ENVIRONMENTAL PROTECTION AND THE ABJECT FAILURES OF THE COMMON LAW.

• Author: Ziff, Bruce
• Position: Ivan C. Rand Memorial Lecture

1. Introduction

   I am honoured to be presenting the Ivan C. Rand Memorial lecture on the twenty-fifth anniversary of this important public event in the UNB law school calendar.

   In preparing this lecture, I sought to find intersections between Justice Rand's illustrious career and the present occasion--a talk about environmental law delivered by a visitor from Alberta. As to the latter, it is likely well known that Ivan Cleveland Rand began his professional life as a lawyer in Medicine Hat, Alberta. It might seem like a curious first destination for a freshly minted Harvard law grad from New Brunswick, but at the time, circa 1913, Medicine Hat was a town with a promising future. Natural gas had been discovered nearby, and there was plenty of legal work available. All in all, it was predicted that Medicine Hat, situated close to the American border, was destined to become a leading urban centre in the recently created province of Alberta. That was not to be. Among other things, the onset of WW1 had a chilling effect of the region's growth. By 1920, Rand decided to return home, where he set up practice in partnership with Clifford Robinson, a seasoned lawyer.

   William Kaplan's biography of Rand's time ably chronicles his time in Medicine Hat. (1) But Kaplan does not mention Rand's other connection with Alberta. Shortly after hanging his shingle in Moncton, Rand received a telegram from Henry Marshall Tory, the founding president of the University of Alberta. Tory's message concerned the position of dean of the faculty of law at the university. "Would you consider" Tory wrote in the clipped style of telegrams of the day, "appointment as Dean Law Faculty University Alberta." The starting salary was stated to be $4,400. Tory was impressed by Rand's Harvard pedigree. In the last line of the telegram, he advised that "Pound recommends you strongly." (2) Pound was none other than the famous jurist, Roscoe Pound, then the dean of the Harvard Law School. Rand declined, though the extant record does not reveal much else.

   The second point of intersection concerns Justice Rand's connection to Supreme Court of Canada jurisprudence on environmental issues. Rand served on the Supreme Court from 1943 to 1959. During that time, he presided in 697 reported decisions. If those cases are cross-referenced in the Westlaw database under the heading "Environmental Law", only one case is cited. This was a unanimous decision of Court (discussed below (3)), penned not by Rand, but rather by Justice Patrick Kirwin.

   This single reference may be misleading. During Ivan Rand's tenure on the Supreme Court of Canada, the category of environmental law was not in common usage; it is a cognate legal category of more recent origin. Environmental law in Canada as that term is now understood emerges in the late 1960s, and early 1970s. As Jamie Benedickson noted in the preface of his text on Canadian environmental law, "[w]hen I graduated from law school in 1972, nowhere in the curriculum could one find a course called Environmental Law." (4)

   As the 1960s were drawing to a close, a number of public interest advocacy groups were created, including preeminently, Pollution Probe (1969) and Greenpeace, which was founded in Vancouver in 1971. In that same year, the Canadian Environmental Law Association was formed. David Estrin, a recent graduate of the Faculty of Law at the University of Alberta, was the driving force behind its creation. The following year, Estrin pecked out the first edition of the Canadian Environmental Newsletter on an IBM electric typewriter. A few years later it became the Environmental Law Reports. In 1976, Estrin opened the first law office in Canada devoted exclusively to environmental law matters. He was, in essence, the founding father of Canadian environmental law.

   The relevant 'law' governing the environment was viewed fundamentally as being statute-based. A large array of statutory instruments was introduced in and around the same period. (5) This alone signals a central theme of my talk: the common law offered very little potent legal protection for the natural and built environment. Legislation filled a huge chasm.

   A brief exercise in discourse analysis highlights this point. Benidickson's work, referred to above, is a student textbook of more than 400 pages. He devotes 14 pages to what he sees as the pertinent common law causes of action. (6) A similar scope of coverage can be found in the published casebooks. (7) Likewise, a detailed practitioner's reference book devotes virtually no space to the common law. (8) The same is true of the leading resource on Brownfields remediation. (9)

   Benedickson's analysis is somewhat typical. The causes of action discussed are: nuisance, negligence, strict liability under the rule in Rylands v Fletcher, breach of statutory duty, trespass, and riparian rights. (10) The author identifies the shortcomings of these doctrines. In short, except for public nuisance, these causes of action rely on the willingness of private actors to pursue legal recourse; there are issues of standing that can arise; the costs of litigation can be prohibitive; and plaintiffs may need to contend with formidable issues of proof, especially where scientific questions arise. Limitation periods can also pose a barrier if latent harms take years to gestate into discernable damage. And in the end, the available remedies may be inadequate. In particular, seeking an injunction is pointless in instances in which irreparable environmental destruction has already occurred. (11)

   These concerns are cogently presented. Still, I am surprised by the confined ambit of the analysis. With one exception (riparian rights), the common law is viewed through the doctrinal lens of the law of torts. However, there is far more to the interplay between environmental protection and the common law than just this. To be more precise, I am thinking of core principles of property law. This omission is ironic, since a good deal of the environment is property. Correlatively, most of the law of property has direct implications for the environment. Accordingly, the remainder of this presentation is devoted to some significant ways in which the common law of property has proven inadequate to the challenge of environmental stewardship. As I hope will be apparent, this is not merely an exercise in semantics and pedantic legal categorization. A large number of ownership principles come into focus when the lens is property law not tort, broadening the analysis in critical ways.

2. Property Law and the Environment

   (a) Fundamental principles

   Private property has been justified on the basis of a range of values. (12) One claim, of major significance in the framing of Canadian property law, is that private property enhances material well-being. It is trite to say that private property is the mainstay of all market economies. Moreover, this has implications that extend beyond economic efficiency. It has been argued that the financial incentives connected to property rights will typically prompt owners to use their holdings in a way that reduces the imprudent destruction of land and goods. To put the matter starkly, it can be argued that the most important concept in the law of...