Common law has been defanged

Ilana Mercer
Calgary Herald
March 16, 2000

While reporting on the trial of Wiebo Ludwig and Richard Boonstra for the National Post, Christie Blatchford managed unintentionally to articulate the real issue in the subterfuge that runs as deep as the many hydrocarbon-emitting wells in the northwestern part of Alberta.

The Alberta Energy Company executives were so desperate to stop the spate of sabotage against oil-well sites in the Hythe region in 1997, recounts Blatchford, that “they were prepared to take the distasteful step of buying out Ludwig (the suspect) and the arguably improper one of bailing out the cash strapped RCMP.”

Here’s the nub of the issue: Compensating a property owner, albeit half-heartedly, for the trespass and nuisance of drilling a hydrogen sulphide leak-prone gas well on the periphery of the man’s property is “distasteful” to Blatchford. Conversely, the collusion between an arm of the state, represented by the RCMP, and the industry to investigate Ludwig, is only “arguably” improper.

Yet a citizen ought to be able to make use of the common law of trespass and nuisance to protect himself against polluters, these laws having been so deployed by individuals for centuries. From the inherited English common law in Canada, we get that “it is a trespass to place anything upon someone else’s property, or cause anything to be placed there by wind, water or other means.”

It seemed perfectly clear to the 18th century jurist Sir William Blackstone that the corruption of air qualified as a nuisance and should be carried out in remote places, so as not to deprive anyone of the use and benefit of his property.

Somewhere in the history of the jurisprudence there occurred a shift whereby it became onerous for the individual to achieve redress for transgressions against property. An account of the erosion of these rights can be found in Property Rights in the Defence of Nature by Elizabeth Brubaker, an Environment Probe researcher. Accordingly, nuisance, trespass and riparian common law had functioned for centuries as a means at the disposal of the individual to protect the environment by asserting property rights.

Enter the spurious concept of the public good and with it government-authorized activity. Because industry was seen as promoting progress, it was deemed by the legislature to be acting in the public interest, and was duly conferred with the statutory authority to pollute.

In fact, government has been consistent in stripping the common law of its power and usurping it with statutes, acts and regulations attached to which is a lower environmental standard than the common law would impel as well as a limited liability.

This erosion began as early as 1792 in England. The courts generally put up a valiant battle against the trampling of “minority rights” by government-authorized industry. Inspiring examples include the 19th century judge who claimed that for the court there was nothing more important than “keeping public bodies within their rights.”

Or the Ontario chief justice who rejected in 1952 the notion that a polluter who predates the complainant had a right to pollute. Wrote the justice: “Whether the man went to the nuisance or the nuisance came to the man, the rights are the same.”

But as parliaments undertook by legislative fiat to undermine individual rights to property, so, in time, did judicial philosophical underpinnings shift to reflect a commitment to the hollow concept of the public good.

Indeed “some of the most dramatic illustration of statutory authority,” writes Brubaker, “can be found in the British, American, and Canadian laws protecting railway companies from common law liability.” Soon after steam locomotives were authorized by British Parliament in 1832, nuisance lawsuits to stop noise, vibration, smoke and fire were halted.

“Parliament, in expressly authorizing the use of the locomotives, had overridden the common law and its protection of individual rights.” Even financial compensation could no longer be guaranteed.

The Alberta Energy Company can drill on the edge of a man’s property because the common law has been defanged.

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