The Globe and Mail: Report on Business
July 17, 1993
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SUMMERTIME, and the beach is polluted. Fish aren’t jumpin’, and no one can swim. If your daddy’s rich, maybe you’ve got a pool. If not, for most people along the shore of Lake Ontario around Toronto, and along the shores of many other lakes and rivers across Canada, the story is “No Swimming,” thanks to decades of using the waters as a sewer for industrial and human waste.
In Toronto, this is an annual ritual. Hot weather means baseball, switching on the air conditioning, and listening for announcements that beaches are closed because the concentration of human excrement in the water has again reached unsafe levels. Nobody pays much notice to these annual declarations of environmental failure, least of all the municipal and provincial politicians who are responsible for most of the pollution; they’re too busy dreaming up wasteful recycling schemes, slashing garbage collection frequency, and drafting fresh laws to give themselves more power over the environment.
There was a time, not too long ago, when such pollution would never have been tolerated, a time when property rights were enforced and before governments came along and abrogated those property rights. In the case of water, property rights are called riparian rights — the common law rights of people who live along the shores of a river or lake to continued and undisturbed use of clean water.
Riparian rights include the right to fish, extract water, swim, operate tourist facilities and even operate industry. These rights continue to exist to varying degrees in different regions of Canada, but the legal trend since the 1950s has been running against riparian property rights.
The decline in enforcement has several causes, although Elizabeth Brubaker, director of policy research at Environment Probe, believes the main cause is the growth of government laws that had the effect of expropriating or eliminating rights. Certainly that appears to be the case in Ontario. Ms. Brubaker, who is preparing a book on property rights and the environment, pinpoints 1956 legislation, including the first Ontario Water Resources Commission Act, as a turning point. The act “so completely superseded riparian rights,” she says, that there have been few riparian cases since.
Prior to 1956, the courts rigorously enforced riparian rights. Indeed, legislation limiting rights was enacted in direct response to case law supporting the rights of property owners.
In one such case, in 1955, the village of Richmond Hill north of Toronto was ordered to close its sewage disposal, plant after a Mrs. Stephens successfully filed a lawsuit claiming her riparian rights. Mrs. Stephens lived on a branch of the Don River, which had been a clear waterway that provided drinking water, fish and a place to swim. After Richmond Hill built a sewage plant in 1952, the water became polluted. The judge noted that by 1955, the stream had become dark and dirty, the fish had died, and the banks littered with toilet paper and condoms.
When he issued an injunction ordering Richmond Hill’s plant closed because it infringed on Mrs. Stephens’ riparian rights, the judge said neither governments nor their advisers “may act so as to abrogate the slightest right of the individual, save within the law.”
The government of the day wasn’t going to take this enforcement of property rights lying down. Within a year, it changed the laws, essentially to allow governments to pollute public rivers and lakes by way of expropriation. In 1956, when he introduced legislation specifically aimed at reversing the Richmond Hill situation, then premier Leslie Frost defended the government’s right to pollute. “With any province, such as this, growing as it is, it is impossible not to affect the conditions of people and of streams and watersheds. They must be affected.”
With that, the government of Ontario more or less wiped out riparian rights. The logical conclusion of all this, an early example of the imposition of collective rights at the expense of individual rights, is the current disaster. Ontario’s rivers and streams became sewers, and Lake Ontario a liquid landfill for sewage and industrial waste, and the water unusable.
Can we ever return to a system of enforceable property rights, including riparian rights? Certainly not without public support, and certainly not in the current hostile political atmosphere. No political party supports property rights. And, incredibly, most environmentalists believe the environment can be maintained by further erosion of property rights — and by giving governments even more control over the environment. Are we that crazy?