Although expropriation is one of the most extreme uses of government power, Canadian governments have almost complete discretion over when they resort to it. Governments often justify this violation of their citizens’ property rights as being necessary to carry out public purposes. But expropriations that serve private interests, and those that are unnecessary, have become commonplace. Citizens have little recourse against arbitrary, unfair, and unjustified expropriations. This study by Elizabeth Brubaker provides an overview of federal and provincial expropriation laws. It examines the forums that give landowners only an illusion of meaningful participation in the expropriation process. It looks at a number of disputed expropriations, and at how the courts have grappled with them. And it suggests reforms to better balance the needs of governments with the rights of landowners. Continue reading
Category Archives: Reports, Studies, Books
The Role of Property Rights in Protecting Water Quality (Revisited)
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A new book on water management features a chapter by Elizabeth Brubaker on the role of property rights in protecting water quality. L’eau entre réglementation et marché, published in France, looks at innovative approaches to managing water quantity and quality and explores market mechanisms that may be more effective and less costly than traditional regulations. Continue reading
Unfair, unsound, and unnecessary: A critical look at expropriation in Canada in 2013
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Those with the power to expropriate face few restrictions in Canada. Their objectives cannot be questioned. They need not demonstrate that their plans are viable. Nor are they bound by the findings of hearings into proposed projects. As a result, projects that are unfair, unsound, or unnecessary often go ahead. Continue reading
Water Quality Trading in Ontario
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This paper, by Richard McNeil, explores Water Quality Trading (WQT) as a complement to the traditional regulatory approach to reducing water pollution. It examines the theory behind WQT, reviews common practices where trading has been introduced, and identifies principles for effective programs. It presents two Ontario case studies: the South Nation River watershed, where WQT has been a success, and the Lake Simcoe watershed, where WQT is currently being considered. Continue reading
Holding Frackers Accountable for Groundwater Pollution: An Analysis of Canada’s Liability Regimes for Hydraulic Fracturing
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This paper, by Adam Shedletzky, focuses on the legal provisions governing groundwater pollution due to fracking for shale gas. It examines the liability regimes (statutory and common-law) in Ontario, British Columbia, and Alberta. It concludes with recommendations for strengthening the regulatory regime to enhance frackers’ incentives to take care and to ensure that those who are adversely affected by fracking can be “made whole.” Continue reading
Debunking the myth of public-sector accountability
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Those who advocate purely public water and sewage utilities warn that private financing and operation impede transparency, diminish accountability, and undermine government regulation. They have it backwards: Public utilities have repeatedly shown themselves to be un-transparent and un-accountable. Continue reading
Shale Gas in Canada: An Overview
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In this overview of shale gas in Canada, Manish Oza addresses basic questions about the location and volume of the resource, the environmental concerns associated with its extraction, and the regulatory regimes governing the industry. The paper is intended not to provide the last word on these issues but to help inform the still-early stages of the public policy discussion across the country. Continue reading
A Bridge Over Troubled Waters: Alternative Financing and Delivery of Water and Wastewater Services
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In this Commentary, published by the C.D. Howe Institute, Elizabeth Brubaker writes that drinking water and sewage systems across Canada threaten public health and the environment. Municipalities lack the resources to correct utility failings. Private water and wastewater services providers are well positioned to help municipalities with needed capital and expertise. Engaged through competitive contracting and governed by performance-based contracts, private providers have incentives to find efficiencies and perform well. Continue reading
Encouraging Pollution: The Perils of Liability Limits
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The authors of this research paper examine the rationales for and the effects of laws that cap liability for environmental disasters, such as oil spills and nuclear accidents. Such laws, they conclude, subsidize environmentally harmful activities and encourage risky behaviour. Continue reading
Smith v. Inco: Holding the nickel giant responsible for historical pollution
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Stuart Norris examines the July 2010 decision in Smith v. Inco, which found Inco liable for reduced property values resulting from nickel contamination in Port Colborne, Ontario.
Ontario’s Water Opportunities Act: A Missed Opportunity to Price Water Responsibly
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The Ontario government has introduced legislation to conserve water resources, sustain municipal water infrastructure, and support Ontario’s water industry. In its submission on the proposed act, Environment Probe points out that it overlooks the role that pricing must play in achieving all three goals. The proposed act will be inefficient, ineffective, and even counter-productive. Its provisions are weaker than those in legislation that was passed in 2002 – legislation that has not yet come into force, since successive governments have refused to proclaim it.
Wastewater System Effluent Regulations: Will They Help or Harm the Environment?
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Environment Probe’s submission to Environment Canada concerning the federal government’s proposal to regulate wastewater under the Fisheries Act. Probe raises four concerns about the proposed regulations: They will relax existing standards; they will dis-empower the public; they will allow some municipalities to pollute for another 30 years; and there is no guarantee that they will be enforced.
Open Justice in the Common Law
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This paper explores the development and application of the common-law principle of open justice. For centuries, people used common-law courts to resolve disputes about pollution. The courts were open and accountable. Environmental disputes are now often resolved by regulatory bodies that are less transparent. For example, disputes concerning agricultural pollution are heard by government-appointed right-to-farm boards. Some boards do not release their decisions to the public, and some delete key information regarding the parties and their locations. This lack of transparency makes it difficult for people to make informed decisions about where to live, how to behave, and what to expect. When governments move decisions about the environment from courts to administrative bodies, it is essential that they adopt the principles of transparency and accountability that have long infused the common-law.
Safeguarding and Sustaining Ontario’s Water Resources: Will the Province’s Proposals Achieve Its Goals?
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Environment Probe’s comments on Stewardship, Leadership, Accountability: Safeguarding and Sustaining Ontario’s Water Resources for Future Generations, a Proposal Paper presented by Ontario Minister of the Environment John Gerretsen and Ontario Minister of Natural Resources Donna Cansfield.
Right-to-Farm Legislation in British Columbia
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This paper describes the development of right-to-farm legislation in British Columbia and examines the decisions of the board established to hear complaints about agricultural nuisances.
Water and Wastewater Treatment in Canada: Tapping into Private-Sector Capital, Expertise, and Efficiencies
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This chapter from A Breath of Fresh Air: Market Solutions for Improving Canada’s Environment reviews the challenges faced by Canada’s water and wastewater utilities and proposes private investment, private operations, and better accountability mechanisms, including enforceable contracts and more effective regulation of utility performance. It also recommends a federal role in facilitating private-sector involvement.
Property Rights: The Key to Environmental Protection
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A chapter from A Breath of Fresh Air: The State of Environmental Policy in Canada, a collection of essays edited by Nicholas Schneider exploring market-based environmental policy options for Canada. In this chapter, Elizabeth Brubaker discusses the roles that property rights play in protecting the environment: They provide powerful incentives for the preservation of natural resources and they are effective tools to resolve differences over resource use. Although Brubaker proposes a number of means to strengthen property rights, she advocates one principal reform: the enshrining of property rights in the Canadian Charter of Rights and Freedoms.
Right-to-Farm Legislation in Canada
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This paper outlines the provincial laws that exempt farmers from liability for the nuisances they create. It describes the new standard of "normalcy" by which agricultural practices are often measured and examines the farm practice review boards that have been established to determine whether disputed practices are normal, and thus acceptable.
Greener Pastures: Decentralizing the Regulation of Agricultural Pollution
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By Elizabeth Brubaker.
This book traces the evolution of laws permitting farms to grow larger and to create nuisances — especially odours — that harm their neighbours. It argues for a return to a more decentralized, rights-based regulatory regime in which individuals and communities are empowered to protect themselves from polluting farms.
Published by the University of Toronto’s Centre for Public Management, 2007
Creating Viable Water Systems: Emerging Best Practices in Governance
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Prepared for Indian and Northern Affairs Canada. This report examines reforms to the governance of municipal water systems in Ontario, considers factors determining their success or failure, identifies emerging solutions to lingering problems, and draws lessons that may help solve some of the problems plaguing aboriginal water systems.
Environment Probe 