River pollution: A lawsuit runs through it

Philip Lee
Vancouver Sun
August 16, 2000

When Silverton resident Roger Lewis considers the next move in his struggle to preserve the creeks that flow near his home, “perhaps he should splash some of his clean water in a glass of Scotch whisky and consider this story.

About 150 years ago, the Bankier Distillery Company in Scotland was making a tasty single malt whisky using pristine, soft water drawn directly from a stream called Doup Burn. The whiskey was fine and the distillery profitable until the day the water went bad.

Upstream from the distillery, John Young and Company had started pumping water out of its coal mines into Doup Burn. The water was still fit to drink, but its chemical composition had changed causing it to become too hard for whiskey making.

Bankier Distillery went to court, arguing that its rights as a riparian landowner had been violated, for the company possessed property on the ripa or bank of the stream. In 1893, the British House of Lords upheld a lower court’s decision to stop the mine’s waste water from flowing into Doup Burn, despite the fact that the water was still fit to drink.

Lord Shand stated emphatically that it was not permissible for one man to use his property in such a way that it injured his neighbour. “The lower owner is entitled to have the water transmitted to him with its natural qualities unimpaired,” he said.

The recent British Columbia Supreme Court’s ruling against Lewis and other residents of the Hasty and Vevey Creek watersheds was followed by an outburst of sophistry that has only increased the confusion that surrounds property and water rights in Canada.

The Red Mountain Residents Association had asked the courts for a stay to prevent Slocan Forest Products from building a four-kilometre road into their watershed, fearing that the construction would irreparably harm the water in the creeks. Justice Mark McEwan ruled that the residents have no more right to water resources than industrial users. However, he made a point of noting that if the logging operation polluted the water, the residents had every right to return to the courts to seek redress.

The McEwan decision has been interpreted to suggest that Canadian private landowners have no legal right to clean water, which in fact is not the case at all.

The residents of the watershed lost this round in the courts because they were arguing for a stay against logging activity because it has the potential to pollute their creeks. It is difficult to make a case against potential pollution at the best of times, especially when properly constructed logging roads don’t necessarily destroy watersheds. In theory, government regulations and environmental reviews should protect the creeks, although a lack of confidence in public officials to prevent pollution is understandable.

If Slocan Forest Products does pollute the Hasty and Vevey Creek watersheds, then the residents of the valley who own waterfront land should immediately take their case back to the courts. Riparian landowners in Canada have every right, and a library full of legal precedents, to demand that water continue to flow past their lands in an unaltered state.

If the riparian landowners choose to protect their water by turning to the courts, they will be seeking a legal recourse that has been tried hundreds of times in British common law. Riparian rights developed in the British courts as owners of river front properties fought the onslaught of water pollution during the Industrial Revolution and the introduction of piped municipal sewage in the 19th century.

Since then, riparian property owners in England have often asked the courts to protect their waterways from pollution. The London-based Angler’s Co-operative Association, formed in the mid-1900s, has fought hundreds of court cases using common law precedents to stop water pollution. The Association found that government anti-pollution legislation seemed to be of no use in protecting rivers and lakes from contamination.

While riparian law has been used more rarely in Canada, when it has been invoked here it has proven to be an effective means of stopping water pollution.

A case in point: In 1912, members of the Nepisiguit Real Estate and Fishing Company owned property that bordered the Nepisiguit River, a fine salmon stream in northern New Brunswick. The Canadian Iron Corporation, mining upstream beside one of the Nepisiguit’s tributaries, polluted the river by allowing water to leak into the stream while it was washing and grinding ore.

When pollution spread downstream into the salmon pools on the main river, the fishing company went to court. The judge visited the river, saw the discoloured water and ruled against the mining company, stating that the riparian owner had “the right to the full flow of water in its natural state, without any diminution or pollution.” The judge gave the company four months to clean up its mess.

In a book on water law in Canada, retired Supreme Court justice Gerard La Forest outlines the common law rights of the riparian owner. “The law regarding pollution is clear,” La Forest writes. “If a landowner pollutes the water, he is liable for damages and he may be enjoined from doing so by injunction.” The riparian owner has the right to clean water, “the flow of water in its natural state — unpolluted.”

The riparian owner also has the right to water flowing in its natural course. Upstream landowners owners can’t remove water from the stream in such a way that it alters the flow to downstream properties.

“There is nothing to prevent a landowner from straightening, cleaning out or deepening the channel on his land,” La Forest writes. “Similarly, the diversion of the waters of a stream to a flume or mill-race to operate a mill is permissible. So too is irrigation.” But the water must return to the stream “substantially undiminished in quantity and quality.”

La Forest issues a special warning to governments, which like any other landowner have the right to use water, but no right to pollute it.

The riparian owner doesn’t need to suffer financial damages to obtain an injunction to stop pollution.

Canadian environmentalist Elizabeth Brubaker, who has written extensively about the use of private property rights to fight pollution, encourages landowners to take their cases to the Supreme Court of Canada if necessary.

“The more precisely property rights can be defined, and the greater the extent to which they are assigned to specific groups and individuals, the better the environment will fare,” Brubaker argues. “If given the proper tools, owners will protect their resources. It is long past time for responsibility for natural resources to be shifted away from governments and back to individuals and communities that have strong interests in their preservation.”

For his part, Roger Lewis says simply, “We should be entitled to clean water.”

He and his neighbours should take heart, for they are entitled to nothing less than that. In the meantime, he should study the law and ignore the rhetoric that has surrounded his recent setback in the courts.

The more often Canadian riparian owners assert their rights in the courts, the cleaner our water will be.

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