Chapter 11: Alienable Rights

Go Back to the Table of Contents for Property Rights in the Defence of Nature

“I think the problem is that by enshrining private property rights in the Constitution at this point, we would be signalling that we want things done differently from the way they’ve been done in the past.”

-William Andrews
West Coast Environmental Law Association, 1991(1)

When in 1991 the Canadian government proposed entrenching property rights in the Constitution, many environmentalists balked. Career environmentalists almost unanimously warned that including property rights in the Canadian Charter of Rights and Freedoms would weaken government’s power to plan and legislate. Landowners and businesses, they cautioned, would fight unconstitutional pollution regulations in the courts. Even unsuccessful court challenges could tie up legislation, create uncertainty, and cost considerable sums, chilling government actions.(2)

Others objected that stronger property rights would give the judiciary too much power. “The courts,” the Canadian Environment Network warned, “will be second-guessing the legislatures.” Pollution Probe went further, saying that the courts would become the primary decision makers in environmental disputes, gaining an essentially legislative role.(3)

Several organizations feared that charter-based property rights could confer the right to pollute. According to Pollution Probe, “When we talk about property rights, what we’re really saying is that everybody can do what they want with their property.” Although the organization admitted that such a right would be subject to the rights of other property holders, it warned that victims would bear the onus of showing that they had been harmed by the pollution. And no protection would be accorded to the environment for its own sake.(4)

Lay environmentalists soon joined the chorus of those opposed to entrenching property rights in the Constitution. Those persuaded that property rights would harm the environment included organizations as diverse as the Ontario Coalition Against Poverty, the Coalition of Provincial Organizations of the Handicapped, the Congress of Black Women of Canada, and the Ontario Coalition for Better Childcare.(5) MPs from the New Democratic Party called property rights “an incredible red flag” for environmentalists.(6) Apocalyptic rhetoric reached new heights in the Globe and Mail‘s letters column, where a geography professor warned that the property rights proposition “is a legal licence for corporations to exploit land, water and air resources to the fullest extent possible, over as much area as possible, in the shortest time possible, regardless of consequences.”(7)

Virtually all of the environmentalists’ concerns were unfounded. Some reflected an ignorance of the law and of legal history; others, a blinding bias towards centralist regulatory approaches to the environment.(8)

Experience in the United States demonstrates that property rights need not impede government’s ability to legislate environmental protection. That country, whose constitution protects property rights, generally enjoys higher environmental standards than Canada.(9) There, property rights have not interfered with the federal government’s ability to make and enforce strong environmental protection laws – even those that infringe property rights. The U.S. Supreme Court has never used property rights to strike down federal environmental protection statutes and regulations.(10)

Property rights are even less likely to strait-jacket Canadian governments. While rights entrenched in the Canadian Charter can’t be overridden as easily as their unentrenched counterparts, the Charter itself limits the extent to which individual rights can inhibit government action. No Charter right is absolute. Section 1 of the Charter allows governments to balance individual rights against the public interest; it empowers them to violate rights to the extent justified in a free and democratic society. Importantly, the courts, rather than the governments themselves, determine whether the violation is justified.(11) But the Charter also allows governments to act without court sanction: Section 33 permits federal and provincial legislators who are determined to override rights to do so notwithstanding their Charter protection. In short, while the Charter both raises the legal hurdle and increases the political costs of overriding individual rights, it does not disempower governments.(12)

Stronger property rights, as their opponents fear, could indeed lead to frequent court challenges. But there is nothing wrong with people pursuing justice. Frivolous cases should be – and are – avoided: courts simply refuse to hear them. Serious cases should be encouraged. Citizens’ challenges to laws violating their property rights – laws sanctioning pollution at their expense – should be celebrated by environmentalists. Court challenges would likely abate over the years following the entrenchment of property rights; as courts struck down laws offending people’s rights to clean land, air and water, governments would be increasingly reluctant to pass new laws allowing pollution, giving victims fewer reasons to go to court.

To the extent that property rights would shift responsibility from governments to individuals working through the courts, the environment would benefit. All too often governments have used their sweeping powers to legislate environmental destruction rather than protection. Even outspoken opponents of property rights acknowledged during the constitutional debate that governments have failed to protect the environment. Several conceded that the courts have done a good job, agreeing that the courts are often more enlightened than the political process; and the public, they added, is ahead of the courts.(13)

The argument that property rights will confer the right to pollute is simply wrong. Property rights have long been governed by the maxim “use your own property so as not to harm another’s.” As we have seen, property rights in their heyday enabled pollution victims to fight for clean land, air and water. Potential victims and allied environmentalists should have applauded the promised return to a strong property rights regime.

Polluters, in contrast, had good reason to fear the constitutional entrenchment of property rights. A representative of the British Columbia mining industry expressed to a parliamentary committee a sentiment common among his peers with this caution about property rights: “[W]e shouldn’t be adding more to the Charter, because the more we add to the Charter the less [sic] we take away from the supremacy of Parliament.”(14) By and large, polluters favour Parliament’s supremacy, preferring government regulation to “regulation” by affected individuals defending their property rights. Industries can capture governments, who rely on them for satisfied voters and funds; governments rarely withhold permission to pollute. Individuals, in contrast, often have nothing to gain from the pollution and resist capture.(15)

It is not property rights but rather their absence that allows resource and manufacturing companies to pollute with impunity. Polluters understand that people armed with strong property rights could enforce trespass and nuisance laws against them. Warned one multinational oil company executive, “If people in Alberta had property rights we’d have to stop most of our drilling. If you let individual property owners decide when we can drill on their land, they’ll hold us up to ransom.”(16)

While amending the Constitution would provide the surest protection for property rights, it is not the only way to bolster them. Provincial governments, who have jurisdiction over property and civil rights, could implement myriad measures to strengthen property rights.

Provincial legislators could ensure that nothing in provincial acts legalizes nuisances, thus maintaining their citizens’ common law rights. Legislators could replace permits granting absolute power to pollute – permits that sanction not just the polluting activity but the necessary consequences of that activity – with those permitting activities on the condition that they do not violate others’ property rights.(17)

Such conditions were common in nineteenth-century England, where early sanitation statutes maintained common law rights by specifying that they did not legalize nuisances or other unlawful acts. The Gas Act, which provided that in carrying on their works, gas manufacturers could not injure surrounding land, similarly protected the right of potential victims to sue.(18)

Federal and provincial governments intent on strengthening property rights could also settle legitimate land claims, which are essentially a property rights issue.(19) Aboriginal communities don’t just want to use their lands and resources; they seek ownership and jurisdiction over them. “Proprietary rights to resources,” the Native People’s Circle on Environment and Development explained, “provide more real economic benefits than do access rights.”(20)

The emphasis on proprietary rights has been reflected in recent land claims. The 1992 Nunavut settlement did not merely give the Inuit the right to manage many resources in the Eastern Arctic; the claimants also secured title to surface rights over 350,000 square kilometres and sub-surface rights over 36,000 square kilometres.(21) And in their claim to 58,000 square kilometres in northwestern B.C., the Gitksan and Wet’suwet’en Indians sought ownership of the land and jurisdiction over its forest, fishing, mining and water resources.(22)

Many native leaders distinguish between individual and collective property rights, favouring the latter. As the Native People’s Circle on Environment and Development explained, “The concept of private ownership is foreign to Aboriginal people, who more typically think in terms of community use of land and resources, and territorial boundaries which shift from season to season as patterns of resource use change. Nevertheless, in order to develop healthy economies, Aboriginal people today are looking for ownership of the land base and increased control over resources.”(23)

The Crees of Oujé-Bougoumou, Quebec, learned what happens to those who don’t own their land. Over a period of 75 years, governments and mining companies pushed their community from one location to another seven times. In 1927, after Quebec granted a mining company rights to land long used by the people of Oujé-Bougoumou, the company destroyed Cree homes while clearing trees from the land. Blasting for a new mine again uprooted the community in 1951. It moved to an island nearby, which mining company clearcuts soon washed away. The community was chased from another home in 1962, when chemicals used in a gold mine poisoned its drinking water. The Crees’ next eviction notice came from the Department of Indian Affairs in 1970: insisting that the people were not entitled to a reserve, federal officials burned their homes to the ground. Finally, in 1988, the province provided the community with land on which to build a village. Unlike their kin on reserves, where individual landownership is forbidden, the people of Oujé- Bougoumou purchased their new homes; they understood the importance of establishing property rights in that which they hoped to preserve.(24)

Property rights, to be meaningful, must be enforceable. If a victim can’t successfully sue a polluter that has harmed him, his property rights are of little value. To ensure that victims can obtain justice long after companies have ceased doing business, provinces could require polluters to obtain bonds or liability insurance providing adequate funds for clean-up and compensation. Environmental liability insurance, while still limited and expensive, is becoming more common. Some insurers now promise to cover injuries suffered when their polices were in effect, even if the claims are filed after the policies have lapsed.(25)

Requiring polluters to be liable for future pollution costs is not new. British Columbia, Ontario and Quebec require mining companies to provide in advance for site reclamation. Financial assurances range from bonds or letters of credit to cash trust funds. To the degree that the costs of such arrangements reflect a company’s environmental liabilities, they encourage environmentally responsible practices. Banks are increasingly demanding environmental audits and management plans from their clients before approving credit; they want to ensure both that their security will not be devalued and that the borrower’s cash flow will cover both debt servicing and environmental liability. If insurers become involved, they will inevitably follow suit, using premiums to force companies to operate in a manner minimizing current and future risks.(26)

In addition to entrenching property rights in the Constitution, rescinding laws that legalize nuisances, settling aboriginal land claims, and requiring environmental liability insurance, governments should take one more step towards strengthening property rights: they should curb expropriation by both public and private agencies. Only then will citizens enjoy truly secure property rights.

Notes

1. Minutes of Proceedings and Evidence of the Standing Committee on Environment, Issue No. 13, October 24, 1991, 48.

2. Such views were thoroughly aired in parliamentary committee hearings into the effects of the proposed constitutional changes on the environment. They appear throughout the Minutes of Proceedings and Evidence, op. cit.. See, for example, Issue No. 12, October 23, 1991, A3-4 (featuring the Rawson Academy of Aquatic Science and the Canadian Arctic Resources Committee); Issue No. 17, November 6, 1991, 8, 33, 35 (featuring the Canadian Environmental Law Association, Sierra Club of Canada and Pollution Probe); and Issue No. 13, October 24, 1991, 44-8, 56-7, A32 (featuring the West Coast Environmental Law Association).

For more information on the Canadian Environmental Law Association’s position, see the Globe and Mail, “Property-rights plan under fire”; echoed in “Debate over property right[s] entrenchment heating up,” Environment Policy & Law, 313.

For information on the Constitutional Caucus of the Canadian Environmental Network’s position, see “Property rights have no place in the charter,” Alternatives, 25.

3. Constitutional Caucus of the Canadian Environment Network, ibid., 25. Also see Minutes of Proceedings and Evidence, op. cit., Issue 12, A-4, and Issue 17, 8, 9, 36.

4. Minutes of Proceedings and Evidence, op. cit., Issue 17, 9. Also see Issue 12, A-4.

Jim Fulton, MP, also claimed that property rights would entrench the right to pollute. Minutes of Proceedings and Evidence, op. cit., Issue No. 13, October 24, 1991, 26.

Similarly, Terence Wade, senior director of legal and governmental affairs for the Canadian Bar Association, argued: “I could easily argue [that] my right to build a slaughterhouse on my property in a residential neighbourhood is a property right – ‘I can do what I wish with my property'” (Globe and Mail, “Property, personal rights could collide”).

5. Canadian Environmental Law Association, “web.announcements topic 130,” Announcement on “the Web” (a computer network providing electronic mail and bulletin board services), December 23, 1991.

6. Globe and Mail, “Property rights seen as bargaining ploy.”

7. Globe and Mail, Barry Wellar, letter to the editor.

8. This bias was noted by the Honourable Tom MacMillan, former minister of the Environment, Minutes of Proceedings and Evidence, op. cit., Issue No. 6, September 26, 1991, 31, 34.

9. Globe and Mail, “Canada falls behind U.S.”; and the Hamilton Spectator, “U.S. environment laws ahead of ours.”

10. The Canadian Real Estate Association, Property Rights, 15, 64. This study was authored by Gaylord Watkins, former chairman of the Public Interest Advocacy Centre and a lawyer with expertise in constitutional law.

On November 13, 1991, Mr. Watkins told a public forum at Toronto’s St. Lawrence Centre that over the past 50 years, the U.S. Supreme Court has not struck down any remedial legislation – including environmental legislation – on the basis of property rights arguments.

Also see “Debate over property right entrenchment heating up,” Environment Policy & Law, 313; and William Futrell, president, The Environmental Law Institute, Minutes of Proceedings and Evidence, op. cit., Issue 9, 23. Futrell points out that property rights have undermined some state or local regulations.

11. In balancing competing interests under Section 1, the Supreme Court has adopted a proportionality test. A measure that violates a right protected by the Charter can be justified only if it is carefully designed to achieve a given objective (one that relates to pressing and substantial concerns), violates the right to the smallest degree possible, and results in effects that are in proportion to the objective (R v. Oakes, [1986] 1 S.C.R. 103 at 138-9).

12. Gaylord Watkins told the Toronto forum (op. cit.) that recent Charter cases demonstrate that Canadian courts are not curbing governments’ rights to pass legislation. Entrenching property rights, he suggested, would not stop governments from planning and legislating. It would, however, inspire better planning by ensuring fair compensa-tion to those expropriated and by forcing governments to be more accountable.

13. Minutes of Proceedings and Evidence, op. cit., Issue No. 12, 19-21; Issue No. 13, 47, 56-7, A32; Issue No. 16, 43; Issue No. 17, 11, 18.

14. Mr. Melvin H. Smith, public policy consultant, the Mining Association of British Columbia (describing his “own personal inclination”), Minutes of Proceedings and Evidence, op. cit., Issue No. 18, November 7, 1991, 14.

15. For more information on industry’s affection for regulation, the ease with which industry captures its regulators, and the adverse effects of regulation’s delaying market forces, see Owen and Braeutigam, The Regulation Game, 2, 9-11, 18-9, 25.

Also see Dolan and Lindsey, Economics, 812-834, for information on the theory of public choice. That theory posits that it is often easier for special interests to capture government than it is for voters to do so. Programs conferring benefits on a minority and dispersing costs widely among many taxpayers or consumers will often gain strong support from the former and indifference or only mild opposition from the latter.

16. Comment made to Lawrence Solomon after his speech to the Canadian Association of Petroleum Landmen, Montreal, Quebec, September 18, 1990.

Indeed, those with property rights may demand a “ransom” for the use of their land. In the United States, where gas pipeline companies do not have the right to cross Indian reserves without a tribe’s permission, tribes often negotiate easement fees that are only slightly less than the costs of routing the pipelines around their lands (personal communication with TransCanada Pipelines executive, July 16, 1993). Since such fees – which reflect a legitimate “internalization” of the costs of transporting gas – cut into the pipeline companies’ profits, one would expect the industry to be unenthusiastic about the property rights that make them possible.

17. Coase distinguishes between absolute and conditional rights (the latter are those that, in being exercised, may not constitute a nuisance) in “The Problem of Social Cost,” 27, where he cites M. B. Cairns, The Law of Tort in Local Government, 1954, 28-32.

18. Brenner, “Nuisance Law and the Industrial Revolution,” 423.

One act establishing sewage works is described in Pride of Derby and Derbyshire Angling Association Ld. and Another v. British Celanese Ld. and Others, [1953] 1 Ch. 149. The 1901 Derby Corporation Act, while establishing sewage disposal works, had specifically prohibited nuisances: “The sewage disposal works constructed . . . shall at all times hereafter be conducted so that the same shall not be a nuisance and in particular the corporation shall not allow any noxious or offensive effluvia to escape therefrom or do or permit or suffer any other act which shall be a nuisance or injurious to the health or reasonable comfort of the inhabitants of Spondon.”

The Gas Clauses Act is described in The Directors, &c., of the Hammersmith and City Railway Company v. G. H. Brand and Mary C. Louisa, his Wife (1869), L. R. 4 171 at 222 (H.L.).

Similarly, an order in connection with England’s Electric Lighting Act, specifying that “Nothing in this order shall exonerate the undertakers from any indictment, action, or other proceedings for nuisance in the event of any nuisance being caused by them,” is discussed in Shelfer v. City of London Electric Lighting Company and Meux’s Brewery Company v. City of London Electric Lighting Company, [1895] 1 Ch. 287.

19. Some native leaders opposed entrenching property rights in the constitution. The Chief of the Dene Nation warned that stronger property rights could enable individuals to block land-claims negotiations (Globe and Mail, “Proposal threatens natives”). And Chief Bill Wilson, the political secretary of the Assembly of First Nations, worried that property rights could emasculate regulations designed to protect property (Minutes of Proceedings and Evidence, op. cit., Issue No. 13, October 24, 1991, 29).

The Canadian Real Estate Association suggests that the protection afforded aboriginal rights under Section 35 of the Constitution is stronger than that which would be afforded by Charter property rights protection, since the former cannot be overridden under Sections 1 and 33 of the Charter (op. cit., 38-40).

20. The Native People’s Circle on Environment and Development, Final Report, 20.

21. Financial Post, “Inuit vote to change face of the Arctic” and “Agreement gives Inuit interest in mining Nunavut’s resources.”

22. Globe and Mail, “Natives win land rights in B.C.”; and the Financial Post, “B.C. court quashes land claim ruling.”

23. The Native People’s Circle on Environment and Development, op. cit., 20; also see 33.

Chief Bill Wilson, political secretary of the Assembly of First Nations, explained to the Standing Committee on Environment that the concept of exclusive jurisdiction over property is offensive to his people. He clarified his position as follows: “We know we own the land, we also know that the land owns us” (Minutes of Proceedings and Evidence, op. cit., Issue No. 13, October 24, 1991, 29).

Rosemarie Kuptana, President of the Inuit Tapirisat of Canada, also told the Standing Committee on Environment that the Inuit feel they have collective property rights (Minutes of Proceedings and Evidence, op. cit., Issue No. 8, October 3, 1991, 8).

24. Globe and Mail, “A dispossessed people comes home” and “A long and winding road.”

25. The market demand for such policies comes in part from U.S. banks; lenders may be liable for pollution costs in the event of a default (New York Times, “Insuring Environmental Liabilities”). Also see Canadian Council of Ministers of the Environment, Contaminated Site Liability Report, 1.

26. Financial Post, “Mining sector wants help for abandoned sites”; personal communication with George Miller, president, Mining Association of Canada, April 7, 1994; and Canadian Council of Ministers of the Environment, op. cit., 4.

Federal and provincial governments are threatening to tap business and consumers in order to establish a fund to pay for the clean-up of “orphaned” contaminated sites – sites whose owners can’t be found or are unable to pay for the clean-up themselves. “It’s really not fair to ask anybody to pay to clean up a mess made by someone else,” admitted one bureaucrat. “But many [stakeholder] workshop participants clearly felt that given that general unfairness, the unfairness should be shared” (Canadian Council of Ministers of the Environment, “Who Should Pay?”; personal communication with Dick Stephens, Manitoba Environ-ment, April 11, 1994).

Under the current program, the federal and provincial governments jointly fund the $250 million National Contaminated Sites Remediation Program, established in 1989 to clean up high risk orphan sites.

Contributions to the current and proposed funds bear no relationship to procedures at a specific site; they therefore provide no accountability mechanisms and no incentives for environmental responsibility.

For more information on banks’ role in reducing environmental risk, see Hull, Valuing the Environment, 9-10.

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