Resource Use Conflicts

• Author: Elaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
• Pages: 189-207

189

CHA PTER 9

RESOURCE USE

CONFLICTS

Elaine L Hughes

A. INTRODUCTION

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.

PUBLIC LANDS A ND RESOURCES LAW IN CA NADA190

B. JUDICIA L R ESOLU TION

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.