in their futures. Property ownership is arguably one of the most important foundations of social stability in a society. Given how much emphasis is placed on home ownership by our governments, one would think that property ownership would be better protected. If it isn't better protected, as the pressure to consume ever-increasing amounts of resources grows, we will devolve towards serfdom.