20 corporations with ties to Irvings own more than 12,000 acres on P.E.I.
Province has a unique law to limit land ownership, but how that’s enforced is murky
Four years ago, the P.E.I. government said it had ordered a corporation owned by a member of the Irving family, Red Fox Acres, to get rid of some of its land because of a contravention of P.E.I.'s Lands Protection Act.
It was only the second time the province had ordered a divestiture of land under the act, which came into effect in 1982. The first time, it was also the Irving family that was ordered to give up land.
Two years ago, the government said the Irvings were now in compliance with the act, even though land title records show the same corporation still owns the land in question today.
No information was shared with the public to explain what changed, or just how the Irving family had come into compliance with the act. In the legislature, the Green Party suggested the company had leased the land to another Irving-controlled corporation.
And this is largely how enforcement of this unique piece of legislation has gone, over the 42 years since the act was enacted: with no way for the public to scrutinize how corporations, the provincial regulator, or even the provincial cabinet is following the law.
"Governments… both Liberal and Conservative, have turned a blind eye to the Lands Protection Act. They haven't enforced it," said James Rodd, a former leader of the Island New Democratic Party and a founding member of the Coalition for the Protection of P.E.I. Land. That's a grassroots organization that sprang up around what has become a contentious issue in the province.
In October 2020, CBC News filed a freedom of information request with then-minister of land Bloyce Thompson's department for a copy of the investigative report that Thompson had ordered and received from the Island Regulatory and Appeals Commission into the Brendel Farms land acquisition.
Even though the privacy commissioner ruled in January 2021 that the report could be released, it still hasn't been.
In the meantime, Rebecca Irving and Red Fox Acres had filed two court applications for a judicial review in November 2020, asking the P.E.I. court system to "nullify" the minister's decision to order the land divested.
That judicial review has never gone forward. While it's still listed as an active file in court records, a spokesperson for the Department of Justice told CBC News in September: "The province does consider this matter closed as the parties achieved compliance with the Lands Protection Act prior to advancing to the official review."
Companies tied to Irvings own 12,600 acres
P.E.I. is the only province in Canada that places legal limits on how much land individuals or corporations can own.
CBC News used provincial land records to calculate how much land is owned by companies with ties to the Irving family in New Brunswick.
It totals more than 12,600 acres, representing just under one per cent of the province's total land area.
That amount is much higher than the limit for any single corporation under the Lands Protection Act of 3,000 acres — even taking into account exemptions for non-arable land or land leased out to someone else.
None of this is to say that any single Irving-controlled corporation violates the law.
The Lands Protection Act does have provisions to prevent multiple corporations under the same control from owning more than the amount of land allowed for a single corporation. But the public is not allowed to see how those provisions are applied, or whether cabinet chooses to overrule decisions made by the province's land regulator, the Island Regulatory and Appeals Commission.
LISTEN | Why do the Irvings own so much land on P.E.I.?
J.D. Irving says it is fully compliant
CBC News reached out to a number of corporations with ties to the Irving Group of Companies for this story, including Cavendish Farms, Irving Oil Ltd., J.D. Irving Ltd., Irving Shipbuilding Inc., Indian River Farms Ltd. and Master Packaging Inc.
Several corporations responded with similar messages, saying they are in compliance with applicable laws.
Records
for properties like this Irving-owned land in New Annan, shown here in a
screengrab, are searchable through Geolinc, the province's online
portal. (Prince Edward Island government/Geolinc)
"I've had a look at your email and wanted to clarify that J.D. Irving, Limited is managed, owned and controlled separately from many of the businesses you've listed," wrote Anne McInerney, the company's vice president of communications.
"I can tell you that where J.D. Irving, Limited is concerned, we are fully compliant with all relevant land ownership legislation."
McInerney didn't respond to a follow-up email asking which of the 20 corporations for which CBC News had calculated land holdings were managed under the J.D. Irving umbrella.
For part of its calculations, CBC News relied on Statistics Canada's inter-corporate ownership database, which lists 188 different corporations within the Irving family group of companies.
Act easy to circumvent: law prof
Concerns about the Irvings buying up P.E.I. land were one of the main factors that motivated the Progressive Conservative government of the day to enact the Lands Protection Act back in 1982, according to Margaret McCallum, a retired University of New Brunswick law professor who studied and wrote about the act.
'It
seems to me that it's more legislation that's intended to pacify,' says
retired University of New Brunswick law professor Margaret McCallum,
who studied and wrote about the Lands Protection Act. (Ken Linton/CBC)
But McCallum said the law has always been too easy to circumvent and too hard to enforce when it came to preventing the concentration of land in corporate hands.
"It has slowed down what might have been a much more rapid concentration of ownership," she acknowledged, but added: "You can hire a good lawyer and easily create entities that are distant enough from you that their land holdings won't be counted as your land holdings."
It seems to me ... the legislation was meant to respond to a public outcry... If it didn't really change anything, that was okay with the people who passed it, or the people who had to implement it.
— Margaret McCallum, retired professor
McCallum said she believes the goal of the law has been to give the appearance that governments have been taking steps to protect land, rather than actually protecting it.
"It seems to me that it's more legislation that's intended to pacify — that the legislation was meant to respond to a public outcry, to settle things down, but if it didn't really change anything, that was okay with the people who passed it, or the people who had to implement it," she said.
'Zero transparency': Green MLA
"We won't let the Irvings or Cavendish Farms take control of our lands," said Jim Lee, the Progressive Conservative premier in power when the Lands Protection Act was enacted in 1982.
"There is no way that we will tolerate the Irving company acquiring any additional land in Prince Edward Island," Lee's Liberal successor, Joe Ghiz, said in 1990.
In April 1990, people protested land ownership regulations outside Province House, shown here in this file photo. (CBC)
CBC News asked for an interview with P.E.I.'s current minister of housing, land and communities, Steven Myers, but the minister was not made available.
The province directed CBC News to IRAC, which also declined a request for an on-the-record interview.
Application required
The Lands Protection Act requires corporations to submit an application if they want to own more than five acres of land or 165 feet of shore frontage, with cabinet having the final say on whether the transaction will be allowed.
There are provisions in the act to prevent multiple corporations under the same control from stacking land limits, but historically those provisions have been difficult to interpret and enforce.
The law relies on the concept of "beneficial ownership" of a corporation, stipulating that a person or corporation with indirect control or influence over a given corporation is deemed to be the one in control of it.
But Prince Edward Islanders aren't able to see how IRAC interprets the act, or the advice or recommendations the commission provides to cabinet, or whether cabinet members actually follow IRAC's advice when making a decision.
"There is zero transparency," said Green MLA Matt MacFarlane.
Green
Party MLA Matt MacFarlane intends to table an amendment to the
province's Freedom of Information and Protection of Privacy Act this
fall which, if passed, would open up IRAC's advice to cabinet to freedom
of information requests. (Wayne Thibodeau/CBC)
MacFarlane, a lawyer who said he's guided many clients through the land application process, said the commission "does all the hard work and the heavy lifting" in determining whether a certain purchase should be allowed.
But from that point on, "we don't know if IRAC's recommendation is accepted or followed, or if cabinet makes a decision based on whatever it wants to see," he said.
MacFarlane intends to table an amendment to the province's Freedom of Information and Protection of Privacy Act this fall. If passed by the PC-majority legislature, it would open up IRAC's advice to cabinet to freedom of information requests.
The act also includes a requirement that individuals and corporations who are within 75 per cent of the land holdings limit submit annual reports on their holdings to IRAC.
In early 2020, CBC News filed a freedom of information request seeking copies of land holdings reports submitted by corporations for 2019. There were 17 such reports, but IRAC has thus far refused to provide copies to CBC News. The file is under review by the province's privacy commissioner.
"It's a real shame that those reports, as far as I know, just are filed with IRAC and then nothing happens, and the public doesn't get to see them," said McCallum.
Court battles and fines
There have been multiple court battles over the years between the Irvings and the P.E.I. government, along with orders from the province for the Irvings to divest land.
In 1999, the province calculated the Irvings were in control of 5,600 acres through a handful of corporations, and gave those corporations a timetable to reduce their holdings down to 3,000 acres.
Seven years later, IRAC launched an investigation to determine whether that actually happened, and ended up imposing $13,000 in fines against various Irving corporations, including the maximum fine under the Lands Protection Act at the time of $10,000 to Island Holdings Ltd. for leasing 1,649 acres of land without going through either IRAC or cabinet.
These are very successful companies with deep pockets… who can continue to buy land.
— Ian Petrie, agriculture journalist
Ian Petrie covered agriculture as a reporter with CBC News for 32 years, and still writes a weekly column for the publication Island Farmer.
He recalls that one of the goals of the government of Angus MacLean, the premier under whom the Lands Protection Act was developed, was to ensure land would stay available for Islanders who had an interest in taking up farming.
Nowadays, he said, the sharp rise in the price of farmland has put that out of reach for many who aren't already in the business.
Former
premier Angus MacLean, whose government brought in the Lands Protection
Act 42 years ago, wanted to make sure young people could continue to
get into agriculture. (CBC)
Petrie and McCallum both said a provincial farm land bank, something promised by the PCs under Dennis King but never followed through on, would help ensure farming could be a viable option for young people looking to get into the business.
Petrie also said that, with the Lands Protection Act now 42 years old, the province should consider stricter enforcement of ownership limits pertaining to multi-generational farm families who are using the "beneficial ownership" clause of the act.
He said other operations beyond the Irvings have been able to significantly increase their footprints through multiple corporations across multiple generations.
"These are very successful companies with deep pockets… who can continue to buy land," Petrie said.
Without stricter enforcement of land limits, he said, "the same problems that we're seeing back in '82, this slow loss of control by average Islanders, and the ability to own land — we lose that."
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