KVP: Riparian Resurrection in 20th Century Ontario

• Author: Jamie Benidickson
• Pages: 71-92

ﾋﾅ

KVP: Riparian Resurrection in

thCenturyOntario

JamieBenidickson

Introduction

I    Kalamazoo Vegetable and Parchment CompanyK VP

reopenedakraftpapermillthathadbeendormantforseveralyearsthe

condition of the Spanish River deteriorated rapidly. The decline occurred

despite an agreement between the Ontario government and KVP involving

an undertaking not to deposit more refuse than necessary. KVP was soon

dischargingatleastthreeandahalftonsofchemicalladenbrousmaterials

from its sulphate process each day.

Thesituationgaverisetoacelebratedandcontentiouscourtbale in

which riparian property rights clashed with economic development. The

KVP proceedings are of interest i n and of themselves, but the case is equally

noteworthyasamidtwentiethcenturylandmarkonthepathwayleading

fromenvironmentalprotectionasabyproductofprivatelyenforcedcom

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 preceding

KVP as a prelude to the trial decision by James Chalmers McRuer. This

decision and the appeals are discussed in the third 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

inthenalsection

ﾋﾆJamieBenidickson

Rhetoric and Reality Before KVP

“PSupreme Court Justice Thibodeau Rinfret

boldlyproclaimedinadecisionandinitselfconstitutesanuisance

Rinfretsdramaticassertionoeredanencouragingrallyingcryforthecom

monlawcauseofcleanriversButeveninthememorableconictbetween

theGroatfamilyandtheCityofEdmontonwherethisrmlywordeduer

anceappearedapplicationofthepropositionwasnotwithoutdiculty

En route to his broad condemnation of water pollution, Justice Rinfret

had actually declared drains and sewers to be a necessity. Such facilities

were generally constructed, he explained, pursua nt to statutory powers and

resulted in some respects from the exercise of common law rights enjoyed

by local ratepayers, as represented through municipal governments. Though

exercisedforthebenetofallinhabitantssuchcollectiverightswerenot

withoutlimitationsThejudgespecicallyemphasizedthatstatutorypow

ersshouldnotbeconstruedasauthorizationtocreateaprivatenuisance

“unless the statute expressly so states.”

Rinfret’s formulation of the principle governing drainage of riparian

lands seemed unremarkable. The riparian proprietor, he observed, enjoys

a common law right to drain his land into a natural stream, 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

thelaerhowwouldthatlevelbedeterminedWouldthisbeaccomplished

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rhetoricarmpointofreferenceforanabsenceofpollutionwas

not easily discerned. If lines were to be drawn, public health rather than

the natural environment tended to be the focus of concern, and the advent

of chlorination undermined further that rationale for safeguarding water

quality in rivers, lakes and strea ms.

OnthebasisofUSexperienceduringthersthalfofthetwentiethcen

turyitcouldalsobeobservedthatcourtswerepreparedtoaordproperty

holders only limited protection against pollution from municipal sources. To