The Electronic Journal of Sustainable Development
June 15, 2009
This important book builds on earlier work by the same author, Property Rights in the Defence of Nature (1995), which made a strong case that customary common law in the United Kingdom, the United States and Canada has been an effective means of pollution control, where and when it has been allowed to work. As that earlier book showed, however, legislative law, often drawn up on the premise that it would promote economic progress or the public good, has often weakened these customary common law remedies to air and water pollution.
This new book applies the same analytical lens to the narrower issue of air and water pollution originating on farms. The focus of the analysis is primarily Canadian policy, although connections to similar policies in the United States are made. Brubaker’s thesis is that centralization of authority at the provincial level has eroded rights of property owners in rural communities by undermining the effectiveness of customary common law remedies against trespass and nuisance and also has impaired the ability of local municipal governments to resolve environmental conflicts over farm businesses, especially large livestock farms. The main culprit in this provincial centralization is so called “Right to Farm” legislation. Now in place in all ten provinces, right to farm legislation, among other things, reduces farmers’ risk of liability for actions that would likely be found to be trespasses, nuisances or violations of riparian rights under customary common law. Right to farm legislation also typically overrides municipal land use policy, reducing the power of local municipalities to block the construction or expansion of large scale livestock production facilities.
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