KVP: Riparian Resurrection in 20th Century Ontario

AuthorJamie Benidickson
KVP: Riparian Resurrection in
I     Kalamazoo Vegetable and Parchment CompanyK VP
reopened ak raftpaper mill that had been dormantfor several yearsthe
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
from its sulphate process each day.
Thesituationgaver isetoa celebratedandcontentious courtbale 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
noteworthyas a midtwentiethcentury landmark on the pathwayleading
fromenvi ronmentalprotec tion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 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
inthenalsec tion
Rhetoric and Reality Before KVP
“PSupreme Court Justice Thibodeau Rinfret
Rin fr etsd rama tica sse rti ono ered ane ncou ragi ngra lly ing cry fort hec om
monlawcauseofclea nriversButevenin thememorableconictbetween
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 fort hebe netof all inhabita ntssuch collect iverights were not
withoutlimitations Thejudge specicallyemphasi zedthat statutorypow
ersshouldnotbeconst ruedasauthorizationtoc reateaprivatenuisance
“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
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 foc us of concern, and the advent
of chlorination undermined further that rationale for safeg uarding water
quality in rivers, lakes and strea ms.
Onthebasi sofUSexperience duringthe rsthalf ofthetwentiethcen
turyitcou ldalsobeobser vedthatcourts werepreparedtoaordpropert y
holders only limited protection against pollution from municipal sources. To

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