Shafer Parker Jr.
Western Report
November 23, 1998
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Ask an environmentalist how to ensure an ongoing healthy ecology, and he will almost certainly suggest more government regulation. Who would have thought that a more effective method has always been available within the English-speaking world? Yet this method has kept the British Isles green, even though their population density is 75 times greater than Canada’s.
For 700 years, contends Elizabeth Brubaker, executive director of the Toronto-based Environment Probe, the protections built into English common law have enabled landowners to safeguard the value of their property, even in the worst days of the Industrial Revolution. Whether the polluter was a farmer, a refinery or a manufacturer, common law empowered the courts to deny him the right to dump waste onto somebody else’s property. She uses dozens of case law illustrations to demonstrate common-law protection fails only when governments interfere.
For example, in 1946 the Kalamazoo Vegetable Parchment Company (KVP) activated an old pulp and paper mill on the Spanish River near Espanola, Ont. Soon the river began stinking like rotten cabbage and fish were dying by thousands. The mill daily released between 3.5 and five tons of chemically contaminated wood fibre which accumulated along the banks in foul-smelling masses.
Five landowners took KVP to court, charging that by lowering the value of their land the company had violated their riparian rights, which in common law protect those who own or occupy land beside lakes and rivers. An Ontario High Court judge awarded them damages totalling $5,600 and gave KVP six months to stop polluting. The Ontario Court of Appeal affirmed the ruling.
Enter the politicians. Fearful of political repercussions if the mill’s 1,500 workers were laid off, premier Leslie Frost’s provincial government acted (ironically enough) through the Lakes and Rivers Improvement Act. They amended it to the effect that henceforth judges must not grant injunctions against polluters if “the importance of the operation…out: weighed the private injury inflicted.” Even when the Supreme Court of Canada in 1949 upheld the Spanish River landowners’ riparian rights, the Ontario government merely passed a law specifically exempting KVP from all environmental injunctions.
Since then the paper mill has staggered from one financial crisis to the next and from one owner to another, while persuading successive governments to pour in millions of taxpayers’ dollars in the form of grants and unrepaid loans. And it has made only half-hearted attempts to limit pollution of the Spanish River.
Not only does the KVP case serve as a graphic illustration for analyst Brubaker’s main points. It also lends weight to her suggestion that if property rights—including trespass and nuisance law—were enshrined in Canada’s Charter of Rights and Freedoms, potential pollution victims would be invested with power to fight back, independent of government and its myriad regulatory programs.
To those who fear that bolstering property rights would hand landowners the right to pollute, she replies that history and logic prove otherwise. First, owners are generally reluctant to do anything that permanently devalues their land. Second, serious pollution usually affects neighbours, who quickly seek the law’s protection.
She contends, in fact, that whether it’s a case of a king in need of immediate revenue or a politician seeking re-election, governments habitually condone pollution: “Statutes authorizing nuisances now abound. Like the KVP Act discussed earlier, laws may shield a single polluter. Or, like the Public Health Act, they may expressly confer statutory authority on a whole class of polluters—in that case, those who operate sewage treatment plants.”
In a cosy concatenation of hypocrisy and perfidy, the author charges, governments and industry have conspired to use regulations to cover what amounts to environmental rape: “As one industry advisor noted, ‘No industry offered the opportunity to be regulated should decline it. Few industries have done so.”‘ Only individual property owners, desiring to maximize their land’s profitability, or to pass its value to their children, will accurately evaluate the land’s worth and insist that it not be casually discarded.
Most Canadian environmentalists, convinced that individuals and markets are not to be trusted, nevertheless continue to insist that regulation, not the protection of private property, is key to the land’s preservation. Not even glaring government failure to protect Canada’s fisheries and forests, or the contrasting success of such private environmental efforts as Ducks Unlimited in Canada or the National Trust in Britain, has persuaded them that respect for property rights can keep the land greener.
Elizabeth Brubaker argues very convincingly, however, that “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.”
Environment Probe 