Chapter 5: Growth at All Costs

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

“With any province, such as this, growing as it is, it is impossible not to affect the conditions of people and of streams and watersheds, as compared to the way they were before. They must be affected.”

-Ontario Premier Frost, 1956(1)

Nineteen fifty-five was a bad year for Ontario’s municipal polluters. In separate cases, courts ruled that two municipalities – Woodstock and Richmond Hill – must stop dumping raw sewage into local rivers. But the municipalities needn’t have worried: the provincial government came to their rescue before the injunctions took effect.

Woodstock had constructed its sewage disposal plant in 1922 for a population of 9,000. In the following decades, the plant failed to keep up with the city’s growth. Improperly maintained and operated, it could not handle the waste from 16,000 residents; the sewage simply overflowed into the Thames River, or received inadequate treatment before being discharged there.

Mr. Burgess, who operated a dairy farm just downstream from the sewage outlet, found one of his cows mired in the Thames in 1947. He inspected the river, which he found “slimy and stinking, with solid matter flowing downstream.” The condition worsened over the next several years. The cows developed dysentery, decreased their milk production, and aborted their calves. Mr. Burgess sold them at a loss. He stopped renting out pasture land, and he stopped selling sod to landscape gardeners, since he had no cattle to keep it short.

In 1955, Mr. Burgess went to court, where he sought and obtained an injunction and damages. The judge who heard the case found that Woodstock’s pollution of the river constituted a nuisance which should be restrained. Citing the KVP case, he simply explained, “where there is pollution of a watercourse, then an injunction ought to be granted.”(2) The judge did, however, make one concession: he stayed the injunction for 18 months, giving Woodstock a chance to upgrade its plant.

Meanwhile, the Village of Richmond Hill was undergoing a similar trial, with a similar result. In 1952 the village had constructed a sewage disposal plant that discharged its effluent, along with storm-sewer water, into a branch of the Don River. Because the sewage plant was too small for Richmond Hill’s population and because chlorination was improperly controlled, the formerly clear stream became dark and dirty, its fish and watercress disappeared, its banks became littered with toilet paper and condoms, and the surrounding area began to smell of sewage.

Fed up with the mess being created by the sewage plant, Annie Stephens, who owned land along the Don, filed a lawsuit claiming that Richmond Hill had violated her riparian rights. The judge who heard the case in 1955 agreed that a riparian has the right to the natural flow of a stream, “without sensible alteration in its character or quality,” and need not suffer damages in order to obtain an injunction.(3)

Richmond Hill argued that an injunction against it would harm the public welfare: not only would it deprive its own citizens of the only affordable method of sewage disposal, but it could also adversely affect 95 per cent of the province’s other municipalities with similar systems. The judge responded with a passionate defence of the court’s role in preserving individual rights:

[I]t is not for the judiciary to permit the doctrine of utilitarianism to be used as a make-weight in the scales of justice. . . .

It is the duty of the State (and of statesmen) to seek the greatest good for the greatest number. To this end, all civilized nations have entrusted much individual independence to their Governments. But be it ever remembered that no one is above the law. Neither those who govern our affairs, their appointed advisers, nor those retained to build great works for society’s benefit, may act so as to abrogate the slightest right of the individual, save within the law. It is for Government to protect the general by wise and benevolent enactment. It is for me, or so I think, to interpret the law, determine the rights of the individual and to invoke the remedy required for their enforcement.(4)

The judge therefore concluded that Mrs. Stephens was entitled to a broad injunction; he perpetually restrained Richmond Hill from discharging effluent or storm overflow into the Don and from polluting it in any manner. He then suspended the injunction for one year. Five months later the Court of Appeal affirmed the injunction.

At issue in both the Woodstock and Richmond Hill trials was the question of statutory authority. Normally, polluters can protect themselves with “the defence of statutory authority” if their pollution results inevitably from a government-authorized activity. In licensing an activity, the thinking goes, the government licenses its inevitable results; otherwise, of what use would a licence be?

Both Woodstock and Richmond Hill argued that their permission, under the Public Health Act, to operate sewage treatment plants gave them statutory authority to pollute. The courts rejected these arguments, explaining that regardless of whether the Department of Health had lawfully approved the municipalities’ sewage treatment plans, water pollution was neither an anticipated nor an inevitable result. The municipalities, albeit at great expense, could have installed larger plants or considered land-based alternatives, such as sewage-farms.(5)

It took the provincial government only six months to respond to the court’s conclusion that “the Public Health Act does not authorize a municipality to interfere with riparian rights.”(6) On March 20, 1956, the government introduced An Act to amend The Public Health Act. The act dissolved the injunctions against Woodstock and Richmond Hill. It went even further, deeming any sewage project approved by the Department of Health to be operated by statutory authority. In the words of the Attorney General, “This means that the courts would not have power to grant an injunction to stop the operation of a sewage disposal plant to the inconvenience and detriment of all the inhabitants of the municipality.”(7) The Leader of the Opposition described the bill more bluntly, explaining that it empowered the Department of Health to allow municipalities to pollute Ontario’s rivers: “[O]nce The Department of Health gives approval, each one of these streams – in effect – can have sewage dumped into it.”(8)

A month earlier, the government had introduced An Act to establish the Ontario Water Resources Commission, purportedly to end “the pollution problem” in the province. The act empowered the OWRC to build and operate water supply and sewage disposal systems. The following year, the government authorized the commission to establish operating standards for sewage works and set water quality regulations.(9) As the OWRC assumed responsibility for water quality from the Department of Health, it also acquired the department’s power to authorize water pollution. It correspondingly gained that department’s power to deprive citizens of their riparian rights – which traditionally permitted no sensible alteration in water quality. The OWRC Act so completely superseded riparian rights that there have been few riparian cases reported in the province since.(10)

The debates surrounding both the Public Health Act amendments and the OWRC Act illuminate the government’s approach to pollution. In the mid-1950s, most legislators assumed that population growth and industrial development inevitably led to pollution. As one MPP suggested, “wherever we have progress in industry, we have to contend with polluted water.”(11)

The politicians’ insistence on pollution’s inevitability verged on dishonesty. The Minister of Health admitted that treating most waste was not a technical problem. Others, most obviously the courts, also believed that pollution could – and must – be stopped. The real issue in dispute was not whether pollution could be stopped, but who should pay to stop it. The government argued that taxpayers – rather than polluters – should bear responsibility for clean-up costs. Premier Frost explained his commitment to shouldering the tremendous costs of cleaning up industrial pollution as follows:

I think it is reasonable and common sense to regard the fact that concentrations of industry create obligations. To regard them merely as possibilities for additional revenue is completely the wrong conception. . . . It will take everything Ontario receives from corporation and personal income taxes to pay for the incidence of industry only, and then it will not be sufficient.(12)

As for polluting municipalities, many of them lacked the capital – or the credit to borrow money – to pay for repairing or expanding their sewage systems. And so the provincial government would have to come to their rescue, despite its own tight financial situation. This was not just the governing party’s position; the Leader of the Opposition agreed wholeheartedly:

[T]he municipalities in this province are not in a financial position to carry the full burden that will be imposed upon them by the type of corrective measures which will be proposed to them in the next few years. I believe quite sincerely that the Province of Ontario will have to come to the aid of these municipalities, and they will have to be given grants in order to lessen the financial impact upon the municipal taxpayers for these services.(13)

Ultimately, of course, the two new acts shifted the burden not only to the provincial government but also to the victims of pollution. As is so often the case, the government pursued the public good by depriving victims of their rights. The public interest, the Attorney General explained, “must be paramount in the matter of injunction proceedings.” The people of Woodstock and Richmond Hill “must live and have health and sanitation, no matter what happens. That is the first consideration.”(14) But the courts had not suggested otherwise; they had simply insisted that sanitation not occur at the expense of some citizens.

The politicians worried about a snowball effect if people were to retain – and use – their property rights. Pollution victims had increasingly begun to exercise their common law rights to clean water. One MPP described the situation as follows:

In too many cases, a municipality takes its water from a relatively pure stream, and discharges its sewage below its own water intake but above its neighbour’s intake. Interest in this problem, I find, is much greater than ever before. There is a growing realization on the part of the public that it is a trespass on the rights of their neighbours and of themselves for untreated effluent to be discharged from municipal or industrial sewers into a stream or lake which serves others.(15)

The legislators well knew that many municipalities used their rivers as sewers and could therefore be subject to lawsuits. One MPP remarked on the pollution plaguing the Humber and Don Rivers. Another described the Grand River as “nothing more or less than an open sewer,” thanks in part to the city of Brantford’s spewing into it raw sewage from 50,000 people. Another noted that even Ottawa had no sewage disposal plant. And Toronto’s pollution had become the subject of international protest. The Attorney General suggested that, in all, 65 Ontario municipalities could be affected if people started exercising their common law rights to clean water.

When the Premier suggested that the new Public Health Act “modernizes and straightens out a situation which undoubtedly has been at loose ends for a number of years”(16) he was saying that the legislation transferred responsibility for making decisions about water quality from individuals to government. But he could not say that the government could be trusted with the responsi-bility. Government had in the past proven reluctant to enforce its own laws. For example, the Public Health Act had long prohibited pollution. One section stipulated that “no garbage, excreta, manure, vegetable or animal matter or filth shall be discharged in any of the lakes, rivers, streams or other waters in Ontario.” Another section empowered the Department of Health to issue mandatory orders to establish or improve sewage treatment plants.

Yet the Department of Health had refused to exercise its power to prevent pollution. When it did issue clean-up orders, municipalities simply ignored them, confident that the government would not enforce them. Even the Premier admitted that his government’s orders had been “more disregarded than they have been observed.”(17) He blamed their ineffectiveness on municipalities’ financial problems.

New legislation failed to correct the situation. Almost a year later, during the debates regarding further amendments to the Public Health and OWRC Acts, the Opposition accused the government of failing to enforce its environmental laws. The Minister of Health could recall only one time that the government had pursued a mandatory clean-up order under the former version of the Public Health Act; even that had ended in failure. “As far as I know,” the Minister admitted, “in the annals of our history, there was one order where the court order was carried out and they were fined $100 a day, some 20 or 30 years ago; that is the top fine. It mounted up to $75,000 or so, and the government of the day forgave them or whatever one likes to call it.”(18)

Sadly, the OWRC showed no signs of using its new powers more forcefully than had the Department of Health. Although by 1957 the commission had issued two mandatory clean-up orders – one for Sarnia and one for Trenton – it seemed likely to be as understanding as its predecessors: in neither case had it set a deadline for compliance.(19)

In allowing sewage treatment plants to violate people’s riparian rights, Ontario’s legislators provided a brazen example of government’s desire to promote growth at all costs. But they were by no means the first or last to do so. The Ontario Water Resources Commission Act and the amendments to the Public Health Act joined a growing list of laws designed to encourage industrial development at the expense of the environment and those who depend upon it. Nor have riparians been the only victims of such laws. Those living downstream from sewage treatment plants share a fate with countless others living besides railroads, nuclear power plants and other nuisances. Their rights sacrificed for “the public good,” they find themselves increasingly unable to control the environmental degradation whose costs they must bear.

Notes

1. Ontario Premier Leslie Frost, Legislature of Ontario Debates, Official Report – Daily Edition, March 26, 1956, 1536.

2. Burgess v. The City of Woodstock, [1955] O.R. 814 at 823.

3. Stephens v. The Village of Richmond Hill, [1955] O.R. 806, aff’d [1956] O.R. 88.

4. Ibid. [1955] at 812-3.

5. These comments appeared in the Richmond Hill decision, which the justice in the Woodstock case referred to as a conclusion “by which I am bound and with which I agree” (at 818).

6. Burgess v. Woodstock, op. cit. at 818, citing Stephens v. Richmond Hill, op. cit. The Woodstock decision was issued on September 12, 1955.

7. A. K. Roberts, Debates, op. cit., March 27, 1956, 1575.

The act also substituted compensation (set by the Ontario Municipal Board) for injunctions. See sections 6 (1) (22) and 6 (2) through 6 (4).

8. F. R. Oliver, Debates, op. cit., March 26, 1956, 1537.

9. For a summary of the OWRC’s powers see Anisman, Water Pollution Control in Ontario, 378 ff.

10. Sharpe, Injunctions and Specific Performance, 198.

11. A. Cowling, Debates, op. cit., February 28, 1956, 574.

12. Ibid., 563.

13. Ibid., 565.

14. Debates, op. cit., March 27, 1956, 1578.

15. W. Murdoch, Debates, op. cit., February 12, 1957, 286.

16. L. Frost, Debates, op. cit., March 26, 1956, 1536.