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Energy transition ushers in compensation claims for shifting land use plans

Author(s): Maureen Killoran, KC, Sander Duncanson, Sean Sutherland, Lisa Manners

Dec 11, 2023

 

Energy transition has led to an inevitable shift in government land use plans. This process will continue to evolve as all levels of government implement policies that restrict or prohibit certain types of resource development in favour of environmental protection, the exercise of Indigenous rights and other policy goals. These changes in direction will create conflicts between contemporary government land use priorities and existing property rights, including freehold and leasehold interests in resources. For proponents of resource extraction projects, such as mines and oil and gas developments, these shifting land use priorities can effectively sterilize resources and preclude development of a project. Years of planning and tens or hundreds of millions of dollars spent on project planning activities, including exploration programs, technical studies, and regulatory and permitting processes, may be put at risk. 

Where a government has not legally expropriated an asset but through government policy has effectively rendered property rights meaningless, a proponent or investor may have a cause of action for damages under the law of constructive taking...

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