Friday, 4 January 2013

Asking Better Questions About Land

I know it was a typo, but it was ironic how the news that  Charlottetown lawyer Horace Carver will head up a review of PEI’s Lands Protection Act was presented in one newspaper:

“Charlottetown lawyer Horace Carver, who was involved in the drafting and passage of the Act more than 30 years ago, will not review the legislation to ensure it meets present-day standards.”   I’m sure  we mean  “now” not “not”?

Horace Carver in fact did more than help with the drafting and passage of the Lands Protection Act. He along with former Premier Angus MacLean were instrumental in keeping property rights out of the Canadian Constitution, which in turn gave the PEI government the ability to control who can own how much land.  Pierre Trudeau included property rights in the initial drafts of the Canadian Charter of  Rights and Freedoms, but PEI and Manitoba fought against this through the difficult repatriation negotiations in 1980 and 1981.  MacLean and Carver argued eloquently in Ottawa that land was PEI’s only resource and the government had to retain the ability to limit ownership.  The two followed  up with the creation of the Lands Protection Act  in 1982.  The opening is not a bad summary of the major economic, historic,  political, and environmental challenges that have faced the province for more than a century.

1.1 The purpose of this Act is to provide for the regulation of property
rights in Prince Edward Island, especially the amount of land that may be
held by a person or corporation. This Act has been enacted in the
recognition that Prince Edward Island faces singular challenges with
regard to property rights as a result of several circumstances, including
 (a) historical difficulties with absentee land owners, and the
consequent problems faced by the inhabitants of Prince Edward
Island in governing their own affairs, both public and private;
(b) the province’s small land area and comparatively high population
density, unique among the provinces of Canada; and
(c) the fragile nature of the province’s ecology, environment, and
lands and the resultant need for the exercise of prudent, balanced,
and steadfast stewardship to ensure the protection of the province’s
ecology, environment, and lands.

The act restricts individuals to 1000 acres, corporations 3000 acres.  There are other limits for shore-frontage, and non-resident purchases. While provinces like Quebec and British Columbia use zoning to protect some valuable farmland, PEI has resisted this approach despite recommendations from  a handful of royal commissions and studies starting in 1972, and as recent as 2010.   

Two years ago there were important amendments that allowed landowners to subtract environmentally sensitive land from aggregate holdings,  in other words wet land, or forested land would not be counted in land ownership limits. This was a recommendation that came from the Commission on Nitrates in Groundwater: 

If landowners can exclude environmentally sensitive land in these watersheds from their allowable land holding, a portion of the land in these watersheds could come out of agricultural production, reducing the impacts of agriculture on water quality and improving the potential for biodiversity.”

The commission makes its case in a very clear and logical way that I absolutely agree with:

As a society, we can hardly be seen to be protecting the ecology, environment and lands of the province if farmers who consider it necessary to increase the size of their operations are required to clear woodlands and drain wetlands in order to do so. In the Commission’s view, restricting the application of aggregate land holdings under the LPA to arable land only, where bona fide farmers are involved, would be one effective means of promoting the conservation of environmentally sensitive land.”

I think a similar argument could be made to increase the land limits, but under very specific conditions. I make this suggestion knowing that for a lot of people  the 1000/3000 limit has a moral as well as economic meaning. For many it’s seen as the only way to contain voracious corporations intent on owning the province,  and to keep greedy potato growers from ruining more land and watersheds.  The Federation of Agriculture and the PEI Potato Board have asked for the review, while the National Farmers Union is maintaining its longstanding opposition to any change in the law.

I think simply focusing on the raw numbers is a mistake, and not addressing the real problems. Erosion, nitrate concentrations are issues of land use not just ownership. One solution that’s on the books but not enforced is a mandatory three year rotation.   Why not?  Agriculture ministers continually argue that farmers have strong links between their financial commitments, and investments in equipment and warehouses,  and the acres of potatoes they grow.  I know this seems like a lame argument to many, but creditors and lenders take business plans seriously, and cutting production acreage isn’t easy when the line of credit at the bank is the only thing keeping a farm going. I think it’s possible to improve land use, and maintain farmers’ production levels.

Let the acreage limits go up 500 acres say, but then link it directly to enforcing a three year rotation. No more excuses that it can’t be done. Potato acreage might go up marginally, but a lot more land would be properly managed. It would also address another land-use mess,  the lack of responsibility for how a lot of leased land is managed. Make the three year rotation mandatory and fine the owner, absentee or not,  if it’s not followed.

We’ll hear a lot about the dangers of corporate land ownership over the next few months, and I think that’s poorly understood too.  The Irvings have been Darth Vadar when it comes to corporate land control, but most corporations (and I think the Irvings have come around to this) are more than happy to put the risk of farming back onto farm families. Yes growing some of their production needs  gives them some bargaining leverage, but they’d have to grow tens of thousands of acres to have any real clout. Controlling the contract that the farmer uses to negotiate with lenders, controlling the sale of fertilizer and chemicals, gives the Irvings a fair bit of control already.  The McCains, Simplot,  Lamb Weston don’t grow and for good reason, there’s just not enough money to be made doing it.

Back to Horace Carver. He has such a strong legacy on one side of an issue that’s defined PEI’s history and economy, I can’t believe that he would take the job of reviewing the Act if there was any possibility of big changes.  Many of the comments on news web pages paint him as a Charlottetown lawyer only willing to do the Liberal governments bidding. First of all he’s a hard-assed Conservative from way back, and I think he has too much pride in his accomplishments to be pushed around on this issue by anyone.  And I’m not convinced the Robert Ghiz government wants to change the Act either.

But if we’re going to have this conversation let’s make sure we ask the right questions, and get the right answers.

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