Elizabeth Brubaker
November 4, 1995

I should apologize. Here it is, 9:00 on a Saturday morning, and I intend to talk to you about sewage. It’s not a pleasant way to start the day. But it’s the best way I know of to address the relationship between water quality and property rights.

The relationship is completely unambiguous. Property rights empower people to clean up—or better yet, to prevent—water pollution. Without property rights, people are powerless. They have to rely on governments to protect their lakes and rivers. And believe me, governments do not do a good job.

Sewage pollution dramatically illustrates this. Just look around you. How often can you swim at Toronto’s beaches? Faecal contamination closes our beaches hundreds of times each year. And Toronto’s not alone. Swimming is forbidden in towns and cities all over the province.

The problem usually results from Combined Sewer Overflows. Combined sewers handle both storm water and sanitary sewage. When it rains, these sewers fill up. The local treatment plant wouldn’t be able to handle the volume flowing through them. And so they overflow into the nearest lake or river.

But sewage pollution isn’t just a problem during storms. There are 28 communities in Ontario that hardly clean their sewage even in good weather. They use what’s called primary treatment. They screen out the large solids. And they allow heavy matter to settle. Then they pump the stuff—over one million cubic metres of it each day—right into our lakes and rivers.

Primary effluent isn’t just unpleasant. It hosts an array of bacteria, viruses, and parasites that can infect humans. The micro-organisms that break down the organic matter in the effluent use up valuable oxygen in the water. The suspended solids in the effluent block light. They clog fishes’ gills. And as they settle, they can smother or poison bottom life.

Unfortunately, it’s not even just these 28 primary plants that are polluting our water. Last fall the provincial auditor announced that 24 percent of our sewage treatment plants—that’s 91 plants—fail to meet provincial water quality standards. And these are standards that, quite frankly, aren’t nearly tough enough in the first place. They deal only with organic matter. They don’t even touch toxic contaminants—the heavy metals, industrial chemicals and pesticides that are found in effluents.

Sewage pollution in Ontario isn’t new. And it isn’t secret. The government has been studying it for years. But it’s doing precious little to correct it.

Until about forty years ago, the government’s inaction wouldn’t have mattered. People living along lakes and rivers would have taken things into their own hands. They would have used their property rights to fight sewage pollution.

I want to spend a few minutes explaining the ways in which concerned citizens have used their property rights to protect water quality. Then I’ll talk about the government’s efforts to override these rights. And last, I’ll touch on what we can do to restore them.

The common law

Property rights come from the common law—the customary English law. England passed the common law down to her colonies, including Canada. Our governments have often overridden it with their own laws. But where they haven’t done so, the common law continues to apply.

Rather than being written by politicians, the common law evolved in the courts. Judges created and refined it, at first reflecting local customs, and later reflecting legal precedents.

Over the ages, a number of principles regarding property have emerged. Under the common law, people have very strong property rights: they have the right to both use and enjoy their property. But they also—and this is critical—have a responsibility not to interfere with their neighbours’ rights to use and enjoy their property. This principle is embodied in a maxim that has long governed court decisions: “use your own property so as not to harm another’s.”

Clearly, that principle has profound implications for all kinds of pollution. Sewage is no exception. Under the common law, the operators of sewage treatment plants may not, in using their own property, harm anyone else’s. If they do, the courts will stop them.

Sewage pollution usually violates people’s common law property rights in one of three ways. It may be a trespass, or a nuisance, or a violation of someone’s riparian rights. Let me describe each of these, starting with trespass.

Trespass

Under the common law, it’s a trespass to place anything upon someone else’s property. It doesn’t matter if the substance is toxic or perfectly harmless. And it doesn’t matter if there’s a lot of it or just a tiny bit. As one judge explained, “every invasion of private property, be it ever so minute, is a trespass.”

Landowners and tenants have often used trespass law to keep pollutants off their property. They’ve fought sawdust from a lumber mill, fluorides from an aluminum plant, and pesticide spray.

Trespass law has also been used to stop sewage pollution. In one turn-of-the-century case, a New York farmer complained that upstream sewers polluted his creek. He argued that the filth piling up on the creek’s bed and along its banks constituted a trespass. The court agreed. It gave the polluting town a year to build a new sewage system. But after that, it ruled, the town would no longer be allowed to pollute the creek. The court acknowledged that its decision would inconvenience the public. Regardless, it said, ongoing trespasses have to be restrained.

Not surprisingly, the town didn’t like that decision. It argued that its sewage was only one of many sources of pollution, including another town and several tanneries. Cleaning up its act wouldn’t clean up the creek. The court agreed that the town’s sewage constituted only a third of the pollution in the creek. But that made no difference. The farmer had the right to sue whomever he wanted. If he wanted to take on all polluters, fine. If he wanted to target just one, that was fine too. Higher courts agreed: the injunction would stand.

Nuisance

Trespass law prevents direct, tangible invasions. For indirect invasions, and for those that can’t be seen or touched, a branch of the common law called nuisance law often applies. A nuisance interferes with the use or enjoyment of private property. Like trespass, nuisance is not tolerated by the courts.

Nuisance law has been of tremendous help to those fighting pollution. People have used it to protect themselves from smoke, steam, and fumes. They’ve used it to challenge road salt and leaking oil tanks. Foul smells are often nuisances, as are noise and vibrations. Back in the 1920s, one judge went so far as to say, “Pollution is always unlawful and, in itself, constitutes a nuisance.”

A famous nuisance case of the nineteenth century dealt with sewage. Birmingham, England, built a large public sewer in 1851. The sewer dumped the town’s filth into the local river. The owner of a downstream estate complained that the sewage caused disease. It killed fish. Cattle couldn’t drink from the river. He couldn’t wash sheep in it.

For four years, the town promised him it would stop polluting. But it did nothing. Fed up, he turned to the courts.

At the trial, Birmingham didn’t deny that dumping sewage was highly offensive. It never admitted, however, that it could correct the problem. Instead, it argued that the court should allow the pollution for the public good. It warned of disaster if it wasn’t allowed to dump its sewage into the river. In its words, “The evil that must ensue if the Court should interfere would be incalculable…. Birmingham will be converted into one vast cesspool … The deluge of filth will cause a plague, which will not be confined to the 250,000 inhabitants of Birmingham, but will spread over the entire valley and become a national calamity. The increase of population, inseparable from the progress of a nation in industry and wealth, is attended of necessity by inconvenience to individuals … In such cases private interests must bend to those of the country at large.”

Well, none of this impressed the judge who heard the case. In fact, he dismissed Birmingham’s argument as an “extreme position … of remarkable novelty.” He was not, he explained, a public safety committee. His job was simply to interpret the law and to define who had what rights. In this case, the plaintiff had a clear right to enjoy his river—a right to water that cattle could drink and fish could swim in. Birmingham, in creating a nuisance, had violated that right. It wasn’t allowed to do that. In the judge’s words, “Public works … must be so executed as not to interfere with the private rights of individuals.”

The judge concluded that he must grant an injunction, regardless of its consequences. As he explained, “It is a matter of almost absolute indifference whether the decision will affect a population of 25,000 or a single individual.” And so he ordered Birmingham to discontinue the nuisance.

Riparian Rights

As I’ve just noted, both trespass and nuisance law have been used to stop sewage pollution. But most often, people wanting to protect water quality have used a branch of the common law called riparian law. Riparians are the people who own or occupy land beside lakes and rivers. Under the common law, they have the right to the natural flow of water beside or through their property. In the words of one judge, “every riparian proprietor is entitled to have the waters of the stream that washes his land come to it without obstruction, diversion, or corruption …”

Without obstruction, diversion, or corruption. That pretty well covers any threat to our lakes and rivers, doesn’t it? Hydro dams? They obstruct rivers. Massive water exports? Just another word for water diversions. Toxic pollution? That’s corruption. In fact, corruption covers just about any sensible changes to water quality, from discolouration to thermal pollution to the hardening of water.

During the 100 years stretching from the middle of the nineteenth century to the middle of this one, riparian rights played a crucial role in cleaning up lakes and rivers. Riparians fought coal mine discharges, pulp and paper mill wastes, storm-water runoff, and, yes, sewage. In fact, during that period, sewage was a frequent subject of riparian lawsuits.

One such lawsuit involved Cobourg, Ontario. In the early part of this century, Cobourg constructed a sewer that emptied into a local creek. The creek crossed the grounds of a hotel. The hotel’s owners objected that the new sewer discharged untreated human waste into the creek. They sued the town.

In its defence, Cobourg argued that the pollution from its sewer wasn’t serious. It served only nine houses, and it neither smelled nor was likely to produce disease. The judge who heard the case agreed that the creek water wasn’t very offensive. But that wasn’t the issue. Riparians, he explained, have “the right to the water in its natural condition.” The town, in contrast, had “no right to pollute this stream in the smallest degree.”

Cobourg argued that an injunction against sewage pollution would create a hardship for it. The judge responded with a passionate defence of individual rights over collective rights. Citing an earlier court decision, he explained, “I know of no duty of the Court which it is more important to observe and no power of the Court which it is more important to enforce than its power of keeping public bodies within their rights. The moment public bodies exceed their rights, they do so to the injury and oppression of private individuals, and those persons are entitled to be protected from injury arising from the operations of public bodies.”

And so the judge issued an injunction preventing Cobourg from discharging any sewage through its drain.

Then there was the 1928 Supreme Court case against Edmonton’s storm sewer. The court ordered Edmonton to stop polluting. One judge echoed the decision in the Birmingham case: “much as the result may cause inconvenience, the principle must be upheld that, unless Parliament otherwise decrees, ‘public works must be so executed as not to interfere with private rights of individuals.'”

There, unfortunately, is the rub. Unless Parliament otherwise decrees, public works must not interfere with the private rights of individuals. And if Parliament does otherwise decree? Then, well, riparians are out of luck. They can kiss their clean water goodbye.

And that is exactly what happened here in Ontario. In the 1950s, the provincial legislature decided that property rights were just a little too effective for its taste. And so it decreed that many public works could indeed interfere with the private rights of individuals. It’s a shameful bit of history, and it goes a long way to explaining why we are where we are today. So let me recount it in some detail:

The Erosion of Common Law Property Rights

The story starts back in 1947, with a dairy farmer near Woodstock, Ontario. One day he went down to the Thames River, which flowed through his farm. He found a cow mired in muck. The river was “slimy and stinking.” What was politely called “solid matter” flowed by. And mats of sludge accumulated in the river’s bends.

It wasn’t hard to track down the problem. Just upstream from the farm was the outlet of a sewage disposal plant. The town of Woodstock had constructed the plant 25 years earlier, for a population of 9,000. Since then, its population had almost doubled. And the plant wasn’t keeping up. At best, the town’s waste received inadequate treatment before being discharged. At worst, it simply overflowed into the river.

Over the next few years the river got worse and worse. The polluted water sickened the farmer’s cattle. They developed dysentery. Milk production decreased. Abortions increased. The farmer sold his cattle at a loss. He stopped renting out pasture land. He even stopped selling sod to landscape gardeners, since he had no cattle to keep it short.

In 1955, the farmer went to court. The judge who heard the case found that the sewage pollution constituted a nuisance which should be stopped. In his simple words, “where there is pollution of a watercourse, then an injunction ought to be granted.” The judge did, however, give Woodstock a chance to upgrade its plant: he stayed the injunction for 18 months.

Meanwhile, the Village of Richmond Hill was undergoing a similar trial, with a similar result. Like Woodstock, its sewage plant was too small for its population. It discharged its effluent into a branch of the Don River. The formerly clear stream became dark and dirty. Its fish and watercress disappeared. Its banks became littered with toilet paper and condoms. And the surrounding area began to smell of sewage.

Fed up with this mess, a woman who owned land along the Don filed a lawsuit, claiming that Richmond Hill had violated her riparian rights. The judge who heard the case agreed that a riparian has the right to the natural flow of a stream, “without sensible alteration in its character or quality.”

The judge acknowledged that his decision might be expensive for Richmond Hill, and for other communities that had similar sewage systems. But he insisted that he could not “permit the doctrine of utilitarianism to be used as a make-weight in the scales of justice.” He went on, “be it ever remembered that no one is above the law. Neither those who govern our affairs, their appointed advisers, nor those retained to build great works for society’s benefit, may act so as to abrogate the slightest right of the individual, save within the law.”

Like the judge who heard the Woodstock case, he then ordered an injunction—this one to take effect after one year.

Well, Ontario’s legislators freaked out. They worried that the Woodstock and Richmond Hill cases could set a terrible precedent. Lots of municipalities used their rivers as sewers. What if sewage pollution victims started suing them all? It was a real possibility. People were beginning to realize that they had property rights to clean water.

And so, in 1956, the government passed a law overriding those rights. Citing the public interest, it dissolved the injunctions against both Woodstock and Richmond Hill. And it went further: it deemed any sewage project approved by the government to be operated by statutory authority. The Leader of the Opposition described what this meant: the government could now allow municipalities to pollute Ontario’s rivers. He explained, “once The Department of Health gives approval, each one of these streams—in effect—can have sewage dumped into it.”

The Attorney-General said the same thing in a very different way. In his words, “This means that the courts would not have power to grant an injunction to stop the operation of a sewage disposal plant to the inconvenience and detriment of all the inhabitants of the municipality.” Courts, in short, could not order sewage plants to stop polluting if such an order would inconvenience their operators.

So much for riparian rights. So much for citizens being able to fight for clean water. From 1956 on, decisions about sewage pollution have been made not by affected individuals but by the provincial government. And what has the government done with its new powers? Well, that brings me back to the beginning of my talk. Our lakes and rivers are a mess.

The government permits sewage pollution that no downstream riparian would tolerate. It’s hardly surprising. After all, it operates many of the offending plants. And it often finances improvements to plants it doesn’t operate. In other words, it has strong economic incentives to permit sewage pollution.

The government also has political incentives to permit pollution. It values growth and job creation—at all costs. It’s loath to take on industries that dump toxic metals and chemicals into our sewers. The political costs are too high. And so it does the expedient thing. It transfers the costs of sewage pollution to its victims. If the effects—no matter how bad—are concentrated on a few riparians, the political costs are low. Nor need political costs rise if the effects are dispersed over many. People may love to swim, but swimming rarely makes or breaks a provincial election.

Riparians also respond to incentives. In this, they’re no different from governments. But their interests—economic and other—usually lie in clean water. Clean water increases riparians’ property values. It improves their quality of life. Riparians will fight for clean water if they have the tools to do so. And there are no better tools than property rights.

Strengthening Property Rights

So, how can we strengthen people’s property rights? How can we restore the pollution- fighting powers that citizens enjoy under the common law? A week ago I would have talked about provincial solutions—about the need for laws and regulations that don’t legalize trespasses, nuisances or violations of riparian rights.

The referendum has changed my focus. The referendum has made it possible to talk, once again, about constitutional change. And constitutional change offers property rights advocates a tremendous opportunity.

Constitutional change won’t necessarily include property rights. It might stop at minor decentralization—the devolution of some powers from the federal government to provincial governments. But it offers the possibility of much more. It offers the possibility of real decentralization—the devolution of powers from government to the people themselves. That’s what property rights are—they’re the ultimate decentralizers.

People and parties of all stripes are now promoting decentralization for many of the same reasons that I promote property rights. They understand that a remote government can’t always represent a local population: it doesn’t understand local priorities, and it doesn’t share local values.

That’s one of the reasons that governments don’t make good decisions about the environment. How can the provincial government know about the many uses of a particular river? How can it estimate the value of those uses to local riparians? Without that information, how can it foresee the consequences of permitting sewage pollution? And who is it to decide if the costs are acceptable?

Under a strong property rights regime, decisions about the environment are made not by remote governments but by those most directly affected. It’s the victims that decide whether or not to permit pollution. They know what it’s costing them. They can negotiate effective mitigation measures. And they can extract compensation for any damages suffered.

Armed with strong property rights, the victims of sewage pollution will start to clean up the waters flowing by their land. The operators of sewage treatment plants will once again be constrained by that old maxim, “use your own property so as not to harm another’s.” Some operators will reduce the load on their plants—they’ll charge sewer use fees reflecting both the volume and the quality of wastewater. Some will forbid polluters to dump into the sewers any toxins that can’t later be removed. And some will have to upgrade obsolete systems. Upgrades will be costly. But the polluters—rather than the victims—will pay.

Property rights aren’t a panacea. Even if we enshrine them in the constitution, governments will still be able to override them. They’ll still be able to permit pollution in the so-called “public interest.” But the hurdles of doing so will be higher than they are now. The economic costs will be higher if governments have to compensate people for expropriation. And the political costs will be higher if governments have to acknowledge that their actions violate a constitutional right.

In the last half hour, I’ve described the ways that people have used their property rights to protect the waters flowing past their land. And I’ve described the government’s use of its power to override these rights, to the detriment of the environment. The lesson seems clear: you can’t trust governments to protect the environment. You must trust the people.

Taking power away from governments and putting it back into the hands of citizens is the surest way to save our lakes and rivers. We now have a terrific opportunity to do just that. I hope we can seize that opportunity. I hope we can put property rights—those time-honoured solutions to pollution—into the constitution. For I believe that that’s the only way to ensure that our lakes and rivers once again flow without obstruction, diversion, or corruption.