Owners are protectors (review of Property Rights in the Defence of Nature)

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.”
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