Source Protection

Elizabeth Brubaker
August 2, 2001

Energy Probe Research Foundation’s Presentation to the Walkerton Inquiry’s
Public Hearing on Source Protection

(A list of EPRF’s recommendations appears at the end of this presentation.)

Source protection has to include the protection of both the quality and the quantity of water. The written recommendations that EPRF submitted for this hearing addressed both issues. In my oral submission, I want to focus only on the quality issue. I’ll save our comments on the quantity issue for the hearing devoted to that subject.

Our overarching recommendation on water quality is really very simple: The provincial government should grant no one the right to contaminate a source of water.

What this means is that sewage treatment plant owners, farmers, and industrial polluters should ensure that their wastes do not impair the quality of water. They should be responsible for any damage that they cause. Criminal and tort liability should apply.

Mr. Commissioner, we’re aware that this will be a difficult recommendation for you to make. You mentioned at the last hearing that your recommendations have to pass a reality test. And the unfortunate reality is that the government is unlikely to prohibit all pollution any time in the near future.

Having said that, we’re going to recommend it anyway. The principle is far too important to abandon in the name of pragmatism.

It’s also not nearly as outlandish as it first sounds. The principle that no one has the right to contaminate a water source is firmly established under the common law. Under the common law, people have a right to both use and enjoy their property. But they also – and this is critical – have a responsibility not to interfere with their neighbours’ rights to use and enjoy their property. This principle is embodied in a maxim that has long governed court decisions: “Use your own property so as not to harm another’s.”

That principle has profound implications for source protection. Polluters may not, in using their own property, harm others’ water sources. If they do, their victims may take them to court, demanding both an injunction and damages.

Pollution usually violates people’s common law rights in one of three ways. It may be a trespass, or a nuisance, or a violation of someone’s riparian rights.

Under the common law, it’s a trespass to place anything upon someone else’s property. It doesn’t matter if the substance is toxic or perfectly harmless. And it doesn’t matter if there’s a lot of it or just a tiny bit. As one judge explained, “every invasion of private property, be it ever so minute, is a trespass.”

Trespass law prevents direct, tangible invasions. For indirect invasions, and for those that can’t be seen or touched, nuisance law often applies. A nuisance is something that interferes with the use or enjoyment of private property. Nuisance law has been of tremendous help to those fighting all kinds of pollution. Back in the 1920s, one judge went so far as to say, “Pollution is always unlawful and, in itself, constitutes a nuisance.” Pollution of groundwater is a nuisance.

Most often, people using the common law to protect surface water have used riparian law. Riparians are the people who either own or occupy land beside lakes and rivers. Under the common law, they have the right to the natural flow of water beside or through their property. They’re entitled to have the waters come to them “without obstruction, diversion, or corruption.” The riparian right has been described as a right to water in its “natural state” … or a right to water “substantially unaltered in quality.”

The common law’s intolerance of pollution provides municipal water providers and individual well owners with powerful tools to protect their water. In many cases, it provides a mechanism to enforce a regime of zero discharge or the virtual elimination of pollutants – goals frequently advocated by environmentalists today.

The common law makes it possible to achieve these ends without relying exclusively on the government or the courts. Indeed, rights holders rarely end up in court. The common law has a prophylactic effect. By requiring polluters to cease their harmful activities and to pay for damages, it establishes incentives not to pollute.

I don’t think there’s any question that the common law facilitates source protection. But there’s a rub. Common law rights only exist in the absence of statutory provisions to the contrary. Over the years, common law rights to clean water have been eroded. Successive provincial governments have passed laws that have taken precedence over the common law.

In Ontario, the erosion of the right to clean water dates back to 1885. That’s when the government passed a law limiting the use of injunctions against polluting sawmills. Such intervention was extremely rare in Ontario in those days. It remained fairly rare until about 50 years ago. In 1950, the government protected pulp and paper mills from injunctions. A few years later, it protected sewage polluters. And still later, farmers.

It’s not just these blatant laws that have weakened common law rights to clean water. Hundreds of regulations, permits, and licences have had the same effect. Certificates of Approval are, in fact, pollution permits. When a government licenses an activity, it generally licenses all of that activity’s inevitable results, including any inevitable pollution. Once a government has authorized an activity, those affected by it lose their rights to sue.

All of the pollution rights that governments have granted are subsidies. They externalize the costs of pollution. It’s important to understand that they don’t reduce the costs of pollution. They simply shift them from the polluters to other users of the water. They may make farming, or sewage treatment, less expensive … but they make drinking water more expensive. Consumers are required to pay for well-head protection, or additional treatment, or alternative sources of water.

The costs to consumers can be enormous. We mentioned in our written submission that utilities in the American Midwest spend an extra US$400 million annually to treat water for atrazine, a pesticide commonly found in groundwater. The US EPA estimates that reducing agricultural pollution could save at least US$15 billion in avoided costs of constructing advanced water treatment facilities. Permitting pollution can put a significant burden on consumers. That’s not equitable.

In addition to being unjust, the transfer of costs from polluters to other users is counterproductive. It reduces polluters’ incentives to avoid polluting. So it’s ecologically unsustainable. And it’s also often economically inefficient. Pollution prevention is often the cheapest alternative.

For reasons of equity, and economic efficiency, and environmental sustainability, we therefore recommend that the provincial government re-establish the principle that individuals have rights to clean water flowing under, through, or beside their property.

Of course, that’s easier said than done. This is a case of the principle being a lot easier than the practice. But articulating and embracing the principle would be a valuable first step.

The most obvious second step is for the government to grant no new rights to pollute. When authorizing an activity, the government should specify that it’s not legalizing trespasses, nuisances, or violations of riparian rights. In legislation, it should include “savings clauses” that preserve plaintiffs’ rights to bring tort actions against those who harm them. Such clauses used to be common in England, and still are in the US. Inserting them into Ontario’s laws would once again provide citizens and the environment with immeasurable protection.

After that, it gets harder. Some rights to pollute are firmly entrenched. In the case of some existing polluters, the government will have to expropriate those rights and compensate their holders. In some cases, grandfathering may be appropriate. The approach will depend on the industry and on the nature of its pollution permits.

We haven’t tried to identify all of the laws that should be changed. That would be well beyond the scope of our intervention. We have, however, recommended changes to the laws governing water and sewage utilities. We’ve recommended that the government restore full liability for utilities’ owners and operators.

Specifically, it should repeal section 331 of the Municipal Act. That section shields municipalities, council members, and municipal employees from common-law liability for poorly operating water and sewage systems. It does so by forbidding nuisance proceedings in connection with the escape of water or sewage from water or sewage works.

The government should also repeal section 59 of the Ontario Water Resources Act. That section effectively immunizes sewage works from tort challenges. It deems them to be operated by statutory authority as long as they’re in compliance with the Ontario Water Resources Act and the Environmental Protection Act.

Those are just initial suggestions. We won’t try to address others at this point. For this inquiry, the specifics aren’t as important as the principle. And the principle is that the government should be steadily working to restore common law rights to clean water. It won’t happen immediately. And it won’t be easy. But it certainly isn’t impossible. It’s not as if we’re suggesting a return to some distant golden age. Really, the presumption of a right to pollute has evolved only recently. It’s happened within the lifetime of many of the people in this room. The right to clean water remains very much a part of contemporary legal thinking. It’s time to re-introduce it into political thinking.

Recommendations for the provincial government:

The government should grant no one the right to contaminate a source of water. The government should pass a law preventing the issuance of new rights to pollute and committing the province to a goal of retiring existing rights when practical. Where appropriate, the government should expropriate existing pollution rights and compensate their holders.

The government should re-establish the principle that individuals have rights to clean water flowing under, through, or beside their property.

When authorizing an activity, the government should specify that it is not legalizing trespasses, nuisances, or violations of riparian rights. In legislation, it should include “savings clauses” that preserve plaintiffs’ rights to bring tort actions against those who harm them.

The government should restore full liability for the owners and operators of water and sewage utilities. Specifically, it should repeal section 331 of the Municipal Act and section 59 of the Ontario Water Resources Act.

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