PIPELINE OBSERVER Winter 2022 by CAEPLA

PIPELINE

WINTER 2022

CANADIAN ASSOCIATION OF ENERGY AND PIPELINE LANDOWNER ASSOCIATIONS

CONTINENTAL ASSOCIATION OF ENERGY AND PIPELINE LANDOWNER ASSOCIATIONS

OBSERVER

HOW TO BLOW UP A PIPELINE New manual for extremists should worry landowners

Captured to Concierge CER coordinates a war on pipelines

Protection of Property and Pipelines

Private land and pipelines should not face threat of violence

Pipeline Decommissioning Enbridge’s Line 3 taken out of service in Manitoba

CONTENTS

WINTER 2022

CANADIAN ASSOCIATION OF ENERGY AND PIPELINE LANDOWNER ASSOCIATIONS

04 08

14 Cover: iStock/ ajansen; Yakobchuk; koya79

From “Captured” to Concierge

CER coordinates war on pipelines, and your property rights are collateral damage

What is 30 x 30?

“Target 1” in Canada is the latest green global land grab landowners need to prepare for

Bombshell Book: How to Blow Up a Pipeline

“Landmark” Pipeline Decommissioning in Manitoba

We Don’t Know What We Don’t Know

Inflation is Here

Central Planning is “Planned Chaos”

Badly Drawn and Ostensibly Arbitrary

To Understand Economics, First Understand Private Property

Property Rights and Pandemics

Free Speech is a Property Right

New extremist manual should concern landowners

First segment of Enbridge’s Line 3 safely taken out of service

Landowners can be confident in real-time research being conducted on Line 3 decommissioning

ttawa manufactures over half a trillion dollars O through COVID-19

OVID economic policies are sowing uncertainty C for landowners

The Best of Pipeline Observer: The dark history of expropriation in Canada

Early establishment of private property rights recognized reciprocally

From clubroot to COVID, Canadians can learn from pipeline landowners

Ontario city looks to censor expression on private land

Property Rights are Fundamental to Free Society Governments often seek to violate property rights to benefit special interests

Pipeline Observer is a publication of the Canadian Association of Energy and Pipeline Landowner Associations and the Continental Association of Energy and Pipeline Landowner Associations 257, 918 Albert St., Regina, SK S4R 2P7; 306-522-5000. All contents copyright ©2022 CAEPLA. Advertising information: advertising@caepla.org | Editorial: editor@caepla.org Administration: admin@caepla.org | caepla.org | Twitter: @CAEPLA

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PIPEL INE OBSERV ER

BY ANNETTE SCHINBORN

From “Captured” to Concierge The CER is coordinating the war on pipelines – and your property rights are collateral damage

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iStock/Allexxandar; filo

or decades pipelines have been out of sight and out of mind, making it difficult for landowners to get their legitimate issues taken seriously. It took landowners working together, ultimately through CAEPLA, Canada’s leading national grassroots property rights organization, to put their concerns on the radar of government and industry. The goal was never to stop pipeline development, it was to get the property rights of landowners acknowledged and respected. The greatest infringement on a landowner’s property rights is the ability of the government regulator to grant energy corporations right of entry. This power of the state to expropriate made win-win business agreements impossible and made every proposal from a company “an offer you can’t refuse” — literally. Fast forward to today, pipelines are no longer out of sight and out of mind.

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Shortly after, in 2018, it was suddenly decided the NEB needed to be replaced with the Canadian Energy Regulator (CER). The CER is the NEB on steroids.

Reconciliation

Yet landowners are faced with even greater infringements and potential threats to their property. But this time, pipeline companies are not the enemy — in fact, they are natural allies against a growing threat to your property. We have been alerting Pipeline Observer readers to the threat for a few years now.

For most of its history, the National Energy Board (NEB) had been “captured” by industry. Meaning the regulated energy companies had succeeded in becoming the regulator. The fox really was in charge of the henhouse. But toward the end of the NEB’s existence, it was largely captured by another “industry” altogether — the green movement.

“If the new generation of anti-pipeline activists...pick up their war on energy where they left off prior to COVID-19, pipeline landowners will be caught in the crossfire.”

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This “new and improved” energy regulator is not improved in any way that benefits landowners. The CER — remember this is supposed to be an energy regulator — was in fact reborn to bolster not only the green movement, but to add another item to the agenda: reconciliation. Reconciliation is the Trudeau Liberals’ explicitly political program to repair all damage done to and address all grievances of Indigenous people arising from nearly 500 years of European presence in what is now Canada. To that end, the reconciliationfocused CER is now playing the role of concierge for First Nations activists and their travel companions in the green movement when it comes to accessing Canada’s federally controlled energy corridors. That means accessing the property of pipeline landowners in those energy corridors. We have discussed how this will happen in previous issues. One special feature, from the Summer 2020 issue, “A Quiet Revolution,” details the government’s plan to open your property up to First Nations occupation. The bottom line is, “Aboriginal monitors” deputized by the CER can tie down your farm, ranch or woodlot in the name of heritage and archaeology if any bones, carved stones or other artefacts are found. Under the

“It only takes one extremist, one eco-terrorist...to walk the red carpet rolled out by the CER onto your property.”

circumstances, a random arrowhead found — or placed — on your property can become the figurative tip of the spear in the latest offensive in the war on pipelines and property rights.

Facing page: iStock/ Bilanol; GeorgePeters; this page: Holger Motzkau 2010, Wikipedia/Wikimedia Commons (cc-by-sa-3.0)

How to blow up a pipeline This puts pipeline landowners in a perilous position. Not only has the regulatory regime changed to empower First Nations and green activists to more effectively paralyze the pipeline industry, but the character of the movement is changing, too. As Dave Core explains later in this issue with his review of the book How to Blow Up a Pipeline (page 10) the gloves are off. Passive resistance is a thing of the past; a new militancy is mobilizing the movement to the point of terrorism. Let me be clear: I am not saying all, or even most, First Nations and green activists are potential terrorists. While we may disagree with many of their perspectives and goals, we in the pipeline landowner movement are also, as stewards of the land, committed conservationists who care about the natural environment. We also support the aspirations of Indigenous Canadians to discover and recover the artefacts of their culture and history. And we encourage voluntary and constructive cooperation in what can often be the fascinating rediscovery of Indigenous heritage on this continent. But, it only takes one extremist, one eco-terrorist to infiltrate First Nations and green activist groups to walk the red carpet rolled out by the CER onto your property.

Environmentalist David Suzuki.

You may be thinking, ‘Come on, Annette — it’s just one book by some fringe radical in Europe or some other country. Let’s not get carried away.’ I wish that were so. Far from being a fringe publication, the book has been welcomed across the media and was favourably reviewed by The New Yorker early last year. And no sooner had Dave finished reading the book than Canada’s own darling of the media and political class, David Suzuki, declared, “There are going to be pipelines blown up.”

Security is CAEPLA’s new top priority Suzuki made his threatening remarks at an Extinction Rebellion protest. I won’t go into what that apocalyptic group is all about, but if you want to enter into a whole new world of crazy, feel free to Google them. My point now is that the CER

has opened your property to activists advancing the Trudeau government’s reconciliation and climate agendas. You may never really know who has tagged along or what they have been reading and now believe. So, as CAEPLA has always stressed, vigilance will be more important than ever. Starting this year, security is our top priority, and security is a product of properly defended property rights. Make no mistake, if the new generation of anti-pipeline activists, whether of the First Nations or climate change stripe, pick up their war on energy where they left off prior to COVID-19, pipeline landowners will be caught in the crossfire. And the destruction of your property rights won’t be collateral damage – the destruction of your property rights and industry’s is the whole point. How to Blow Up a Pipeline makes this crystal clear. Pipelines are unlikely to be out of sight, out of mind again any time soon. 

Annette Schinborn is chief executive officer at CAEPLA, having served previously as COO and director of landowner relations. Before joining the team at CAEPLA, Annette worked with grassroots non-profits including the Canadian Taxpayers Federation, the Prairie Centre and the Western Canadian Wheat Growers Association. She has worked closely with farmers, ranchers and other landowners on issues such as tax and agricultural policy, energy transport and property rights.

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PIPEL INE OBSERV ER

BY MARGARET BYFIELD

What is 30 x 30? Known as ‘Target 1’ in Canada, it’s the latest green global land grab landowners need to prepare for

he 30 x 30 program is a plan advanced by international radical environmental activists to permanently protect 30 per cent of the

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world’s land and ocean by 2030, in their natural state. Proponents argue climate impacts are human-caused, and permanently preserving 30 per cent of the world is necessary to reverse climate change. This action must be taken immedi-

ately, they claim, to avoid impacts on the ecosystem and wildlife. However, the science and data do not justify these extreme policy measures. This concept was first officially advanced in the 1990s when the United Nations Biodiversity Treaty

“The ultimate goal is hard to miss. This is about controlling the land, our oceans and the people.”

iStock/MHJ; jfelton

this target to 30 per cent, and the Government of Canada has readjusted its target to 25 per cent by 2025. In America, the secretary of commerce proclaimed 30 per cent is only the beginning. This is the first step toward achieving what is known in the environmental community as the “Half Earth” agenda, where 50 per cent of the world is to be set aside for nature.

called for protecting 17 per cent of the land and ocean. The Canadian government has been working toward this goal through the “Canada Target 1” initiative. As we move closer to 2030, the international community has changed

Nine years, 400 million acres

global warming below 2˚ — come from computer models populated by selective data and a large portion of subjective assumptions that produce wildly inaccurate projections. Nevertheless, all nations are being called to fundamentally change how we use our land and oceans, which produce the food, fibre, energy and minerals our world needs. Proponents are working hard to present this program as one of “conservation,” but the ultimate goal is hard to miss. This is about controlling the land, our oceans and the people. 

If this is beginning to sound more like a marketing campaign and less like science-based policy, that is because the goal is not about conservation, it is about controlling the resources. For instance, in America, proponents claim we are losing a football field of nature every 30 seconds, which translates into approximately 3,000 acres a day and 11 million acres in 10 years. Yet, to reach the 30 per cent goal, Americans must permanently protect an additional 400 million acres in nine short years. The 30 x 30 agenda and the “climate crisis,” is built on flawed science. All of the projections — such as over one million species going extinct in the coming decades and 30 per cent of the Earth must be set aside to keep

Margaret Byfield is the executive director of American Stewards of Liberty (ASL). She was raised on a large cow calf operation in central Nevada purchased by her parents, Wayne and Jean Hage in 1978. Her family experienced unprecedented regulatory pressures that eventually led to Hage v. United States, the first federal lands grazing case filed in the United States Court of Federal Claims. The case was in litigation for 27 years, during which time Margaret launched the property rights organization Stewards of the Range. Stewards merged with the American Land Foundation in 2009 forming ASL.

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B Y D AV E C O R E

Bombshell Book: How to Blow Up a Pipeline Climate activists are reading a new extremist manual and landowners should be wary

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iStock/gunnarAssmy; CSA Images

ome months ago, I saw a tweet from someone I follow on Twitter. He is a university professor influencing many young people, has a pipeline on his property, writes a landowner blog and is a director for the Pipeline Safety Trust. Pretty credible guy — or so I thought. He wrote he was reading a book titled, How to Blow Up a Pipeline. First, I couldn’t believe someone would actually write such a “how-to” book. Second, I couldn’t believe the professor didn’t provide any context when he flippantly made the comment, which could lead someone to think blowing up a pipeline is something rational people should do, much less talk about. After all, the Pipeline Safety Trust is a non-profit charity promoting pipeline safety through education and advocacy. CAEPLA is also a non-profit promoting pipeline safety through education and advocacy. That someone representing an organization proclaiming many of the same goals as CAEPLA could seemingly promote what smacked of terrorism defied belief. The sad irony is the Safety Trust was created as a result of a pipeline explosion in Bellingham, Wash., which

tragically killed two 10-year-old children and a young fly fisherman. Frankly, I found the professor’s tweet and his response when I questioned him about it, upsetting. Especially given his leadership role with an organization originally created and financed as the result of a court judgement against a pipeline company. Perhaps it is because I just didn’t want to believe and can’t comprehend why anyone would write a book promoting violence and the destruction of private property that I avoided reading, How to Blow Up a Pipeline: Learning to Fight in a World on Fire.

Climate activists interrupted More recently, however, I was forwarded an interview The New Yorker did with the author of the book (Andreas Malm) and found his promotion of violence deeply disturbing. Recognizing climate activists like Malm — whose claim to fame is as “a climate scholar, saboteur of SUVs and coal mines” and who calls for the climate movement, Extinction Rebellion (XR), to escalate its tactics to force fossil fuel extraction to stop — have an agenda, I decided I needed to read the book and put this brazen agenda of property destruction on landowners’ radar. Malm admits COVID-19 interrupted the plans of the climate change movement, and now — as people are slowly going back to normal — they

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“COVID-19 interrupted the plans of the climate change movement, and now — as people are slowly going back to normal — they intend to make up for lost time by escalating their efforts to paralyze production to fossil fuels.” intend to make up for lost time by escalating their efforts to paralyze production of fossil fuels. Remember the seemingly long ago, pre-COVID protests during the winter of 2019/2020 when activists blockaded railways and disrupted distribution of many goods, particularly agricultural products, costing the Canadian economy billions?

Uprooting your property rights The published goal of leading climate activists is to pick up where they left off pre-COVID and escalate their war against private property. For the moment, leave your opinions on COVID and the vaccines to the side. Do you believe the government suspension of property rights via restrictions, lockdowns, business closures, mandates and other draconian “emergency” measures were justified or effective? Malm insists that protecting the life-support systems of the planet also calls for similar government emergency action — the uprooting of your property rights. Think “climate lockdowns.” What do you imagine this could mean for family farm and ranch operations? Malm continues to write: “If taboos against interfering with private property have been broken…If a pandemic can induce governments to take emergency actions, why can’t a climate breakdown that threatens to kill off

Andreas Malm giving a lecture at Code Rood Action Camp in 2018 in Groningen.

the very life-support systems of the planet do the same? After this, there can be no excuses for passivity.” Do you hold your property rights to be sacred, something that should not be interfered with or infringed upon?

Government and media utters threat The six words in large print on the back cover of Malm’s book spell out his and the climate movement’s premise, promise and threat that is their ultimate agenda: “Property will cost us the earth.” His thesis is that fossil fuels are the worst kind of evil and those who support their use are the enemy. As much as we might like to, we can’t write Malm and his supporters off as mere crackpots who can be ignored — not ever.

“I think I know what Suzuki was reading last year.”

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On Nov. 21, David Suzuki, a familiar face and name in Canada’s media and political class, said, “There are going to be pipelines blowing up if our leaders don’t pay attention to what’s going on.” Coincidence, or more coordinated talking points from a movement emboldened by current governments and those governments’ COVID policies? I think I know what Suzuki was reading last year. At an Extinction Rebellion event in Victoria, B.C. — the same Extinction Rebellion incited by Malm — titled “A Funeral for the Future,” Suzuki suggested Canada needs to change its food supply chain as a way to cut fossil fuel emissions. He says people in northern countries should not be able to buy fresh produce 12 months a year. This kind of talk puts a bullseye on the backs of already beleaguered agricultural producers. Understand, Malm and the climate change movement do not view private property as something to be respected. He makes the mission behind his book clear when he says, “It is better to die on your feet than to live on your knees — better to blow up a pipeline than to burn impassively.” This is clearly a call to revolution. So, all agricultural landowners, especially pipeline landowners, better start paying attention, which is why CAEPLA always reminds landowners to remain vigilant. Opposing the mission statement set out in Malm’s book is CAEPLA’s raison d’etre. Property rights will ensure safe pipelines. Property rights are what will provide landowners peace of mind. And property rights are what will save the planet.

So, What Does How to Blow Up a Pipeline Actually Say?

F Facing page: wikipedia.org Creative Commons Attribution-Share Alike 2.0 Generic license

ortunately, it’s not a technical manual. Malm’s book is not a step-by-step explanation of “how to blow up a pipeline.” It’s more of a philosophical sermon to the Extinction Rebellion (XR) movement on how passivity (peaceful protest) has not and does not work, and for the climate change movement to “succeed” and conquer capitalism, it has to become “violent” and destroy property, damn any unintended consequence.

Malm writes: “So here is what this movement of millions should do for a start: announce and enforce prohibition. Damage and destroy new CO2 emitting devices. Put them out of commission, pick them apart, demolish them, burn them, blow them up. Let capitalists who keep on investing in the fire know that their properties will be trashed…Not only

new but existing, young and old existing CO2 emitting devices would have to be deactivated. “Sabotage is a sort of prefigurative, if temporary, seizure of property. It is both a logical, justifiable and effective form of resistance and a direct affront to the sanctity of capitalist ownership.” The author’s alternate large print title on the back of the book, “Property Will Cost Us the Earth” makes it obvious he sees property and capitalism as the philosophical enemy of climate change warriors and, therefore, all property is vulnerable. Malm argues that pipelines and other isolated property are the easiest place to start as he lists historically successful violent campaigns that began with pipeline attacks. (Iran, South Africa, Palestinian Resistance in 1936, Nigeria, Egypt, India, Yemen). The industry itself helps him make the point with this quote he includes from a 2015 Pipeline and Gas

“Pipelines are very easily sabotaged. A simple explosive device can put a critical section of pipeline out of operation for weeks.” Journal article “Pipelines are very easily sabotaged. A simple explosive device can put a critical section of pipeline out of operation for weeks.” Malm is a megalomaniac, but he is reaching impressionable young followers with the message that destruction and violence will provide them, and him, euphoric satisfaction as they destroy energy infrastructure and other property — the same energy and

infrastructure that has and is lifting people out of poverty around the world. It is the same energy infrastructure that lies buried beneath thousands of farms and ranches across North America and under some of the most densely populated regions of the continent. Malm’s message is madness, but it cannot be ignored and must be taken seriously. 

Dave Core is the founding and former president and CEO of the Canadian Association of Energy and Pipeline Landowner Associations. He presently serves as CAEPLA’s ombudsman and director of special projects. Core is also the principal of Dave Core and Associates, a consulting firm specializing in land matters and industrial relations.

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B Y D AV I D C O L L

“Landmark” Pipeline Decommissioning in Manitoba

First segment of Enbridge’s legacy Line 3 safely taken out of service

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“The CAEPLA workshops we held every year were very well attended. We received a lot of honest feedback from landowners that we incorporated into our activities and the project was all the better for it.”

Images supplied by CAEPLA

or more than 50 years, Enbridge’s Line 3 pipeline ensured the safe and reliable delivery of energy from the oilfields of Alberta to the Midwestern U.S. and refineries across North America. Its legacy continues with a new pipeline along essentially the same corridor, stretching 1,765 kilometres (1,097 miles) from Edmonton, Alta., to Superior, Wis. Line 93, as the replacement pipeline is named, came into service Oct. 1 following more than eight years of extensive community engagement and thorough environmental, regulatory and legal review. “CAEPLA was heavily involved in the Line 3 project, from construction through reclamation and decommissioning,” says Enbridge construction manager Allen Sawatzky. “CAEPLA monitors provided a landowner’s perspective to the construction team and the CAEPLA workshops we held every year were very well attended. We received a lot of honest feedback from landowners that we incorporated into our activities and the project was all the better for it.” “This was a landmark undertaking that has redefined how Enbridge builds major projects,” says Guy Krepps, Line 3 project director in Canada. “The new pipeline was designed and executed with state-ofthe-art construction materials and

a strong safety and environmental performance. The level of public engagement, which included Indigenous communities and groups, was unprecedented and led to a better outcome, both for Enbridge and communities near the right-of-way.” In Canada, Line 93 has been operating since December 2019, leading to a focus on reclaiming the pipeline construction right-of-way and safely removing the legacy Line 3 pipeline from service, a process known as decommissioning. Decommissioning of the first of four segments began in August and was completed ahead of schedule in Manitoba by mid-October, thanks in part to a dry summer and fall, with zero safety or environmental incidents. A joint venture of Métis N4 Construction and Steel River Solutions served as the general contractor for an area covering 260 km from Cromer to Gretna, Man., with a peak workforce of 55 people. Indigenous men and women comprised approximately 75 per cent of the workforce. “Decommissioning is a logistically challenging job that N4-Steel River handled very successfully,” says Sawatzky. “It’s different than building a pipeline — you don’t just work from kilometre zero to kilometre 100 in a straight line. You go back-and-forth, from site to site, and this particular job involved 31 different locations for segmentation, valve isolation and railway fill.” 

1. (Left) Inspector Sandy Armstrong shows a section of pipe following installation of a steel cap. After the pipe segment is cut, a cap is fabricated onto the ends of the pipe and coated with epoxy. This permanently seals the pipeline at that location and backfill can then be completed. 2. Once the cap is in place, backfilling of the excavation begins. 3. With backfill completed and the topsoil replaced, the land is ready to be returned to its pre-construction state. 4. A worker looks on during removal of a valve south of Morden, Man. 5. Vehicles and equipment were washed and disinfected under a strict biosecurity protocol to prevent the spread of noxious weeds. 6. Inclusion was an important component of the Manitoba project, with the selection of an Indigenous-owned general contractor and approximately 75 per cent of the decommissioning workforce made up of Indigenous men and women. From left: Travis Favel (Enbridge); Ellis Cochrane (Peguis First Nation); Dennis Esperance (Enbridge); and Jade Dewar (Manitoba Métis Federation).

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PIPEL INE OBSERV ER

BY ANNETTE SCHINBORN

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We Don’t Know What We Don’t Know

Real-time research for Line 3 decommissioning a critical step going forward

iStock/filo

here are many unknowns surrounding pipeline abandonment. Depending on who you listen to, there are projections and assumptions as to when an abandoned pipe might corrode through and cause a collapse, the erosion of topsoil into the pipe or turn the pipe into a water conduit, to name a few. Landowners have been told it could be as soon as 50 to 100 years or as

long as 1,500 years before a pipe will corrode through. Nobody really knows, because “real time” research has never been done. Instead of finding out for sure, the modus operandi of both the national regulator and the pipeline industry has always been to kick the can down the road — why worry about and spend money on something that might not be a problem for a millennium? CAEPLA landowners are concerned about abandonment and what it might mean to their property. They don’t

want to leave their children or grandchildren — or their grandchildren’s children or grandchildren — what amounts to an abandoned gas station. The landowner’s name is on title, so their main concern is being left with an abandoned pipe and all its liabilities after the old National Energy Board (NEB) declared one “abandoned in place.” CAEPLA and its landowner associations pressured the NEB to prioritize abandonment, and in 2008 they finally did.

“The modus operandi of the national regulator and the pipeline industry has always been to kick the can down the road.”

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Pipeline Safety Act gives NEB jurisdiction As one might expect from bureaucrats, they put the cart before the horse and decided to figure out how much money to set aside to address abandonment before exploring what the issues and true costs are of such a move. At great expense, CAEPLA and its member associations participated in the Abandonment Costs Estimates Hearings. Unlike the pipeline companies or its industry association — the defunct Canadian Energy Pipeline Association (CEPA) — CAEPLA hired experts and provided evidence at the hearing. The companies presented a compilation of studies (a literature

review) with a disclaimer that CEPA could not guarantee its accuracy. No one from the industry provided any experts who could be cross-examined in the quasi-judicial process of the NEB. Fortunately for landowners, the Harper government in 2015 passed Bill C-46 The Pipeline Safety Act. Enacted in June 2016, it provided the NEB jurisdiction over abandoned pipes and relieved landowners of the liability that should never have been theirs. Which doesn’t mean landowners should count on government to protect them for all eternity — what government or its regulators give one day can be taken away the next. Which is why CAEPLA always preaches vigilance.

How fast does corrosion happen? Recognizing regulators could not be relied on, CAEPLA chose to engage

“Landowners can be confident in the real-time research on the decommissioned Line 3.”

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This page: iStock/Maksim Safaniuk; facing page: image supplied by CAEPLA

The board set up two “streams of discussion” dealing with abandonment: “Pipeline Abandonment – Financial Issues” and “Pipeline Abandonment – Physical Issues.”

with Enbridge directly on the decommissioning of its legacy Line 3 as part of that pipe’s replacement project. The result was an agreement to have the engineering department at the University of Calgary, in cooperation with CAEPLA, conduct research exploring all aspects of decommissioning pipelines. CAEPLA hired engineering experts to review the research and to determine next steps. As one engineer quipped, “We don’t know what we don’t know,” adding nobody has ever done “real-time” research on the ground. While there have been many hypotheses and computer-generated models, nobody has ever actually come up with a plan to dig abandoned pipe out of the ground in various locations and examine it to figure out how fast corrosion happens in different soil types and conditions. Until now. CAEPLA contracted an independent engineering firm to review all the research we’ve done to date and provide input on Enbridge’s decommissioning monitoring plan. This will ensure landowners can be confident in the ongoing real-time research on the decommissioned Line 3. This third-party review will be filed with Enbridge’s decommissioning plan to the Canadian Energy Regulator and will include the historical account of the research and work done by CAEPLA and the landowner movement over the years. Meanwhile, the research will continue for decades to come. The agreement will be a living document for future generations of CAEPLA landowners and staff to rely on as they work with the company to create a permanent win-win solution for the challenges surrounding decommissioned and abandoned pipe. For such a lengthy endeavour, vigilance, as always, will be key to success.

The sun rises over the decommissioning site of Enbridge's Line 3 pipeline between Cromer and Gretna, Man.

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Touring a Worksite

his past summer, Enbridge began work on cleaning and decommissioning the segment of Line 3 pipe between Cromer and Gretna, Man. Dave Core and I visited the site and were given a short tour up to the area beyond where personal protective equipment (PPE) was required. Landowners, Keith and Teresa Lobel, on whose land the work was being conducted, joined us for the tour and explanation of the work being done. A roadway of mats was placed on the soil to protect it from compaction, as heavy trucks bringing in nitrogen and cleaning solutions, as well as heavy equipment travelled from the road to the cutting and cleaning site. Large water tanks were erected along with mobile office trailers for the engineers and shower stations as a safeguard against any adverse event and for biosecurity measures. A huge emphasis was put on safety and security of the workers, the landowners and the property. Prior to entering the land, each vehicle was required to be cleaned and disinfected as a biosecurity protocol. After our tour, Dave and I met with Keith and Teresa in their backyard, along with Dwaine Boon, a landowner on the CAEPLA/MPLA/SAPL Decommissioning Committee. Landon Lonsberry, an engineer on the project, also joined us and took the time to explain the process of the work being done on the Lobels’ property. Having experienced some negative effects to their property in the past, the Lobels were happy to see it being treated with newfound respect. When property rights are respected and landowners are treated as partners when they host energy infrastructure, pipeline projects can be effectively constructed and a good relationship maintained into the future. It is truly a win-win. 

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BY DANNY LEROY

Inflation is Here T Ottawa has “manufactured” over half a trillion dollars through COVID-19, so brush up on your economics

here are many great manufacturing industries in Canada, among them petroleum, automotive, aerospace, food and beverage and yes, inflation. The success of the first four are a source of wealth. They stem from the ability of Canadian producers to profitably supply consumers in

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Canada and elsewhere, particularly those in the United States. The goods and services these Canadians produce and sell enable them to acquire all the other goods and services they wish to consume. The latter is the increase in the quantity of fiat money and credit manufactured by the Bank of Canada. This manufacturing activity is counterproductive — it destroys wealth by setting in motion an exchange of noth-

ing for something and diverting real resources away from wealth generators toward the holders of the newly created money. The first recipients can spend it on real goods for themselves without prior production of goods or services for others. In every country and in every era in which it has occurred, inflation has been a large, metastasizing problem. And not just an economic problem, but also a political and moral one.

“Increased taxation limits the scope of entrepreneurs to reinvest back into their business, reducing the productivity of land.” The current situation in Canada is no exception. In 2020, M1+ (the narrowest measure of Canada’s money supply), increased by $328 billion. That quantity of newly created money exceeds the combined total revenues earned last year by the 15 largest manufacturing industries in Canada. In other words, the increase in the quantity of currency held outside of banks plus chequable deposits at chartered banks, trust and mortgage loan companies and credit unions exceeded the combined revenues from these industries: petroleum refining; SUV, light truck and automobile manufacturing; meat, beef and poultry processing; aircraft, engine and parts manufacturing; sawmills and wood production; copper, zinc and lead refining; dairy product production; plastic and resin manufacturing; aluminum manufacturing; iron and steel manufacturing; structural metal product manufacturing; bread production; margarine and cooking oil processing; animal feed production; and printing.

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Declining purchasing power M1+ has increased by an additional $171 billion during the first nine months of 2021. While the Bank of Canada can manufacture more money by buying government bonds, it can’t manufacture the goods for that new money to buy. With so much inflation in such a short time span, it is no wonder Canadians are witnessing a sharp decrease in the purchasing power of their money. Each individual dollar becomes less valuable as more dollars

are conjured into existence, resulting in a general and sustained rise in prices. An increase in the quantity of money is the cause and rising prices are the effect. Widespread misuse of the term “inflation” to refer to rising consumer prices deflects attention away from the real cause and its only real cure. What is seen, as the newly created money works its way through the economy, consumer prices — and often asset prices, such as home prices — tend to rise before wages rise. But perhaps what matters more is the damage inflation inflicts on the wealth generation process. Increases in money supply set in motion an exchange of nothing for something, which generates economic outcomes comparable to counterfeit money. The purchasing power of money is reduced, causing losses to all other holders because their money buys less. It raises the price level, discourages savings, distorts the allocation of capital, increases the cost of overhead and thus weakens the ability to generate wealth.

Inflation turns hard assets into a target for taxation For Austrian School economists Ludwig von Mises and Murray Rothbard, increasing the money supply is embezzlement. Even English economist John Maynard Keynes acknowledged the subject matter of inflation as embezzlement. “By a continuing process of inflation, governments can confiscate, secretly and unobserved, an important part of the wealth of their citizens. By this method they not only confiscate, but they confiscate arbitrarily;

and, while the process impoverishes many, it actually enriches some.” Inflation gets capitalized in the prices of hard assets. Hard assets with higher nominal values become targets for taxation, whether by pushing people into higher tax brackets or via proposed real estate equity wealth taxes through “unrealized” gains taxes. The greater the value of assets, the greater the tax would hit in most cases. Increased taxation limits the scope of entrepreneurs to reinvest the proceeds back into their business, reducing the productivity of land and other inputs. How do you stop inflation? Remove the cause. The solution is in the preamble to the act respecting the Bank of Canada. Its purpose is “To regulate credit and currency in the best interests of the economic life of the nation, to control and protect the external value of the national monetary unit and to mitigate by its influence fluctuations in the general level of production, trade, prices and employment, so far as may be possible within the scope of monetary action, and generally to promote the economic and financial welfare of Canada.” That purpose is realized to the extent that money creation is stopped. 

Danny Le Roy, PhD., is an economics professor at the University of Lethbridge where he is also coordinator of the Agricultural Studies program. Areas of research include commodity production, marketing and trade, government interventionism and Austrian economics. He blogs occasionally at mises.ca.

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BY CK REEDER

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Central Planning is “Planned Chaos” COVID-19 economic policies are sowing uncertainty for landowners

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he world is upside down right now. Our farm recently sold its 2006 Bobcat skidsteer for a little more than 100 per cent of its original cost. It was well maintained at 2,000 hours, and there’s nothing all that mysterious about people making a deal and everyone getting what they want. Still, the whole transaction seemed a bit surreal — selling for more than what we bought it for, 15 years later? I’ve never done that with farm equipment before. Maybe it’s not that strange, but the issue that kept coming up was how there wasn’t much supply out there. It was hard to get a good unit with all the attachments, so the prices are high and it’s a good time to sell. But it’s not just skidsteers; it’s other farm equipment and a lot of other

things. The local fast food joints can’t get the right bags for takeout. The car dealership lots are half empty. Manufacturers can’t get computer chips for their devices. Publishers can’t get books reprinted. A new window I ordered for the main floor of our house was three months late for the last possible estimated install date because of manufacturing delays.

Virus panic ripples through economy From the U.S., we hear of ships lined up at ports waiting to unload due to inadequate transportation to haul goods away. The price of goods, like gas, fertilizer and food also continue to rise and are getting higher still. As the virus panic wears on and the effect of the government’s response continues rippling through the

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“Government could introduce price controls and other regulations that could lead to de facto farm collectivization.”

Modern agriculture is capital-intensive Then, there’s the inflation. The Bank of Canada created hundreds of billions in new dollars to buy Ottawa’s massive COVID spending debt. Consumer prices are starting to show the effects of this as the diluted money supply lowers everyone’s purchasing power, especially at the grocery store. But it’s worse for some. For landowners, modern agriculture is capital-intensive. When the government

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inflates the money supply, money tends to flow into capital goods industries and push up their prices. This significantly increases costs for farmers, who will tend to pile up more debt. While prices of the commodities they’re selling might rise as well, most people outside the financial and political sectors don’t come out ahead, as their costs rise before their incomes. Landowners will be subject to inflationary pressures and rising debt. Even more extreme scenarios are possible. If food prices spiral completely out of control, the government could introduce price controls and other regulations that could lead to de facto farm collectivization. Such an escalation of economic controls would create turmoil, something that should be unthinkable. Yet after the last two years, it’s as if nothing is off the table when it comes to an

“emergency.” It feels like we’re in a very tenuous moment in history where things can quickly get much worse. What we’re seeing is what the economist Ludwig von Mises called “planned chaos.” Contrary to the fantasies of politicians and bureaucrats, central economic planning — in this case, to fight a virus — creates disorder and confusion instead of harmony and efficiency. The arrogance of the central planners is astonishing. They act as if they expect us to think they’re infallible. Yet all around us we can see their failures. Where is this going? I think we are just starting to see the fallout from this planned chaos. Like any terrible mistake, central planning often looks like it’s working — at first. Like any lie, it seems like you’ll get away with it early on. Reality always reasserts itself. The clown can only sit on the throne for so long. The upside-down world will be turned upright. Unfortunately, all intervention creates problems that the government responds to with more interventions. Despite already being the biggest political failure in a century, the government will keep doubling down on failed policies for a long time before order returns. 

Clayton Reeder is a mergers and acquisition advisor in Calgary. He works with many clients in the oil and gas sector and owns farmland in central Alberta. He loves oil and agriculture.

This page: iStock/gyro; facing page: istockphoto.com

economy, it’s hard to escape a strong intuition that a lot of things just aren’t working well. There seems to be a general atmosphere of dysfunction. We still live in one of the richest countries in the world, but right now, it’s starting to feel a little bit…‘Soviet,’ for lack of a better term. In March 2020, politicians and their bureaucratic accomplices believed they could simply shut down the economy. Overcome the virus with the sheer weight of government power, easily reboot everything and print a few hundred billion dollars to cover the bills. No problem, right? People talk about supply chain disruptions, but I don’t think we often appreciate what that means. The modern world’s global web of production is inconceivably complex. A disruption in one place can create chaos in distant economies. But normally, markets will respond to correct problems. We’re starting to see what happens when there are unprecedented disruptions across the entire globe. We have not seen interruptions in commerce and trade on this scale in many generations.

BY ELIZ ABETH BRUBAKER

The Best of Pipeline Observer

This story originally appeared in the Spring 2016 issue of Pipeline Observer

Badly Drawn and Ostensibly Arbitrary The dark history of expropriation in Canada

hen Niccolò Machiavelli advised his Prince to “abstain from taking the property of others,” he also gave this warning: “Pretexts for confiscation are never wanting, and he who begins to live by rapine will always find some reason for taking what is not his.” The Princes of today have strayed far from his

advice, with the predicted results. The slimmest of pretexts—a big box store, a cinema, a parking lot— now excuses many a taking of private property. Although expropriation—the taking of private property without the consent of the owner—is one of the most extreme uses of government power, Canadian governments have almost complete discretion

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serve private rather than public interests, and those that are unnecessary, have become commonplace. Expropriation is used as a convenient tool to reduce property acquisition costs for favoured industries. Legislation leaves citizens with little recourse against arbitrary, unfair, and unjustified expropriations. In the 17th century, the famous

Niccolò Machiavelli “Abstain from taking the property of others. Pretexts for confiscation are never wanting, and he who begins to live by rapine will always find some reason for taking what is not his.”

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English jurist Edward Coke wrote, “A man’s house is his castle,” adding (in Latin), “One’s home is the safest refuge to everyone.” Coke’s legal treatises are foundational documents of the common law, and this particular maxim continues to influence modern courts. Canadian Supreme Court Justice Claire L’Heureux-Dubé wrote in 1991, “Both the legislator and society as a whole recognise the truth of Edward Coke’s adage ... [P]roperty rights are considered fundamental in our democratic society.” Property rights long shielded homeowners not only from assaults by their fellow citizens but also from assaults by governments themselves. In a speech to the British House of Commons in 1763,

Top: photo illustration, Shutterstock/Thinkstock; bottom: © Alamy Stock Photo

over when they resort to it. Governments often justify this violation of their citizens’ common-law property rights as being necessary to carry out public purposes. But concepts as nebulous as “necessity” and “public purpose” provide no protection for landowners. Expropriations that

“Canada has the most arbitrary system of expropriation in the whole of the civilized world.” — Justice Thorson, president of the Exchequer Court in 1959

statesman William Pitt the Elder vividly illustrated the strengths of the property rights protection: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it— the storms may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!” But in fact, the forces of the Crown could expropriate the ruined tenement. While expropriation is not part of the common law, it has existed for as long as kings and parliaments have decreed

wrong.” An Ontario justice was even more pointed: “The Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine....The prohibition ‘thou shalt not steal’ has no legal force upon a sovereign body.” Nonetheless, no entity can expropriate without being explicitly empowered to do so by federal or provincial legislation. As one B.C. justice explained, “The right to seize and enter upon another’s land is a legislative concept. It runs against the general common law principle colloquially stated to be that ‘a man’s

John Morden “In Canada, few hurdles have been put in the way of expropriating authorities exercising their powers as they see fit.”

it. References to expropriation can be found in the Old Testament, in inscriptions from ancient Greece and in special statutes of the Roman Empire. The practice became commonplace in England with the expansion of railways in the mid-19th century, and Canada quickly adopted England’s laws. Federal and provincial parliaments can confer the power to expropriate on whomever they please. A 19th-century work on expropriation explained that, under the principle of parliamentary supremacy, “The only guide to what Parliament may do is what Parliament has done.” Or, as one law lord famously wrote, “The Legislature is supreme, and if it has enacted that a thing is lawful, such a thing cannot be a fault or an actionable

home is his castle.’ It is the deprivation of proprietary rights.” Justice L’Heureux-Dubé made the same point, citing a weighty tome on expropriation: “[T]he right to expropriate, being an unusual and exorbitant right, must be found in the express words of a statute for the right is never implied.” Unfortunately, in Canada, there has been no shortage of statutes conferring the power to expropriate. Nor have those statutes placed meaningful limits on what those powers can be used for. As lawyer John Morden (who would later become Associate Chief Justice of Ontario) explained, “In Canada, few hurdles have been put in the way of expropriating authorities exercising their powers as they see fit.” The first federal Expropriation Act

was passed in 1886. It embodied provisions that had been in the 1881 Government Railways Act and the 1867 Public Works Act. The Expropriation Act was revised over the years, but remained, in Morden’s words, “Badly drawn and ostensibly arbitrary.” In 1930, the Exchequer Court of Canada noted, “The powers granted to the Minister by the [Expropriation] Act seem to be unlimited,” and that the Minister’s judgment that private land was necessary for a public work was not open to review. The court made a similar finding in 1946: The mere filing of an expropriation plan “shall be deemed to indicate that in the Minister’s judgment the land is necessary for the purpose of a public work.... [H]is judgment is not open to review by the Court.” Indeed, the federal Expropriation Act came in for sharp criticism from the President of the Exchequer Court in 1959. Justice Thorson wrote, “I have frequently called attention to these provisions of the law and stated that Canada has the most arbitrary system of expropriation in the whole of the civilized world. I am not aware of any other country in the civilized world that exercises its right of eminent domain in the arbitrary manner that Canada does. And, unfortunately, the example set by Canada has infected several of the Canadian provinces in which a similar system of expropriation has been adopted.” 

Elizabeth Brubaker is executive director of Environment Probe and author of Expropriation in Canada: Discretion Masquerading as Law. Visit environmentprobe.org.

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B Y C H R I S C A LT O N

To Understand Economics, First Understand Private Property Early societies established private property rights, which individuals recognized reciprocally

n Man, Economy, and State, Murray Rothbard expounds the principles of economics by reconstructing an economy from the ground up. Following the practice of classical economists, he opens the book by imagining Robin-

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son Crusoe alone on an island. After identifying the operative laws that apply even to isolated individuals, Rothbard’s second chapter considers Crusoe on an island with one other person, introducing the concept of direct exchange, or the barter economy. In the third and fourth chapters, Rothbard considers the origins of money

and prices in an economy of indirect exchange. For a treatise on price theory, Rothbard recognizes the need to explain the origins of money prices, as Carl Menger and Ludwig von Mises did before him. In The Theory of Money and Credit, Mises built on Menger’s original explanation for the origin of

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“Yale political scientist James C. Scott, for example, notes that evidence for the domestication of plants precedes the formation of the earliest states. He argues states could not exist without a taxable base — grain, most commonly — and the domestication of plants and primitive commerce preceded state formation.”

money by formulating the regression theorem. When considering price changes back through time, Mises theorized that we must naturally come to points of origin and departure. Paper dollars today have no commodity foundation, but we can easily identify the point at which they were disconnected from specie (money in the form of coins instead of notes). Going further back, we may not be able to empirically identify the moment when specie, or any other commodity, was first used as a form of indirect exchange, but we can logically deduce such a moment must have occurred as primitive economies grew increasingly complex. In chapter 2 of Man, Economy, and State, before Rothbard summarizes

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Mises’ insights about the origins of money prices, he considers the origins of property rights. With a citation of John Locke, Rothbard asserts the principle of self-ownership and argues that the original appropriation of property comes from mixing labour with yet-unowned resources, such as clearing land for cultivation. Only after establishing a basis for property rights does Rothbard turn to considerations of exchange and money prices. Mises recognized that money prices depended on exchange, and he saw the need to explain the origins of monetary exchange. Rothbard took Mises’ idea a step further, recognizing that the prerequisite for market exchange is private property. Therefore, the origin of property norms is just as rele-

vant to economic analysis as the origins of money and monetary exchange. “Before we examine the exchange process,” Rothbard writes, “it must be considered that, in order for a person to exchange anything, he must first possess it, or own it.” Private property norms must emerge spontaneously Critical readers might object how we cannot take it for granted that property rights originate in the way that Rothbard describes. Governments, of course, can establish property rights, even if in violation of Lockean ethics, which adequately provide the conditions for market exchange. But such considerations would be inappropriate for Rothbard’s second chapter, as he is considering an unhampered market economy — one where governments play no role. For markets to exist sans government, private property norms must emerge spontaneously. To this last point, Rothbard never asserts that the Lockean rule of first appropriation is the proper means of establishing property rights (though he certainly believed so and made genuinely ethical arguments along those lines in other works, such as The Ethics of Liberty). In Man, Economy, and State, he simply considers the way property norms could logically emerge in an unhampered market. Man in a “free, unhampered market … may exchange any type of factor … for any type of factor,” Rothbard writes, but “it is clear that gifts and exchanges as a source of property must eventually be resolved into: self-ownership, appropriation of un-

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used nature-given factors, and production of capital and consumers’ goods, as the ultimate sources of acquiring property in a free economic system.” Rothbard’s argument follows a similar logical structure to Mises’ regression theorem, and even extends the continuum of exchange that Mises outlines. When constructing his theorem, Mises views the end point of his analysis as modern monetary prices, and his point of origin is the moment when a commodity is first used as a medium for indirect exchange. Rothbard has the same end point in mind, but realizing property rights are necessary for exchange and not a given for any society and, therefore, warrant explaining, he finds the origins of money prices in the original emergence of private property norms. Of course, people can provide alternative theories for the origin of private property, but the mere fact that Rothbard recognizes the need to explain property norms is a valuable contribution to economics that continues to go underappreciated. The most obvious objection people might offer to counter

Rothbard’s theory is no different than the alternative explanation to Mises’ and Menger’s theories for the origins of money: the state must construct property rights and introduce money, thus creating markets.

Economic exchange preceded the state As historians and anthropologists learn more about prehistory (the history of man prior to documentary evidence), the statist theories for both property rights and money crumble. Yale political scientist James C. Scott, for example, notes that evidence for the domestication of plants precedes the formation of the earliest states. He argues states could not exist without a taxable base (grain, most commonly), and the domestication of plants and primitive commerce preceded state formation. Although Scott doesn’t address property rights directly, he notes the formation of early states “required a host of products that originated in other ecological zones: timber, firewood, leather, obsidian, copper, tin,

“Rothbard finds the origins of money prices in the original emergence of private property norms.”

gold and silver, and honey,” which they obtained through long-distance trade of “pottery, cloth, grain, and artisanal products.” Recognizing how economic exchange preceded the state, both Rothbard and Mises raised valid considerations for the origins of money, exchange and property norms. In offering their theories, they were engaging in a common exercise among classical economists known as “conjectural history.” In the absence of empirical historical evidence, classical thinkers, such as Adam Smith and Turgot, speculated on the origins of observable, modern institutions based on assumptions about human nature. Although speculative, this method of history was not unscientific. The test of a good theory was that it explained more of what we can observe (both in terms of present society and extant evidence) and omitted less. Historians today who deal with areas of history and have scant documentary evidence, such as Africanists, still engage in conjectural history (even if they may not be aware of its roots in classical political economy). In this light, Rothbard’s explanation for the origins of property norms is not a value-laden prescription for how societies should establish private property rights. Instead, Rothbard is recognizing that early societies must have established some system of private property rights, which individuals recognized reciprocally with respect to each other, and he provides a theory for how this system likely emerged. It is not an uncontestable idea (no scientific theory is), but scholars dismissing it as a libertarian sidestep from proper economic analysis fail to understand the important economic contribution Rothbard was actually making.  Chris Calton is an economic historian.

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B Y D AV E C O R E

Property Rights and Pandemics From clubroot to COVID, what can Canadians learn from pipeline landowners?

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“

“It wasn’t just the pipeline that was buried — my rights were buried, too.”

crisis need not lead to a permanent expansion of government powers – as long as the public remains vigilant.” — Kenneth Roth, executive director of Humans Rights Watch Like many of you, I grew up on land with pipelines and later owned land that had pipelines buried in our fields. Those pipelines were out of sight, out of mind — until they weren’t. As long as those pipelines remained physically and philosophically out of sight, it was easy to believe I was a free man living in a country that respected property rights. Then, a company that owned the pipeline and the right-of-way across my land wanted to convert an oil pipeline to gas. The company’s land agent eventually convinced me and some of my neighbours to sign a document that not only gave the right to convert the pipe, but in the fine print also gave the company power of attorney over my land. It was only after I signed — a bit of buyer’s remorse, perhaps — that I came to truly understand it wasn’t just the pipeline that was buried — my rights were buried, too. A bad deal was the beginning of my enlightenment about how the energy business — a business in bed with government — worked.

Fast forward to today and consider what is happening around us. A declared public health emergency has made it clear how easily human nature can be taken advantage of as politicians, bureaucrats and other government embedded businesses work to take away our rights. The same way my own rights were taken away decades ago. The same way landowners’ rights continue to be taken — and, arguably, the same way all Canadians’ rights have been taken away since the COVID-19 panic began. Naivety, complacency, lack of knowledge, a misguided respect for “authority,” inalienable trust, herd mentality and fear of big government have all resulted in panic. Panic, followed by fear and a misguided respect for authority can combine to create the kind of herd mentality that causes groups of landowners or entire societies to surrender their rights. But working together with a group of more experienced pipeline landowner neighbours, we were able to leverage our strength in numbers. We pooled resources, hired experts and legal counsel and stood up to the pipeline company bullies and stopped that project. We then came to understand how the government created the National Energy Board (NEB) as a blanket to cover up our legal rights with adminis-

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trative law and regulation that limited our access to courts and our right to be heard. Later, a court of appeal decision — that stated landowners had no rights or remedies outside the NEB — confirmed our sentiments. The regulatory regime was nothing more than a racket relying on bureaucratic processes to snowplow landowners, facilitating a transfer of wealth from farmers to pipeline company shareholders. After following pipelines across the country speaking with landowners about the realities of the NEB being created simply for government and corporate rent control, I have spent the last two decades as their advocate working to promote respect for property rights and individual freedom. It was at this point I began crisscrossing the country to educate other pipeline landowners about our expe-

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rience — about not trusting the NEB and standing up for their property rights instead. Many said I was crazy. But over the course of almost three decades, most of the doubters have become some of CAEPLA’s staunchest supporters. I believe the lessons learned by the pipeline landowners movement can be shared today with all Canadians. Before, landowners often panicked when targeted with fear and misinformation tactics by land agents and government. But when landowners realized panic resulted in giving up our rights and making bad decisions under duress, we learned to work together. By working together we were able to defend all of our property rights. Canadians can do the same. Whatever your beliefs about COVID, it cannot be denied it was the

suspension of property rights that made destructive lockdowns and other restrictions possible. By uniting to defend our property rights, Canadians can take back our rights and responsibilities. Just as CAEPLA and our members take contagious crop diseases like clubroot seriously. We deal with these diseases responsibly through voluntary, private and contractual action. That is what our successful biosecurity protocols are all about. And no, I am not suggesting for a second that clubroot is as serious a threat as the coronavirus pandemic. What I am suggesting is that respect for property rights would have prevented the loss of countless lives and livelihoods. I am suggesting that a voluntary grassroots response would have done a better job protecting public health and avoiding the loss of lives and livelihoods. When a land agent comes to your door, CAEPLA always counsels landowners not to panic. Next, we advise landowners to trust but verify. Trust their instincts, but verify everything they are told – take nothing at face value. Ask questions and think critically. This approach would have served Canadians well during COVID – and it still can. Commonsense and vigilance always beats blind faith in government and media. When government and media declared the pandemic, we trusted but we did not verify. I’d like to think we are wiser more than two years later. We can get pipelines built while upholding property rights, and we can fight pandemics the same way. 

This page: iStock/Maridav; facing page: iStock/ wildpixel

“Whatever your beliefs about COVID, it cannot be denied it was the suspension of property rights that made destructive lockdowns and other restrictions possible.”

BY TOM ORIET

The Right to Free Speech is a Property Right

Ontario city attempts to censor expression on private land

homeowner in Port Colborne, Ont., is making the news for displaying a flag and door sticker that reads “F*ck Trudeau” with the asterisk substituting for the maple leaf from the national flag. We will refer to the collective display as the “flag.” Allegedly, residents complained to the city’s bylaw enforcement division and other city officers about the flag. The city claims the flag can be removed under the property standards bylaw. Section 3.11 of Bylaw 4299/135/02 states, “Exterior walls of a dwelling and their components shall be free of signs unauthorized by the Corporation of the City of Port Colborne, painted slogans, graffiti and similar defacements.”

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Although the proposed order concerning the flag is unavailable, Niagara This Week narrowed the basis for the flag’s removal to “unauthorized painted slogans, graffiti and similar defacements.’” Media outlets also asked whether this is a free speech question, suggesting the contents of the flag — and not the physical attributes — caused the complaints and bylaw citation. This article will briefly review the freedom of expression and investigate the claims with the limited facts available. For simplicity purposes, we will assume that a political yard sign, blanket, flag or equivalent are collectively “signage,” and the city would have issued the order regardless if the flag was converted into a large yard sign. We will also assume the municipality will not charge the landowner for lacking hyper-corrective grammar as a condition for keeping the sign — i.e., adding a comma after the F-word to directly address Trudeau (“F*ck, Trudeau”).

Legalizing vulgarity Profanity is practiced in Canada, including phrases that mimic the flag. One Canadian drove with a “F*** Harper” sign from his car. The court held that vulgar expression was protected political speech that did not undermine the purpose of protecting political expression in Canada under the charter s. 2(b). “[T]he four letter obscenity combines both content and form and is clearly an expression of his feelings toward the members of the

panel and the government’s position ... therefore, [it’s] an expression that falls within the protection of s. 2(b) of the charter.” Even Judge Rosborough mentioned the case would have been simpler if the sign was displayed on private land as opposed to a fluorescent sign in the rear window of a car, with the defendant intentionally cutting off other drivers to flaunt the sign. In another case, a sign stating “F*** China. F*** Mexico” in Niagara Parks was a lawfully protected expression because of the peaceful conduct of the display. The parks’ regulation prohibiting “abusive or insulting language” did not refer to vulgarity or controversial ideas, and instead, it referred to personally attacking park patrons. Further, the government cannot “restrict expression that is annoying, or even infuriating. People using public spaces are required to tolerate exposure to ideas with which they intensely disagree — ideas that may be inimical to their own deeply cherished commitments and choices.” In the end, the sign-owner’s trespass charges were dropped. Expletives have contributed to political discourse and in the House of Commons. Pierre Trudeau allegedly used the F-word against political opponents in the 1971 Fuddle Duddle scandal, and Justin Trudeau used another obscenity in 2011 against the federal environment minister. Overall, the F-word on a sign, without more, is not a fighting word provoking immediate violence, barring the speech from protection. The U.S. Constitutional Free-

“Canada revoked statutory freedom of speech and a quasi-constitutional right to property when it enacted the charter.”

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dom of Speech is commonly cited in Canadian freedom of expression cases post-1960. The 1960 Canadian Bill of Rights expressly protected freedom of speech and property, but the charter, being of greater legal authority and enacted later in time, provides a legal basis for the government to restrict free speech and has no express right to property. In effect, Canada revoked statutory freedom of speech and a quasi-constitutional right to property when it enacted the charter. The old case law does remain relevant. Before the charter’s ratification, Canadian courts made the freedom to express political ideas the foundation of modern freedom of expression. One American case involved an individual standing outside a municipal courthouse wearing a jacket stating “F*** the Draft” during the Vietnam War. He was charged solely based on the offensiveness of the words written on his jacket. The U.S. Supreme Court overturned the charge of disturbing the peace of any person or neighbour-

“The 1960 Canadian Bill of Rights expressly protected freedom of speech and property.”

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hood, in part, because prohibiting particular words initiates the “substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” The Canadian Supreme Court made a similar finding: the charter protects “not only ‘good’ and popular expression, but also unpopular or even offensive expression.” The City of Port Colborne may allege it holds the tools and intellect to discriminate between legitimate and illegitimate political signage. However, U.S. judges remain unconvinced of the better-funded state government’s competency at reviewing a sign’s legitimacy or to merely verify that the signage is grammatically correct. Given the legal protections afforded to the F-word, does the city, in the present case, find the four-letter word on the flag a defacement, or is the name change the defacement? You can

say “F*** Harper,” you can say “F*** the Draft,” but according to Port Colborne, you cannot say “F*** Trudeau.”

The purpose of free speech Canadian law rationalizes the freedom of expression as freely exchanging ideas and promoting an open, democratic debate as society pursues the truth. The Canadian Supreme Court classifies political speech as “the single most important and protected type of expression. It lies at the core of the guarantee of free expression.” The U.S. focuses on how special interest groups and the political majority suppress the political minority as a means for the standing majority-voted ruler to preserve its dominance — tyranny of the majority. Most political rulers would prefer political silence to prevent gridlock or competition that could stall their agenda. Although the flag’s word choice is uncouth, the government can hide po-

litical truth with a freedom of speech exception, monitoring the form or content of written criticism on private or public property. Former Justice of the Canadian Supreme Court John Cartwright expressed how every Canadian held a right to peacefully influence other Canadians to vote for a different candidate. Most political expression cases involve expression in a public place or something emanating from private land into public property. The reason is that quiet expression on private land has been an uncontroversial cultural norm in free societies, and the government normally does not limit (and consequently implicate) charter rights on private land. The flag case appears exceptional. Using the legal “reasonable location” test, “is the place ‘intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment[?]’” If you cannot talk about politics, exchange ideas or pursue happiness at your home, the freedom of expression is a meaningless parchment right. You cannot have legitimate freedom of speech if the most intimate, personal location is an uncertain venue to share your thoughts. The landowner is probably the most qualified person to ascertain the reasonable manner of expressing the speech. For example, the government librarians would know if someone’s whispering discussions affect library patrons, and a cemetery director can determine the reasonableness of picketing against the military at a dead soldier’s funeral. A landowner may pursue happiness in

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“Quiet expression on private land has been an uncontroversial cultural norm in free societies, and the government normally does not limit charter rights on private land.” her small corner of the world when she can enforce the protection of property and the political and religious beliefs expressed on it. Practically, if a landowner cannot peacefully express her thoughts on her private land or home, she cannot express those thoughts anywhere without someone else’s approval: private third-party or governmental consents. This bolsters James Madison’s construction of the U.S. Constitution as granting rights – such as, free speech – and property interest in those rights. Economist Murray Rothbard found the dual defense inseparable, as in your other rights cannot exist if the legal test for unconstitutional infringements does not treat these vague, incorporeal rights in terms of tangible property. Intellectual property is akin to personality that can be created, contracted and disseminated at the publisher’s or creator’s approval. If we secure speech as property, we tangibly safeguard creativity or criticism from incriminating its author for owning those words.

How do these principles apply to the flag? First, the flag looks new, so there is no need for maintenance or repair under the property standards bylaw. Second, is a political sign defacement? The flag is not painted, thus, it is not a “painted slogan.” The flag may not be graffiti since the landowner authorized the flag; meanwhile, graffiti

refers to writings or drawings that are not authorized by the landowner and are scratched or sprayed onto the wall. Defacement is synonymous with vandalism according to Barron’s Canadian Law Dictionary and Merriam-Webster’s Thesaurus. However, nobody seems to be complaining that the flag makes the landowner’s house a blight or unfit for habitation. The vulgarity was also not expressed in an erotic manner, making the speech “obscene” for American standards and limiting the freedom of speech protection. The plain language of bylaw 4299/135/02 concerns the physical attributes of the house’s exterior, and the flag does not visually match the disallowed kinds of displays on exterior walls. The municipality is probably not penalizing city residents for having other kinds of flags or signs on their property because a flag is normally hung outside someone’s home, unlike spray-paint graffiti. Since other flags can be raised in the city, the municipality may be considering the content instead of the physical characteristics of the flag, transforming the proposed order into a content-based punishment. If the maintenance, defacement and synonyms appear inapplicable, does the city consider the flag a sign that requires the city’s prior authorization, meaning political messages should be reviewed by the city before they are installed? The message on the flag is probably sparking the controversy, so why is the mention of “Trudeau” significant,

“Does the city consider the flag a sign that requires the city's prior authorization?”

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presuming the F-word remains legally protected? The city’s member of Parliament holds affiliation with the Liberal Party. He is the city’s former city councillor and mayor, which may contribute to the city’s or community’s disdain for the flag. With the majority of Niagara Centre riding residents being Liberal Party supporters, the voting majority would disapprove of the landowner’s contrarian opposing views. America’s freedom of speech presumes the citizenry is more trustworthy than the government. The government can conceal the truth and tailor its laws to safeguard its self-interest, while the politically weak citizen relies solely on the truth to bolster its assertion and persuade its neighbour. Censured criticism manufactures an aura showing no opposition to the current legislative majority enforcing parliamentary supremacy – a doctrine deeming Parliamentary acts as infallible, and it can never restrict its legislative powers by enacting quasi-constitutional constraints. Could an order to remove the flag silence the political minorities and maintain the current administration’s positive perception? Is “property maintenance” a pretext to serve a censorious purpose? The municipality could achieve a censorial purpose by regulating the physical attributes of the flag. However, the bylaw would confront stricter scrutiny if it impairs free speech in proportion to the objectives of the bylaw: i.e., rectifying vandalism. In Canada, political expression has content in addition to the form that disseminates that content. Thus, a message may be infringed when the government affects the method or

“A municipality limiting political expression on private property hampers local political participation and discourse.” form of the communication. As the U.S. illustrated, freedom of speech “means little if it permits government to ‘allo[w] a speaker in a public hall to express his views while denying him the use of an amplifying system.’” The flag or residential signage are cheap and convenient methods for personal expression. A sign on private land conveys the message, it is identifiable to the landowner or tenant who may have persuasive force in the community, the sign owner must maintain the easily removable sign and a sign does not destroy the house’s habitability. In the U.S., municipalities have attempted to devalue political lawn signs, however, the courts have only amplified their praise for house signs as a method of political expression. Converting the bylaw infraction into a prerequisite fee to raise political signage has been considered burdensome and arbitrary. A municipality limiting political expression on private property hampers local political participation and discourse.

Will political signage affect property values? A New Zealand commentator mentioned that political signage could affect property values, and the detriment to property values exceeds the

effect of the political message or the value of that free speech. Visual clutter and littering depreciate property values, but a house cannot reasonably be considered blight for having one political sign. The argument presupposes the government is a quasi-condominium association that should restrict political speech on private land to mitigate an unspecified loss in property values to the neighbourhood. The commentary assumes political signage holds no social worth. As an apolitical example, a New York Times contributor discussed how her family researched the neighbourhood politics when house-hunting in a new city, and the lawn signs facilitated as cost-free information. At this time, the conclusion that political signs significantly devalue property lacks substantiation and instead may help buyers, like the Times writer, make house purchase decisions. This case may become novel given the effects of political expression on private land and all the circumstances alluding to the flag’s contents, and not its form, as the grounds for the bylaw penalty. We must wait and see what the city’s bylaw division and landowner do, but if the news reporters are correct, the path forward may create uncertainty for free speech and property rights. 

Disclaimer: The author does not own or possess a copy of the flag discussed in this article, and he does not endorse the contents of flag. This article must only be used for educational and news purposes. The author will not be updating this article due to changes in the news story or the law. Tom Oriet, Esq, LLM, EA, has law degrees from Canada and the United States. Tom is a U.S. attorney and legal scholar specializing in asset protection, estate planning and agricultural law at the Law Offices of Casey D. Conklin. He may be contacted by email at tom@caseydconklin.com.

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B Y J O N AT H A N W O O D A N D B R I A N YA B L O N S K I

Property Rights Are Fundamental to a Free Society

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roperty rights are the foundation of a free society, enabling us to live according to our personal values and to pursue happiness in our own way, provided we don’t violate anyone else’s rights. That’s why the American Constitution and every state constitution explicitly

protects our rights to own, use and sell property. Yet government officials frequently seek to violate these rights for political expediency to benefit special interests or to settle scores. In Montana, conservative legislators have proposed a bill that would

“America has a long and rich tradition of landowners using their property rights to conserve natural wonders and resources.” Reserve (APR), which he would like to “legislate…out of existence.” But, since the constitution doesn’t allow him to, he’s attacking its property rights instead. If the bill passes, he may soon learn that the constitution doesn’t allow that either.

iStock/nanoqfu; cgbaldauf

Property rights to conserve natural wonders

bar nonprofit organizations from purchasing land from willing sellers at a fair price. If enacted, the law would be a brazen violation of the Montana Constitution, which recognizes “acquiring, possessing and protecting property” among the “inalienable

rights” off-limits to government interference. Why target nonprofits acquiring property? The bill’s sponsor recently penned an article in which he made his motivation clear. There is a particular organization, American Prairie

APR is pursuing an ambitious project to establish the largest nature reserve in the contiguous U.S. Unlike many environmental organizations seeking to use government power to coerce others, APR purchases property through voluntary exchange. So far, the organization has bought just over 100,000 acres of private land and leases more than 300,000 acres of public land, which it manages for bison and other native species. America has a long and rich tradition of landowners using their property rights to conserve natural wonders and resources. In 1773, Thomas Jefferson famously purchased Virginia’s Natural Bridge, which he described as the “most sublime of nature’s works,” to conserve it for posterity. Late in life and on the verge of bankruptcy, Jefferson sold his cherished library rather than the bridge, explaining he viewed it “in some degree as a public trust, and would on no consideration permit the bridge to be injured, defaced or masked from public view.” Throughout American history, private landowners — including many nongovernmental organizations — have been the nation’s stewards and conservationists.

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“Our society, political climate and, yes, environment would be better off if more differences were resolved through voluntary exchange and secure property rights.” Admittedly, many modern environmentalists have turned away from this tradition. Viewing property rights as an obstacle to be overcome rather than a value to be preserved, they seek to achieve their goals through lobbying, litigation and regulation at the expense of others.

Property rights exist to protect individual freedom But two wrongs don’t make a right. There is no reason for believers in individual liberty, property rights and free markets to abandon the defense of those values when a conservation group’s rights are at stake. That’s why the proposed legislation in Montana

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should concern you, regardless of where you live or what you think of APR’s plan. Property rights exist to preserve individual freedom, not for the benefit of the government. Yet many government officials reject this premise. The Montana bill’s sponsor, for instance, asserts that he can deny ranchers and other landowners the right to sell to conservation nonprofits because he believes it’s better for the economy and tax revenues. That sort of thinking is also what led the city of New London, Conn., to seize Susette Kelo and her neighbours’ homes under a plan to gift their property to Pfizer for an office complex. When the Supreme Court scandalous-

Jonathan Wood is a senior attorney with Pacific Legal Foundation, a nonprofit law firm that has won 10 Supreme Court cases defending property rights. Brian Yablonski is CEO of the Property and Environment Research Center, a Bozeman-based conservation and research institute dedicated to free market environmentalism.

iStock/ilbusca

Antique black and white photo of the Natural Bridge in Rockbridge County, Va.

ly upheld the city’s actions under the Takings Clause, which says government can only take private property for “public use,” Justice Sandra Day O’Connor responded in a pointed dissent that no one’s property is safe if governments need only think they could make better use of it. “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory.” Most states, including Montana, responded to the Kelo case by making clear that their constitutions and laws take property rights more seriously. Nor does it matter that APR is a nonprofit organization, rather than an individual property owner. We do not lose our constitutional rights just because we associate with others. You continue to enjoy religious liberty even if you open a for-profit business. You maintain your free-speech rights even if you speak through a nonprofit organization. Likewise, APR and its donors’ property rights are constitutionally protected. Our society, political climate and, yes, environment would be better off if more differences were resolved through voluntary exchange and secure property rights. An attack on conservationists’ rights threaten protections for all of us and to further politicize the environment. Fortunately, the law protects everyone’s rights, not just those favoured by politicians. 

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Articles inside

Free Speech is a Property Right

Inflation is Here

To Understand Economics, First Understand Private Property

Central Planning is “Planned Chaos”

We Don’t Know What We Don’t Know

Property Rights are Fundamental to Free Society

Property Rights and Pandemics

Bombshell Book: How to Blow Up a Pipeline