KVP: Riparian Resurrection in 20th Century Ontario
Author | Jamie Benidickson |
Pages | 71-92 |
ヒナ
KVP: Riparian Resurrection in
thCenturyOntario
JamieBenidickson
Introduction
I Kalamazoo Vegetable and Parchment CompanyK VP
reopened ak raftpaper mill that had been dormantfor several yearsthe
condition of the Spanish River deteriorated rapidly. The decline occur red
despite an agreement between the Ontario government and KVP involving
an undertaking not to deposit more refuse t han necessary. KVP was soon
dischargingatleastthreeandahalftonsofchemicalladenbrousmaterials
from its sulphate process each day.
Thesituationgaver isetoa celebratedandcontentious courtbale in
which riparian property r ights clashed with economic development. The
KVP proceedings are of interest i n and of themselves, but the case is equally
noteworthyas a midtwentiethcentury landmark on the pathwayleading
fromenvi ronmentalprotec tionas a byproductofprivately enforcedcom
mon law property rights to an elaborate regulatory regime intended to safe
guard the public interest in water quality di rectly. For this reason it is helpful
to consider in the second section the state of water quality law precedi ng
KVP as a prelude to the trial decision by James Chalmers McRuer. This
decision and the appeals are disc ussed in the thi rd section together with a
notorious legislative response, the KVP Act. Subsequent developments that
were either inspired by or encouraged by the KVP experience are di scussed
inthenalsec tion
ヒニJamieBenidickson
Rhetoric and Reality Before KVP
“PSupreme Court Justice Thibodeau Rinfret
boldlyproclaimedinadecisionandinitselfconstitutesanuisance
Rin fr etsd rama tica sse rti ono ered ane ncou ragi ngra lly ing cry fort hec om
monlawcauseofclea nriversButevenin thememorableconictbetween
theGroatfamilyandtheCityofEdmontonwherethisrmlywordeduer
anceappearedapplicationofthepropositionwasnotwithoutdiculty
En route to his broad condemnation of water pollution, Justice Rinfret
had actually declared drai ns and sewers to be a necessity. Such facilities
were generally constructed, he explained, pursua nt to statutory powers and
resulted in some respects from t he exercise of common law rights enjoyed
by local ratepayers, as represented through municipal governments. Though
exercised fort hebe netof all inhabita ntssuch collect iverights were not
withoutlimitations Thejudge specicallyemphasi zedthat statutorypow
ersshouldnotbeconst ruedasauthorizationtoc reateaprivatenuisance
“unless the statute expressly so states.”
Rinfret ’s formulation of the principle governing drainage of riparian
lands seemed unremarkable. The riparia n proprietor, he observed, enjoys
a common law right to drain his land into a natural st ream, though such a
right cannot be exercised so as to injure those downstream, because, to re
turn to the boldly stated principle: pollution is always unlawful.
What exactly might constitute pollution was problematic. Would the
judge’s stark proclamation ensure that waterways were preserved in a nat
ural state, or was some level of waste discharge, even accompanied by a
degree of deterioration, to be tolerated in the name of competing principle? If
thelaerhowwouldthatlevelbedeterminedWouldthisbeaccomplished
in relation to conventional practices, social preference, or economic conven
ience, for example, or with regard to such environmental consequences as
the actual condition of the waterways and their in habitants? Notwit hstand
ing the rhetorica rm point of reference for an absence ofpollution was
not easily discerned. If lines were to be drawn, public health rather than
the natural environment tended to be the foc us of concern, and the advent
of chlorination undermined further that rationale for safeg uarding water
quality in rivers, lakes and strea ms.
Onthebasi sofUSexperience duringthe rsthalf ofthetwentiethcen
turyitcou ldalsobeobser vedthatcourts werepreparedtoaordpropert y
holders only limited protection against pollution from municipal sources. To
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