Legal incoherence and the extra‐constitutional law of regulatory takings

Abstract

PurposeThe purpose of this paper is to examine Canadian law governing “regulatory takings” – the state's interference in a landowner's use and enjoyment of his property as a consequence of regulation. It considers whether the way that the law has developed in this area poses a risk of “legal incoherence” – a contradiction in the law itself, either between two discrete areas of law (“external incoherence”) or within a single discrete area of law (“internal incoherence”).Design/methodology/approachThis paper draws upon and expands a conception of coherence articulated by past commentators and applies it to reported judgments comprising the Canadian law in this area.FindingsThe extra‐constitutional nature of restrictions on the state's power to take, and a lack of doctrinal rigour are shown to have allowed the risk of incoherence to materialize in Canada by creating a distorted body of law. The modest constraints which Canadian law imposes upon regulatory takings fail to cohere to rights conferred upon landowners under various treaties and declarations to which Canada has subscribed. The law is therefore incoherent in an external sense. Recent jurisprudence also reveals an internal incoherence as the law purports to recognize a distinction between an expropriation and a regulatory taking, whilst simultaneously requiring that a regulatory taking demonstrate a quality unique to an expropriation.Practical implicationsThis paper clarifies the distinctions between an expropriation and a regulatory taking, explains the Canadian law governing both, and illustrates the tenuous state in Canada of public authority liability for restricting private use and enjoyment of land.Originality/valueThe implications for domestic law of international obligations respecting regulatory takings are highlighted. This paper's reference point of coherence offers a novel standpoint for assessing the quality of judge‐made regulatory takings law.