Resource Use Conflicts

AuthorElaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
Elaine L Hughes
As resources grow scarcer, and both domestic and international demand
increases, sust ainable development becomes ever more diff‌icult. The
intensity of resource activity is increasing and spreading into previ-
ously undeveloped areas, often using new technologies of uncert ain
impact. Particularly in a reas of multiple use, the potential for conf‌lict
also escalates.
Conf‌licts about resource development and exploitation can arise
in a huge variety of circumsta nces. There can be conf‌lict between the
federal and provincial government s, as well as conf‌lict between gov-
ernments and resource compan ies to whom they have granted dispos -
itions. There can be conf‌lict between two or more disposition holders
who have been granted rights in the same or adjacent geographic areas.
There can be conf‌lict between disposition holders on Crown lands
and adjacent private landowners. In addition, due to conf‌licting public
policy priorities, there ca n be conf‌lict between government (or their
disposition holders), Aboriginal groups, and the public at large, the lat-
ter often represented by non-governmental organiz ations (NGOs) such
as labou r or environ mental groups.
In general, there are two ty pes of conf‌lict resolution that are avail-
able in natural resources l aw: judicial (decision-making by the courts)
and administrative (decision-making by government staff or boards and
tribunals). Each of these possibilities will be exam ined in turn.
Access to the courts for dispute resolution is available in a wide variety
of circumstances, bot h as a matter of common law and via numerous
statutory mechanisms.
It is almost trite to say th at access to the courts is available whenever
the problem that arises falls into a traditional tort, contract, or prop-
erty law cause of action.1 For example, a private landholder may have a
cause of action for nuisance, negligence, civil strict liability (Rylands v
Fletcher), breach of riparian rights, or trespass if actions of a neighbour
(such as a coal mine, pulp mill, or other development) cause damage to
or interfere with the landholder’s land or its use and occupation. Adja-
cent disposition holders may also h ave these rights.
Smith v Inco Ltd2 provides an example. Inco operated a nickel ref‌in-
ery in Port Colborne, Ontario, for sixty-six yea rs and was sued by a
class of nearby private propert y owners when high levels of nickel par-
ticles were discovered in the soil on t heir properties. The emissions
took place from non-negligent intended operations, and the ref‌inery
was operated in accordance with a ll regulatory rules. A cl aim for tres-
pass to land was d ismissed on the basis that the deposits were indirect,
rather than direct; this was not appealed.
On appeal, the claim for private nuisance failed on the basis that
the plaintiffs could not prove actual, substantial, physical dam age to the
land, and the mere presence of the nickel in t he soil was not enough
to constitute a nuisance when there was no impact on the use of the
land, no proof of health risks, and no harm apart from unproved fears
about the health consequences of the contamination, which might im-
pact property value. In addition, the licensed operation of a ref‌inery
in a heavily industr ialized area did not constitute a non-natural use
of Inco’s property, so strict liability (Rylan ds) could not be established;
nothing exceptionally dangerous nor extraordinary had taken place.
Statutes can have an impact on the availability of common law tort,
property, and contract claims. For example, large industr ial agricul-
tural operations, such as hog farms, can generate obnoxious odours,
noise, and water pollution. The potential for private nuisance claim s by
adjacent farmers and townsfolk would seem obvious. However, in vir-
1 See, generally, Paul Muldoon et al, An Int roduction to Environmental Law and
Policy in Canad a (Toronto: Emond Montgomery, 2009) ch 13; Elaine Hughes et
al, Environmental L aw and Policy, 3d ed (Toronto: Emond Montgomery, 2003)
ch 3; Meinhard Doel le & Chris Tollefson, Environmental Law, 2d ed (Toronto:
Carswell, 2013) ch 2.
2 2011 ONCA 628, leave to appeal to SCC refuse d, [2011] SCCA No 539.

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