The Common Law and the Environment: The Canadian Experience

Elizabeth Brubaker
August 28, 1998

From Who Owns the Environment?
Edited by Peter Hill and Roger Meiners, Rowman and Littlefield, 1998
(This chapter draws from Elizabeth Brubaker’s Property Rights in the Defence of Nature, published by Earthscan in 1995.)

When the Canadian government proposed entrenching property rights in the Constitution in 1991, the mainstream environmental community expressed virtually unanimous opposition. Career environmentalists objected that stronger rights would weaken government’s authority to legislate and shift undue power to the judiciary. Further, they asserted that property rights would confer a right to pollute. Such concerns betrayed an ignorance of government’s role in environmental degradation and a profound misunderstanding of legal history. For centuries, property rights have empowered people to protect the environment. More often than not, it has been the legislated erosion of property rights that has allowed industries to pollute.

This chapter reviews the ancient roots of contemporary property rights and traces their evolution, influenced by English and American legal decisions, in Canada. It describes the ways in which concerned citizens have used their property rights to clean up and to prevent pollution. It then chronicles successive governments’ efforts to replace the common law with statutes and regulations governing the environment. Lastly, it recommends restoring strong property rights in order to return control over environmental degradation to those most directly affected by it.

Click here to view the entire chapter in PDF form

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