© 1996 Karen Selick
Don’t Trust Government to Protect Environment
An edited version of this article first appeared in the November, 1996 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Don’t Trust Government to Protect Environment

When it comes to environmental protection, Canadians are like cocaine addicts: they have an insatiable craving for the very thing that made them sick in the first place.  Or maybe I should say they’re like a mistreated puppy:  they still love and trust the master who beat them, and they keep coming back for more.

A recent poll released in response to the Harris government’s proposed environmental deregulation showed that 70 per cent of the public are opposed to weakening environmental rules.  No big surprise--the environment is a motherhood issue these days.  No-one wants polluted air, water or land, denuded forests or extinct animal species.

But the error most people make is to trust the legislature to prevent these tragedies.  What they don’t realize is how big a role the legislature has played historically in causing environmental destruction.

Elizabeth Brubaker, Executive Director of Environment Probe, hopes to change that.  Her book, Property Rights in the Defence of Nature, places the blame for many of our current environmental problems squarely where it belongs:  on legislatures that destroyed our common-law rights to protect our property.

The McKie v. K.V.P. Co. Ltd. case is an excellent example.   In 1946, the Kalamazoo Vegetable Parchment Company re-opened a dormant pulp and paper mill in Espanola, Ontario and began discharging contaminated effluent.  Soon the Spanish River, a popular fishing spot and tourist attraction, began to stink.  The water became undrinkable.  The fish died.

Six downstream landowners sued.  The court granted them damages and an injunction, rejecting the defendant’s argument that the social benefits created by the paper industry outweighed the plaintiffs’ riparian rights.  The argument was irrelevant. The plaintiffs had property rights, and that’s what courts were there to uphold.

Guess what the legislature did.  It passed a law, named in Orwellian style The Lakes and Rivers Improvement Act, permitting courts to refuse an injunction against a polluter where a riparian owner would otherwise have been entitled to one.  The judge was to weigh the benefits and advantages to the locality against the private injury to individual property owners and deny an injunction if it was "proper and expedient" to do so.

Armed with this new law, the KVP Company appealed its injunction.   The Supreme Court of Canada upheld the trial judge, reasoning that he had decided correctly considering the state of the law at the time of his judgment.

So what did the legislature do next?  It passed another law, specifically dissolving the injunction against KVP.  Now the company and its successors were free to pollute.  They did so, merrily, for several decades, repeatedly breaching promises to clean up the river while the government looked the other way and gave them handouts.

Brubaker describes a plethora of similar laws passed over centuries in Canada, the U.S. and Britain.  "In case after case," she says, "government regulations have made it easier—and cheaper—for industries to pollute.  Polluters have long understood that they benefit from regulation." 

This is a familiar phenomenon in many fields.  Laws and regulations passed ostensibly for the purpose of protecting one segment of society end up shanghaied by the very people they were supposed to restrain.  

It is the regulated who have an intense interest in shaping regulations to their benefit—an interest worth spending time and money on.  They consult, they lobby, they power lunch, they cajole, they persuade—until gradually things come around to their liking. The intended beneficiaries of the regulations generally have a diffuse and less compelling interest in preventing this process—an interest not worth much of their time or money.  So the regulations evolve without their participation, stabbing them in the backs as they luxuriate in the smug belief that the law is there protecting them. 

Concerned about loggers denuding the wilderness?  Learn how your government has betrayed you with laws encouraging—nay, requiring--forest clear-cutting.  Having nightmares about another Chernobyl?  Find out how Parliament has increased your risk of glowing in the dark with the Nuclear Liability Act.

What Canada needs is someone with a strong motivation to fight environmental destruction.  In the days before the common law was overruled by statutes, property owners had that motivation.  Brubaker catalogues case after case where property owners, enforcing their rights in the courts, prevented damage to the air, the water and the land.  She suggests that other natural resources such as fish stocks and forests could be rescued too--not by government regulation but by assigning property rights where they never existed before.

Brubaker points out that, contrary to popular perception, it is private property owners, not governments, who take the long-term view of things.  Private planners aim to preserve and increase the value of their resources, for themselves and their great-grandchildren.  Public planners aim to buy votes or quell civil unrest, often at the expense of the environment. 

The former Soviet Union exemplifies the state’s habitual myopia about natural resources.  The Aral Sea, once the world’s fourth largest lake, is now almost a desert.  The Black Sea is so full of chemicals, scientists fear it might literally explode, causing damage worse than Chernobyl.  There’s long-range government planning for you.

Property Rights in the Defence of Nature is available from Environment Probe, 225 Brunswick Avenue, Toronto.

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June 15, 2000