Property rights or Surface rights in Alberta define the right of property owners to utilise, settle or sell land, water, and other subsurface property (except the resources designated by the Crown) as per their own discretion. The parameters of the property that owners can sell or use usually comply with the ‘heaven to hell’ concept. This concept enables a landowner to utilise his property up to the exterior and upper margins of the land.
Surface rights in Alberta vary significantly from property rights in other democracies such as USA and Australia. Possession of property doesn’t necessarily imply ownership in Canada. A recent revision by the Provincial Court of Alberta led to the establishment of the Property Rights Advocate Act which aims to further streamline the rights to property ownership in the region.
To ensure a clearer understanding of these provisions, here’s a complete guide to property rights in Alberta:
Legislation determining Property Rights in Alberta
Defining the property rights for provinces such as Alberta which have a varied array of sub-surface resources can be intricate and demanding. Property ownership in Canada complies with the British principle of ‘parliamentary sovereignty.’ This principle grants the proprietorship of all the Pore Space in the region to municipal, provincial and federal authorities. However, there are multiple other legislations which determine surface rights in Alberta, including:
- Alberta Land Stewardship Act
- Law of Property Act
- Surface Rights Act
- Mines and Minerals Act
- Expropriation Act
Beyond these legislations, there are other laws such as the Carbon Capture and Storage Funding Act which establish the ownership of sub-surface property in Alberta. To understand these provisions and their relevance to your residential or commercial property, it is recommended to consult an experienced property lawyer.
Property Rights under the Common Law
For the province of Alberta, proprietorship and usage of land are determined by the statutory as well as the common law. The common law reserves the right to ownership of the property to the holder of the land inclusive of the space above the surface. The provincial court of Alberta also renders a crucial role in regulating the control and expropriation of property in the region by municipal authorities and utility companies.
The role of Property Rights Advocate Office
Established post the institution of the Property Rights Advocate Act, Property Rights Advocate Office aims to promote equity regarding the use of property in Alberta. The Office addresses various concerns regarding property rights including the regulation of:
- Environmental Pollution
- Neighbour to neighbour disputes
- Mineral Surface Rights
Expropriation of Property
Expropriation of property in Canada is defined as the occupation of a privately owned property by a municipal, provincial or federal authority for the benefit of the community. Although the government reserves the definitive right to ownership of land in the province, expropriation of private land without the presence of a clear intention or the payment of the necessary compensation is considered a violation of surface rights of the owner.
This was a brief guide to property rights in Alberta. Inappropriate expropriation of property by private individuals or authorities can be an issue of critical concern for most landowners. Consult a skilled law firm to understand your surface rights and ensure a valuable trade of your property.