Property Rights in the Defence of Nature: Review in Journal of Environmental Planning and Mangement

J.D.C. Harte
Journal of Environmental Planning and Management
August 21, 1997

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This book celebrates the potential of the traditional common law of nuisance as a framework for protecting the environment. Ms. Brubaker unashamedly assumes that private property owners are the best guardians for the purity of rivers and the clarity of the atmosphere. She provides striking illustrations of how those with property rights may be driven by economic common sense to protect natural resources, if they are fully informed and if they are given the freedom to act.
The book is divided into four main sections. The first praises The Golden Age of Common Law Property Rights. Parts Two and Three look at the erosion of those rights and the failings of the common law. A grim picture is painted of governmental encouragement of development which is environmentally harmful, by direct government works, and by the enactment of defences to nuisance actions which free large developers in the private sector from the balancing restraint of the property rights of others. An important aspect of this malign influence of government which Brubaker singles out, and which is often overlooked, is the misuse of the tax system so that it not only fails to support conservation but can actively hamper it.
Brubaker charges the judiciary with sharing government’s blame for reducing the effectiveness of the common law of nuisance as a means of protecting the environment. However, in Part Four she reverts to her main theme of how nature may best be protected by restoring strong property rights. What emerges here are a number of new ways in which private property rights probably could be used more effectively than relying on state and local government agencies. A central idea is the creation of new forms of ‘alienable rights’ to deal with the long recognized ‘problem of the commons’. The system of land enclosure in England and Wales, between the 16th and 19th centuries, involved rights in village land long shared by all the villagers, in particular over large arable fields. These were divided up and permanently allocated to individuals who then introduced modern agricultural practices. Brubaker does not discuss that historic process but she highlights how property which has remained unappropriated and has become increasingly vulnerable could be appropriated in similar ways. Thus she applies this approach to fisheries, by suggesting extensive use of freely transferable quotas such as are already used in New Zealand.
More extensive use of private property rights to manage and protect scarce natural resources does not necessarily involve concentration of control in a few powerful hands. The legal bodies holding land may take a variety of forms and can involve extensive democratic participation. Much can be done by conservation bodies acquiring land so as to protect it in the wider public interest or for the sake of nature conservation itself. Brubaker does not expand on this aspect of her thesis but she does provide examples of native groups occupying traditional tribal lands and of modern anglers’ co-operatives. The English reader may confirm the value of her analysis with home grown examples, such as the acquisition of large tracts of land by the RSPB or of small strategic sanctuaries by the League against Cruel Sports, illustrated by League against Cruel Sports vs. Scott in 1986. It would be interesting to know what view Brubaker would take of bodies which are given special statutory recognition in England as guardians of heritage land, such as the National Trust and the Church of England.
The perspective of the book is Canadian, which means that the modern illustrations are mainly from Canada. However, because of the origins of Canadian law, the historical perspective is British. This gives a strangely nostalgic quality to the British case law, which is discussed largely to illustrate how effective common law can be as a tool for conservation. In a Canadian context, Brubaker demonstrates convincingly how the environment has suffered where private property rights in land have been overridden either by judges supporting the free enterprise of developers or by legislation giving development powers to public bodies. Similar illustrations could easily have been found from the United Kingdom. Indeed, Brubaker reveals familiarity with many such cases by mentioning them in footnotes or in the course of analysing Canadian judgements, even if she does not expand upon them. Thus Salvin vs. North Brancepeth Coal Co. in 1874 is mentioned in passing, but without any suggestion that it provides a classic illustration of the encourageĀ­ment of industry by Victorian judges at the expense of amenity.
Similarly, Allen vs. Gulf Oil Refining Co. in 1981 is cited as authority that if a public body wishes to escape liability for nuisance by relying on statutory powers, it must establish that any proved nuisance was wholly unavoidable ‘and this quite regardless of the expense that might necessarily be involved in its avoidance’. What is not explained is that Allen’s case is primarily an illustration of the manner in which statutory authority to carry out public works, such as the construction of an oil refinery, overrides the normal constraints of nuisance law. As Lord Roskill said in Allen, ‘the underlying philosophy plainly is that the great public interest arising from the construction and the use of (public undertakings) must take precedence over the private rights of owners and occupiers of neighbouring lands not to have their common law rights infringed by what would otherwise be actionable nuisance’.
Even if her contrast between England and Canada paints the British scene in too rosy a light, Brubaker’s numerous examples from Canada, and some from other parts of the world, provide a stimulating perspective for a reader familiar with the English case law on nuisance. The perspective is not a reassuring one. The reader is left with a sense that, because of the vastness of Canada and because of historic indifference to the claims of the native Indian populations, more extensive environmental damage has been tolerated there than in our small, densely populated islands. However, no real consideration is given to the possible advantages of planning law and other public law regimes such as those dealing with water resources and pollution. It may be that if public environmental regulation had been applied as extensively in Canada as it has been in England, Brubaker might have been less desperate in looking to the common law for a panacea.
Brubaker offers a robust justification for the maintenance of the private law of nuisance as a framework for conservation. Just as it would be unfair to criticize a book written from a Canadian perspective for not including an up-to-date analysis of British case law, it would also be wrong to write this volume off for failing to recognize the weaknesses of the common law and the need for effective public law controls. Nuisance law does still have a place to play in environmental protection and Brubaker makes a powerful plea that far from its role being reduced in value it could usefully be enlarged. The analysis is pitched at a general level which invites questioning but the extensive examples and case studies in the text and the full footnotes and bibliography invite the reader to go deeper. Three appendices of case studies concerned with trespass, private nuisance generally and riparian rights would provide interesting material for a series of seminars.
J. D. C. Harte
Newcastle Law School
University of Newcastle upon Tyne

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