An edited version of this article first appeared in the August, 2003 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.
Deer Me—It’s a Property Rights Revolution
Should property rights be entrenched in Canada’s constitution? It’s a question that keeps resurfacing in Canadian political discourse, but most recently I heard it being asked at the first public meeting of the Lanark Landowners Association (LLA).
The LLA was founded by four farmers and an electrician in Lanark County, south of Ottawa. They began as neighbours simply swapping complaints about the increasing nuisance to crops and gardens from local herds of deer. They observed that after stricter gun controls were enacted in 1995, fewer sportsmen have been willing to go through the necessary red tape and expense in order to hunt deer legally. The result: a population explosion among eastern Ontario’s deer.
One Lanark soybean farmer has counted more than 100 deer grazing in his fields at a time. He estimates crop losses of over $40,000 per year. He and some other farmers complained to the Ontario government, seeking permits under the Fish and Wildlife Conservation Act to kill deer when they invaded their property. The reply? It’s your own fault for growing crops that deer like to eat.
Aside from decimating farm profits, the deer create another problem: they cause nearly half of all car accidents in Lanark. Some of the 90 residents who attended the meeting reported that their elderly neighbours are afraid to drive after dark. While deer-car collisions are not usually fatal (except to the deer) humans do occasionally die or suffer severe injury from them.
Parenthetically, this is just another example of the unintended consequences of legislation. Gun control was supposed to save lives, but may actually cause more deaths from Bambi bumping.
But LLA members had other beefs too. Due to the recent amalgamation of rural and urban municipalities, farmers with hundreds of acres now found themselves living in "cities", subject to the same property standards bylaws as people in townhouses. Weed control, machinery storage, tree cutting, peeling paint—all those rules and regulations that city dwellers like to impose on their neighbours to raise property values—actually threaten the profitability of, and therefore reduce the property value of, farms.
The Lanark Landowners were angry. After discussions with their MP, Canadian Alliance Critic for Intergovernmental Affairs Scott Reid, LLA directors were able to articulate the common thread tying their concerns together: there just ain’t no respect for property rights in this country. They’ve vowed to change that--by lawsuits against the government, public demonstrations, or even acts of civil disobedience. Meanwhile, they ponder a longer-run question: should property rights be entrenched in the constitution?
The United States wrote property rights into theirs. The Fifth Amendment provides: "No person shall…be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." Has it done Americans much good?
Not according to James Bovard, author of the book Lost Rights: The Destruction of American Liberty. In fact, over the past two decades, the U.S. has enacted so many federal and state laws circumventing the Fifth Amendment that Bovard calls it a "war on property rights." Foremost among them are the forfeiture laws—hundreds of them—that allow the government to seize property for minor infractions, or even on mere suspicion of an offence, placing the onus on the property owner to try to get it back.
How have these laws managed to withstand constitutional challenges? U.S. courts have adopted the ancient legal fiction that it is the property, not the owner, that is on trial for the offence—and only persons, not property, have rights under the Bill of Rights. Baloney? You betcha. But it’s being done daily.
Apart from forfeiture, the U.S. has other laws that don’t physically confiscate property, but restrict property usage so severely as to wipe out most of its value. Often these take the form of environmental regulations. The question of how much regulation constitutes an unconstitutional "taking" of property is still being hotly contested through U.S. courts
The point is that no matter what protection you write into a constitution, it can’t withstand the onslaught of a judiciary, a legislature, or worse yet a citizenry, that either doesn’t understand the importance of the institution of private property or doesn’t respect it. There are as many outlandish ways to interpret away a property rights guarantee as there are collectivists who never got past Marx in their adolescent reading.
What is really needed to bring back property rights in the western world is a grass-roots philosophical revolution. The average citizen must understand that property rights are not just a matter of keeping the state from seizing more wealth from those who are already rich. Quite often, it’s a matter of preventing the rich from using the state to regulate and in effect, to confiscate, the property of the poor.
A constitutional amendment might help only because it would get people thinking and talking about the issue. But in my view, the activities of groups like the Lanark Landowners Association and OPERA—the Ontario Property and Environmental Rights Alliance—will ultimately be more effective than any constitutional amendment in implementing change.
- END -