This paper, by Adam Shedletzky, focuses on the legal provisions governing groundwater pollution due to fracking for shale gas. It examines the liability regimes (statutory and common-law) in Ontario, British Columbia, and Alberta. It concludes with recommendations for strengthening the regulatory regime to enhance frackers’ incentives to take care and to ensure that those who are adversely affected by fracking can be “made whole.” Continue reading
Category Archives: Reports, Studies, and Books on Property Rights
Shale Gas in Canada: An Overview
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In this overview of shale gas in Canada, Manish Oza addresses basic questions about the location and volume of the resource, the environmental concerns associated with its extraction, and the regulatory regimes governing the industry. The paper is intended not to provide the last word on these issues but to help inform the still-early stages of the public policy discussion across the country. Continue reading
Encouraging Pollution: The Perils of Liability Limits
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The authors of this research paper examine the rationales for and the effects of laws that cap liability for environmental disasters, such as oil spills and nuclear accidents. Such laws, they conclude, subsidize environmentally harmful activities and encourage risky behaviour. Continue reading
Smith v. Inco: Holding the nickel giant responsible for historical pollution
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Stuart Norris examines the July 2010 decision in Smith v. Inco, which found Inco liable for reduced property values resulting from nickel contamination in Port Colborne, Ontario.
Open Justice in the Common Law
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This paper explores the development and application of the common-law principle of open justice. For centuries, people used common-law courts to resolve disputes about pollution. The courts were open and accountable. Environmental disputes are now often resolved by regulatory bodies that are less transparent. For example, disputes concerning agricultural pollution are heard by government-appointed right-to-farm boards. Some boards do not release their decisions to the public, and some delete key information regarding the parties and their locations. This lack of transparency makes it difficult for people to make informed decisions about where to live, how to behave, and what to expect. When governments move decisions about the environment from courts to administrative bodies, it is essential that they adopt the principles of transparency and accountability that have long infused the common-law.
Property Rights: The Key to Environmental Protection
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A chapter from A Breath of Fresh Air: The State of Environmental Policy in Canada, a collection of essays edited by Nicholas Schneider exploring market-based environmental policy options for Canada. In this chapter, Elizabeth Brubaker discusses the roles that property rights play in protecting the environment: They provide powerful incentives for the preservation of natural resources and they are effective tools to resolve differences over resource use. Although Brubaker proposes a number of means to strengthen property rights, she advocates one principal reform: the enshrining of property rights in the Canadian Charter of Rights and Freedoms.
Reducing Risk By Creating Accountability
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Energy Probe Research Foundation’s submission to the Walkerton Inquiry’s Expert Meeting on Guiding Principles for Drinking Water Safety explores the critical role played by legal liability in risk management.
The Common Law and the Environment: The Canadian Experience
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A chapter from Who Owns the Environment?, a collection of essays edited by Peter Hill and Roger Meiners exploring the theory that environmental concerns are essentially property rights issues. In this chapter, Elizabeth Brubaker reviews the ancient roots of contemporary property rights and traces their evolution in Canada. She describes the ways in which concerned citizens have used their property rights to clean up and to prevent pollution. She then chronicles successive governments’ efforts to replace the common law with statutes and regulations governing the environment. Lastly, she recommends restoring strong property rights in order to return control over environmental degradation to those most directly affected by it.
The Common Law Approach to Pollution Prevention
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A transcript of a roundtable discussion, hosted by the Center for Private Conservation, between Hope Babcock, Elizabeth Brubaker, David Schoenbrod, and Bruce Yandle. Explores the promise and pitfalls of applying common law remedies to contemporary environmental concerns.
The Role of Property Rights in Protecting Water Quality
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This paper, published in Journal des Economistes et des Etudes Humaines, was prepared for Property Rights and Environment, an international conference organised by Centre d’Analyse Economique in June 1996. In it, Elizabeth Brubaker reviews the ways in which Canadians have used common-law property rights to protect water quality and chronicles governments’ tendencies to replace the common law with regulations that make it more difficult for individuals to protect waters.
