(Un)constructive expropriation law

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You know, courts have a habit, Mr. Speaker, of sometimes so interpreting things, that the intention of the Legislature is not carried out.

Mr. Thorpe, The Honourable Member for Kings North at second reading of the bill that would become the Expropriation Act, 1973.1Nova Scotia House of Assembly Debates and Proceedings, March 30, 1973, 1763

Next week, the Supreme Court is hearing a case concerning whether refusing to approve a development permit could constitute “expropriation” in Nova Scotia. The factums generally suggest the question is properly about the test for so-called “constructive expropriation” or “de facto expropriation”, inspired in part by a law review article from a certain Professor Russell Brown (as he then was). The Canadian law on constructive expropriation stems largely from Tener, a Supreme Court case from the 1980s.2R v Tener, [1985] 1 SCR 533 In this post, I explain the present case, then look back at how we got to the constructive expropriation law of today. To steal my own thunder, it seems that Tener, and constructive expropriation along with it, is inconsistent with the modern approach to statutory interpretation and so should be consigned to the dustbin. That’s a pretty formalist analysis, so skip to the end if you prefer legal analysis based on vibes (my vibe is that constructive expropriation is Bad).

Background

Annapolis Group (“Annapolis”), a land development company, alleged before the the NSSC that Halifax Regional Municipality (“Halifax”) “delayed and obstructed all of Annapolis’ attempts to develop [its] land”, thereby “depriv[ing] it of any use of its lands”, which it said amounted to constructive expropriation.3Halifax Regional Municipality v Annapolis Group Inc, 2021 NSCA 3 at para. 1 It also raised unjust enrichment, abuse of public office, and misfeasance in public office claims. Halifax sought partial summary judgment to defeat the de facto (constructive) expropriation claim. Justice Chipman of the NSSC dismissed Halifax’s motion, but his decision was reversed on appeal by the NSCA.

On appeal to the Supreme Court, the only question continues to be whether summary judgment ought to be granted on the constructive expropriation claim.

Expropriation in Nova Scotia

The alleged legal basis for the claim is found in s 24 of Nova Scotia’s Expropriation Act. It reads:

24 Where land is expropriated, the statutory authority shall pay the owner compensation as is determined in accordance with this Act.

Canadian courts normally interpret statutes by reviewing their text, context, and purpose, with the object of ensuring that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”4Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at paras 21-224.

The most thorough textual and contextual exposition of the meaning of s 26 done thus far came in Justice Cromwell’s (then of the Court of Appeal) opinion in Mariner Real Estate5Mariner Real Estate Ltd v Nova Scotia (Attorney General) (1999), 178 NSR (2d) 294 (CA), 1999 CanLII 7241. He wrote:

Section 3(1) of the Expropriation Act defines expropriate as “… the taking of land without consent of the owner by an expropriating authority in the exercise of its statutory powers…”.  There is no issue here that the owners did not consent or that the designation was lawful.  The question is whether “land” was “taken” “by” an expropriating authority.

(para 10; emphasis in original)

As he further explained,

The Expropriation Act does not define land exhaustively, but states that land includes “..any estate, term, easement, right or interest in, to, over or affecting land” : section 3(1)(i).

(para 59; emphasis in original)

For Cromwell JA, this statement implied that the legislature sought to adopt a “broad, non-technical approach” to the definition of land.6at para 59 The legislation creates a line “between the sorts of interference with the ownership of land that are compensable under the Act and those that are not”.7at para 62 In his view, land is a form of property, and like all property, “owning” land means having a “bundle of rights”, but the rights, individually are not themselves property. Removing some parts of the bundle does not make the bundle disappear.8at para 64, relying on Belfast Corp. v. O.D. Cars Ltd., [1959] UKHL J1214-1 per Viscount Simonds. This appears to be a variant of what has been variously called Sorites’ Problem, Wang’s Paradox, or the Paradox of the Heap: Derek Parfit, Reasons and Persons (Repr, Clarendon 1986) 78. All relate to the situation where an individual contribution to a collective (e.g., catching a fish off the coast of Newfoundland) is de minimis and therefore (morally) unrecognizable as a wrong, but the collective result of many such de minimis actions is the creation of an indubitable harm (e.g., the collapse of the cod fisheries). Applied to land, the suggestion would be that if property is a bundle of “rights” (such as, in Hohfeldian terms, the privilege of use, the right to exclude, the power to convey), minor infringements on those rights may not amount to a taking of property, but as it becomes more serious the property as a collective is indeed taken. Most clearly, mere losses of economic value do not, in themselves, constitute a loss of property.9Mariner at paras 67-719 The loss of value may provide the measure of compensation, but is not the trigger for compensation.

Instead, Cromwell JA found only the extinguishment of “virtually all incidents of ownership (having regard to reasonable uses of the land in question)” could ground the loss aspect of expropriation. Even then, however, there was a second aspect to expropriation: the gain by the Crown.

For the gain aspect of expropriation, Cromwell JA had a relatively simple answer: it would only be triggered when the property lost by the landowner was, “in effect”, gained by the Crown.10See para 104 Which events have such an “effect”, however, was left undertheorized. The examples Cromwell JA refers to from prior Supreme Court cases are at best unclear that there in fact had been a gain (of the allegedly lost interest) by the Crown.

An explanation for the weakness of this part of the reasons comes because Cromwell JA was forced, by his role as an appellate court judge, to respect prior Supreme Court precedent. His reasons do an admirable job of stickhandling through the traffic cones that the Supreme Court had previously set up, but it’s hard not to notice the fancy footwork.

The Supreme Court looked on his work with approval. In Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5 [CPR], McLachlin CJ adopted Cromwell JA’s framework from Mariner Real Estate.11CPR at para. 34

Indirectly, however, CPR spawned the present appeal in Annapolis Group. In a law review article, a certain Professor Russell Brown took issue with CPR for following Cromwell JA’s approach and not taking its prior precedents seriously.12See Russell Brown, “The Constructive Taking at the Supreme Court of Canada: Once More, without Feeling” (2007) 40:1 UBC L Rev 315 Many of the factums before the Court refer to that article and it is hard not to see the article as influential in leave being sought and granted.

The Supreme Court, of course, is not as bound by its prior decisions as are appellate courts. It can clear the traffic cones, not just dodge around them. While Professor Brown thought the problem lay with CPR, I’m going to suggest that it actually arises from a case that predates Mariner Real Estate and that constrained Cromwell JA’s analysis there. In the next section, I’m going to address Tener, the Supreme Court case that established constructive expropriation of land, and explain why, if the Court is willing to set aside stare decisis (as it must to overrule CPR), it should instead overrule this part of its prior jurisprudence. Some readers may find the words “stare decisis” bubbling up inside them at such a suggestion.

Tener

This case is worth understanding from the beginning. I’m going to start with the background facts and law that came before the court, then consider the two judgments. Finally, I’ll suggest why Tener was wrongly decided and should be overruled.

Background

The facts

In 1934, the British Columbia Crown distributed the ownership of sixteen mineral claims, without giving up the surface rights or the fee in the land. David and Gertrude Tener eventually came to own these sixteen mineral claims.13Tener at para 1 These mineral claims included the rights to the mineral themselves, the right to take the minerals, and a right of way to the minerals, unless the right of way went through Crown land (in which case the right was subject to Ministerial approval).14Tener at para 1

The regulations alleged to expropriate the claims came into effect gradually. In 1939, the land was declared a park by BC’s cabinet, but the mineral claims were unaffected. In 1965, a new Parks Act made exploiting a park natural resource contingent on receiving a permit from the Minister. The Minister had broader discretion to grant a permit for “Class B” parks, but less for “Class A” parks. At the time, the park was a “Class A” park. In 1973, the park was made a Class A park, and the Minerals Act was amended to require anyone removing minerals from a park to get authorization from the Lieutenant-Governor in Council (LGiC), irrespective of any mineral claims. The Teners requested permits from the Parks Branch, but were turned down in 197815Tener at paras 2-3, 42-46 (or 1982, depending on when one counts the “decision” being made)16Tener at para 59.

The law

There were two plausible statutory bases for compensation, driven by two separate expropriation schemes.

The first plausible basis for finding the regulations to be an expropriation was s 11(c) of the Park Act.17Park Act, 1965 (B.C.), c. 31, as am. to 1978 (then RSBC 1979 c 309). It allowed the Minister (subject to Cabinet approval) to “expropriate land”. If the Minister did, then the scheme of the then-Ministry of Transporation and Highways Act [MTHA]18The Ministry of Transportation and Highways Act according to the RSBC 1979, and the Ministry of Highways and Public Works Act according to the RSBC 1960. would apply, modified as needed. The scheme of the MTHA provided for compensation to the “owner or occupier of the property” “for the land, stream, water, watercourse, timber, stones, gravel, sand, clay or other materials”, as well as, if those things are damaged, to the person damaged for that damage.19MTHA, s 25.

The second plausible statutory basis was through the Lands Clauses Act20R.S.B.C. 1960, c. 209, which was renamed the Expropriation Act in 197921R.S.B.C. 1979, c. 117. These two bases were exclusive: if the MTHA scheme applied, the Lands Clauses Act scheme did not22MTHA, s 29(3). The Lands Clauses Act and the Expropriation Act of 1979 were both inelegantly drafted. Remarkably, through more than 100 sections (per version) concerning how to ascertain the amount of compensation owed when compensation is owed, only one section directly provided that compensation is owed: s 105 of the Lands Clauses Act (s 103 of the Expropriation Act). It provides that tenants are “entitled to receive from the promoters compensation”. By contrast, ss 64 and 69, which were, at the time, believed to provide a right to compensation,23See Minister of Highways for British Columbia v British Pacific Properties Ltd, [1960] SCR 561, 568; Law Reform Commission of British Columbia, Report on Expropriation, 1972 CanLIIDocs 7 at 69 only set out the principles by which to measure the amount of compensation. Indeed, UK courts have held that the equivalent section in their Land Clauses Act (which inspired the BC Act) were to be seen as a “legislative exposition of what was
meant by compensation, and not as granting a new right”.24Blundell v R (1905) 1 KB 516, 523 (19 December 1904) Moreover, the statutes were not explicitly binding on the Crown!25Law Reform Commission of British Columbia, Report on Expropriation, 1972 CanLIIDocs 7 at 70; or just read the act: R.S.B.C. 1960, c. 209; R.S.B.C. 1979, c. 117

The judgments

Tener featured two judgments. The first, by Wilson J, attracted the support of only Dickson CJ; the second, by Estey J, was the majority (attracting the support of Beetz, McIntyre, Couinard, and Le Dain JJ).

Justice Wilson’s concurring opinion

In Justice Wilson’s view, the amount and type of compensation depended on if there was an expropriation or an injurious affection. In the former case, the Highways Act compensation scheme would apply; in the latter case, then the Lands Clauses Act compensation scheme would apply.26Tener at para 29

She preferred to see denial of the permit as an expropriation.27Tener at para 30 In her view, the mineral claims constituted a profit à prendre; they were not a right to the minerals in situ, but rather a right to take the minerals from the land.28Tener at para 31 In denying the Teners the right to enter the land and take the minerals, Wilson J said that the Crown “effectively removed the encumbrance from its land”.29Tener at para 37. By the doctrine of merger, removing that encumbrance makes the Teners’ loss the Crown’s gain.30Tener at para 37.

Justice Estey’s majority opinion

Justice Estey’s opinion was not dissimilar. In his view, “the denial of access to these lands occurred under the Park Act and amounts to a recovery by the Crown of a part of the right granted to the respondents in 1937. This acquisition by the Crown constitutes a taking from which compensation must flow.”31Tener at para 59. He held that it was therefore an expropriation.32Tener at para 60.

In his view, extinguishing an interest in land is included in “expropriation of land”.33Tener at para 53 If I understand his view correctly, he saw there as being a presumption of statutory interpretation that the loss of a royal subject would be compensated, and so it would be appropriate to read the words “expropriation” broadly, if those are the gateway to compensation.34Tener at para 51 The closest Estey J gets to explaining why this denial of access amounts to a recovery by the Crown is that the value of the park is increased by the denial of mineral rights35Tener at para 60.

Problems

Both opinions are frustratingly flawed.

Justice Wilson does not justify how “effectively” preventing the Teners from accessing the land should be seen to merge the element of fee simple back together. Nor does she justify why the Teners would have lost the right to the minerals themselves: on the terms of the mineral claim, the Teners would appear to continue to own the minerals where they exist, and the Crown would not itself have the right to extract minerals from the park.

Justice Estey’s majority opinion is no better. It relies on a misreading of a prior authorities and a statutory analysis that has none of the administrative deference, text, context, or purpose going for it.

The precedent: De Keyser’s Royal Hotel

The precedential matter comes when Estey J. relies on a sentence of Atkinson LJ’s opinion in De Keyser’s Royal Hotel36De Keyser’s Royal Hotel Ltd, Re [1920] UKHL 1 (10 May 1920). This sentence is the cornerstone of his broad statutory interpretation that gives no effect to the mechanics of expropriation set out in the Highways Act. Regrettably, Estey J ripped this sentence wholly out of context. In context, De Keyser’s Royal Hotel does not provide support for a broad reading of “expropriation” but rather supports narrow construction of a statute that might have been seen to abrogate a right to compensation given expropriation.

At issue in Der Keyser’s Royal Hotel was the War Office’s occupation of said hotel as lodgings for officers late in the First World War. The War Office’s authority to do stemmed from s 1(2) of the Defence of The Realm Consolidation Act, 1914 [DORCA] 375 Geo 5 and one of its accompanying regulations. DORCA granted the UK government the power to “issue regulations for securing the public safety and defence of the realm”, and for these regulations to “suspen[d] any restrictions on the acquisition or use of land, or the exercise of the power of making by-laws, or any other power under the Defence Acts, 1842 to 1875“. The DORCA regulations then allowed naval and military authorities to “take possession of any land” or “buildings” where necessary for those purposes. Among other things, the Defence Act, 1842 provides both a right to compensation when “Messuages, Buildings, Castles, Forts, Lines, or other Fortifications, Manors, Lands, Tenements, and Hereditaments” are taken and various procedural protections.38Section XV

Read in full, Der Keyser’s Royal Hotel says that DORCA made it possible to waive the procedural protections (which would have restricted the taking of land), but not the right to compensation. The right to compensation was a condition subsequent on taking the land, not a condition precedent. Lord Atkinson’s statement that “a statute is not to be construed so as to take away the property of a subject without compensation” is a way to harmoniously interpret the whole statutory scheme. Moreover, even if read in isolation, it can be satisfied in two ways: one is to say that property has not been taken away; the other is to interpret a statute to grant compensation. Der Keyser’s Royal Hotel provides almost no guidance on what events constitute taking away property — in that case, the occupation of the hotel was clearly taking property (and no procedures needed to be followed).

The legislative text and context

The statutory scheme at issue in Tener, read as whole, does not support the existence of constructive expropriation. Section 18 of the Park Act authorized expropriation only on the terms of the MTHA. The MTHA provided both procedural protections and substantive rights to landowners. Nothing in the Park Act suggested expropriation could occur without those protections (as was the case in Der Keyser Royal Hotel with DORCA). Denial of a permit is in an entirely different section of the Park Act and nothing in the statute implied that denying a permit would be considered expropriation. These were discrete powers. In order to get to its result in Tener, the Court would have had to, effectively, take the various sections of the Park Act, toss them in a Vitamix, and press “blend”. The modern rule of statutory interpretation is not supposed to be a smoothie recipe.

The legislative history

The legislative history also suggests that the BC legislature’s intent in setting up the permitting process under the Park Act not trigger compensation. The key event was the election of the BC NDP government in 1972. A budget speech by Robert Williams, the Minister of Lands, Forests and Water Resources, described his government’s approach to the park file.

The speech describes that the new government took issue with how parks had previously been managed and how liberally permits had been given out. Minister Williams suggests “mineral policies and resource policies” had previously been made “in the special clubs” (e.g. the Vancouver Club) of the province.39BC Hansard, Feb 22, 1973, 629 He lamented the 2.5M acres of parkland had been lost and declared that the new government would protect park land to begin “righting the wrongs” done by the previous administration.40p 632 One of these was for numerous park use permits to be granted by “former politicians” without the involvement of parks administration staff.41632633 The result of this permitting, according to Mr. Williams, was a cascade of further permits that led to the destruction of significant amounts of park land.42633 As he put it, “once the camel is in the tent, the whole area has been destroyed”. He therefore suggested a policy change in how the Park Act would be interpreted (to limit giving out a permit to situations it was in keeping with the overall aim of park conservation). He especially noted that this change of policy would affect the park at issue in Tener.

This change was not merely done through executive action: it was accomplished through legislative action. One such legislative initiative was the Park Act Amendment Act, which limited the powers of the LGiC to reduce the size of parks and made Wells Gray Park a Class A park. Another was the Mineral Amendment Act, which among other things, provided that “Notwithstanding any Act, agreement, free miner’s certificate, mineral claim, lease, or licence, no person shall explore for or develop minerals within the boundaries of any park created under or pursuant to any Provincial Act unless such exploration and development has been authorized by the Lieutenant-Governor in Council on the recommendation of the person, corporation, or government that is responsible for the park.”

More politically, and evocatively, the government of the time embraced the label of being “socialists”.43For example, at p. 637 of the debate mentioned above, Premier Barrett refers to another person being called a “socialist” as “most complimentary as far as I am concerned”.

The upshot of all this is that it is hard to say the intent of the legislature in deeming the park a Class A park was to provide compensation to the owners of the mineral claims when their permit was denied. In their view, permits had previously been wrongfully granted — from their perspective, one might think that undoing the prior government’s wrong was clawing back undue largesse, not imposing an undue burden on private owners. To be fair, it’s not a completely open-net goal: the NDP government also acknowledged that it could not undo all of what the Social Credit government had done, saying “we have to live with [some of these problems] because of the commitments that have been made.”44At 633

The adminsitrative law context

Tener is still more frustrating when considered in light of modern administrative law. In present day Canadian law, courts defer to administrative decision makers’ interpretation of their home statute. The Park Act was clearly the home statute of the Minister of Lands, Parks and Housing, and the Minister did not consider this activity to be expropriation. Under modern administrative law, the better approach would have been for the Teners to apply for mandamus to compel the Minister to expropriate their mineral claim, on the basis that not doing so would be unreasonable. Modern administrative law understands a much broader role for mandamus than older (or UK) administrative law.

Conclusions on Tener

In sum, Tener is deeply flawed on a modern view of statutory interpretation. The text, context, and purpose of the statute do not support the conclusions the Supreme Court reached. Tener appears to be an example of Canadian politically conservative judicial activism, wherein a socialist legislature’s objectives are undermined by a hostile reading of the statute. It is hard not to see Tener as courts implementing their preferred policy in spite of parliamentary sovereignty.

Shaking off Tener‘s fug

If the courts could shake off Tener‘s fug, their approach to the modern questions presented in Annapolis Group could be more in keeping with what they say is the proper approach to legal questions.

Were it not for Tener, the appropriate approach to considering whether an event merited compensation would be a matter of statutory interpretation. As the JCPC held in 1922, “[c]ompensation claims are statutory and depend on statutory provisions”.45R v Sisters of Charity of Rockingham, [1922] 3 WWR 33 (PC), 1922 CanLII 489 at 210-211 And in interpreting a statute, the courts could use the normal approach suggested in Rizzo Shoes: looking at text, context, and purpose.

The text of the Nova Scotia Expropriation Act suggests “expropriation” ought to be given a technical meaning. Section 11 provides that the trigger for vesting expropriated land in an expropriating agent is the deposit of “expropriating documents” at the office of the registrar of deeds. These documents must include a description and plan of the land, a description of the nature of the interest, a relevant approval, and a statement of the relevant statutory purpose. This deposit of documents also sets the date upon which the expropriated land is valued for the purposes of compensation.46Section 25 These rules give clarity to the expropriating authority about what actions will trigger a right to compensation. At the same time, property owner’s ultimate rights are protected from deliberate attempts to lower the compensation value by regulation in anticipation of expropriation.47Section 33(c)

It’s also, of course, necessary to look at the purpose of the statute. For this, let’s look at the Nova Scotia Hansard; one should not presume that one provincial legislature’s purpose in enacting legislation on a matter is the same as another’s.

The Nova Scotia Hansard, unfortunately, does not provide a lot of insight. Its modern Expropriation Act was rammed through the legislature with little debate.48First reading occurred on March 27, 1973; second reading on March 30, 1973; and third reading on April 6, 1973: see NS Hansard at 1619, 1754, and 1897

At second reading, the Act was explained to have three primary purposes: first, to systematize the procedure for expropriation; second, to increase the compensation payable upon expropriation beyond market value to actual costs suffered by the property owner; and third, to separate out the authority to expropriate from the authority to approve an expropriation.49See NS Hansard at 1754-1759

These procedural hurdles are important, not just to protect property-owners but also the public purse. The separation of expropriation and approval thereof allows a second body to decide whether something really ought to be expropriated. Constructive expropriation is contrary to this legislative scheme, in that it obviates the statutory procedures. It allows “expropriation” to occur when that is not intended by the expropriating authority and is not approved by the approving authority. It does so without a clear date of expropriation.

Justice Estey rejected these procedures having any importance in Tener. In my view, he was wrong to do so.

Vibe check

So far, so formalist. Let’s take a step back, squint a little, and look at the forest of constructive expropriation, not just the individual trees of statutory sections. What does constructive expropriation look like, really?

Constructive expropriation is a way that courts have imposed liability on the Crown for administrative actions affecting the value of private property. Sure, it’s tethered to the word “expropriation”, but it takes that word out of its context.

What’s deeply weird about constructive expropriation is that it’s imposing liability on the Crown for administrative action. Yes, administrative actions can create Crown liability, but generally only in the same way as a private person is liable. Just as a private person can perform a tort, break a contract, or get unjustly enriched, so too can the Crown.

But regulatory administrative actions aren’t like that: they’re not wrongs normal people can do, they’re wrongs the Crown alone can do. When private persons do things that merely affect the value or plausible uses of a land, such as close a factory (thereby making all the houses in town worthless), or open a better ice cream shop (thereby destroying another ice cream parlour’s business’), we don’t say “a wrong has occurred”, we say “that’s capitalism”.

Normally, in administrative law, there is no general right to recompense for wrongful administrative action. Paradis Honey,50Paradis Honey Ltd v Canada, 2015 FCA 89 see para 143. Stratas JA’s attempt to inject monetary relief for public authority liability in administrative action into Canadian law, has been summarily rejected.51Nelson (City) v Marchi, 2021 SCC 41 at paras 40-41 If there are times when administrative action causes harm that does not fit in the private law categories and where administrative law remedies of quashing or mandating orders do not suffice, then that harm is simply unremedied.

Well, that harm is unremedied, unless it’s to a property owner, and specifically a holder of an interest in land. Seen in this light, constructive expropriation is strikingly classist, in a very old fashioned sense (where land ownership is a marker of class status). Constructive expropriation provides exceptional protections for the land-holding class. It gives them monetary relief for harm to land, when harm to other interests remain uncompensated. For example, if the Immigration and Refugee Board wrongly deports someone, that person cannot get compensation for losing their job and having to uproot their entire life. Judicial review may let them overturn the decision, but it does not compensate the loss. When the value of land is destroyed by administrative action, the land-owner can elect either to seek an administrative law remedy or to seek compensation.

This reification of property is even more striking in comparison to the courts’ treatment of constitutional rights. In other countries, compensation for constructive expropriation may be justified on constitutional basis; not so in Canada. There is no constitutional property protection here. Remarkably, Charter damages appear to be more restricted than compensation for constructive expropriation: a prima facie right to Charter damages can be rebutted by showing the existence of an alternative remedy or by good governance concerns,52Vancouver (City) v Ward, 2010 SCC 27 at para 33. but a prima facie claim for constructive expropriation would not appear to be.

And there are alternative remedies, including for the harms alleged in Annapolis Group. As some of the intervening attorneys general have pointed out, administrative law remedies are available for the harms Annapolis Group alleges. Rather than seek constructive expropriation, it could seek judicial review of Halifax’s action. Moreover, as Wu v Vancouver (City), 2019 BCCA 23 observed (at para 40), “[m]andamus lies to compel an official to make a decision. It is a remedy for delay.” If Annapolis Group is frustrated by Halifax’s foot-dragging on making a decision, it can seek an administrative law remedy.

Conclusion

One of the oddities of this case is that a conservative judicial philosophy leads to opposite results from a conservative political philosophy. For the judge who is conservative judicially, the methodology of statutory interpretation requires taking legislative text, context, and purpose seriously. Taking those seriously suggests that the judicial invention of constructive expropriation was activism run amok. For the judge who is conservative politically, constructive expropriation is a great defence of free market values and the defence of individual liberty as property-owners from misfeasance by the state.

For the judge who is both politically and judicially conservative, there is a significant tension between a desire to keep appropriate boundaries on the spheres of judicial decision-making and legislative decision-making, and the desire to prevent government from making decisions they see as bad. The question for them is whether legislative supremacy gives the power to make choices the judges dislike or if judges will undermine legislation when they think it’s bad policy.