Elizabeth Brubaker: Property Rights, Not Legislation, Defend Citizens Against Pollution

by David Bier on November 22, 2011

in Blog

Yesterday’s excerpt from Mark Pennington’s Robust Political Economy showed why it might not be a good idea to trust government with environmental protection. Pennington argued that government has no strong incentive to actually protect the environment, and even if they did, they wouldn’t know the best ways to balance environmental protection with other priorities. Canadian think-tank Environment Probe’s Elizabeth Brubaker’s Property Rights in the Defence of Nature gives many examples of how property rights rather than legislation were used to prevent pollution.

On April 31, 1950, An Act respecting The KVP Company Limitedreceived royal assent. With one stroke of the pen, the Ontario government wiped out an entire community’s property rights, and with them, citizens’ power to protect their river from an upstream polluter. The story of the KVP Act dramatically illustrates the significance of common law rights to clean water and governments’ willingness to override these rights in the name of the “public good.” It is a story about a community’s struggle for a clean river – a struggle against the pulp mill that dumped its wastes into it. The courts tried to protect the river; the government protected the pollution.

…By the 1940s, the abundance of game fish had made the river and its surroundings a popular tourist resort area. The opening of the KVP plant in 1946 changed all that. Repulsive odours, often likened to the stench of rotten cabbage, permeated the river’s 35-mile course to Lake Huron’s north channel; they were even detectable ten miles out into the channel. Farm animals found the water repelling. People living beside the river could no longer draw their drinking water from it. Even boiled water tasted and smelled so bad that it couldn’t be used for cooking or washing.

Sadly, much of KVP’s pollution was unnecessary. Kraft mills elsewhere used alternative methods – settling basins, for example – for effluent disposal. Before the mill had started up, a downstream landowner had urged its manager to pipe the effluent to sand flats nearby. But the manager had refused. “It is,” he had said, “a matter of economics.

Supported by the downstream community and by local wildlife organizations, six men, all of whom owned land along the Spanish River, launched five lawsuits against KVP…High Court Chief Justice McRuer found that the KVP Company had both violated the plaintiffs’ riparian rights and committed a nuisance. He awarded damages totaling $5,600 and issued an injunction prohibiting KVP from altering the character or quality of the water…

The Chief Justice rejected the all too common argument that the social benefits of an activity can justify pollution. KVP had long advanced this argument; as its manager had once asked a downstream landowner, “What are a few fish compared with what we are doing for the country?” But the Chief Justice refused to take into consideration KVP’s economic importance. “In my view,” he explained, “if I were to consider and give effect to an argument based on the defendant’s economic position in the community, or its financial interests, I would in effect be giving to it a veritable power of expropriation of the common law rights of the riparian owners, without compensation.”…

The provincial government rose to the challenge, introducing legislation to crush the property rights of those living downstream from pulp and paper mills. The ludicrously named “Lakes and Rivers Improvement Act” empowered courts to consider the public interest before restraining a polluting mill…Armed with the recent amendments to the Lakes and Rivers Improvement Act, KVP went to the Supreme Court of Canada, where it asked for a new trial on the issue of whether or not an injunction should be granted. On October 4, 1949, the court handed down its ruling: the injunction against the KVP pulp mill would stand. The court denied that the new legislation empowered it to overturn the injunction in this case. It could not, it explained, “give a judgment that was impossible in law at the time of the decision of the Court of Appeal.”

Undeterred, mill management, labour unions, and several municipal associations organized a major lobbying effort. Delegations from Espanola, carrying a petition from 2000 residents, visited political leaders, requesting that they dissolve the injunction against KVP. On February 6, 1950, Premier Frost assured one delegation, “Leave it to me!”…Within a month the government introduced An Act respecting The KVP Company Limited to the sound of applause from the gallery. The act, as promised, would dissolve the injunction.

Although the KVP Act had required the Research Council of Ontario to develop methods to clean up the Spanish River, the pollution continued for many years, driving tourist operators out of business and taking its toll on commercial fishermen, farmers, and the general public. The mill’s successive owners promised to clean up the river, but reneged because of the financial costs of doing so… [and] did not prevent 1983’s large chemical spill, in which 18,000 gallons of highly toxic ‘soap’ flowed from a holding tank into a sewer, and from there into the Spanish River. The spill killed over 120,000 fish.

The KVP story justifies a postscript. After the passage of the KVP Act, Leslie Frost enjoyed another eleven years as Premier. Upon retiring from politics, he became a member of KVP’s board of directors.

(Excerpted from pages 71-79)

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