Resource Use Conflicts

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

189

CHAPTER 9

RESOURCE USE

CONFLICTS

Elaine L Hughes

A. INTRODUCTION

As resources grow scarcer, and both domestic and international demand

increases, sustainable development becomes ever more diff‌icult. The

intensity of resource activity is increasing and spreading into previ-

ously undeveloped areas, often using new technologies of uncertain

impact. Particularly in areas of multiple use, the potential for conf‌lict

also escalates.

Conf‌licts about resource development and exploitation can arise

in a huge variety of circumstances. There can be conf‌lict between the

federal and provincial governments, as well as conf‌lict between gov-

ernments and resource companies 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 can 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 labour or environmental groups.

In general, there are two types of conf‌lict resolution that are avail-

able in natural resources law: judicial (decision-making by the courts)

and administrative (decision-making by government staff or boards and

tribunals). Each of these possibilities will be examined in turn.

PUBLIC LANDS AND RESOURCES LAW IN CA NADA190

B. JUDICIAL RESOLUTION

Access to the courts for dispute resolution is available in a wide variety

of circumstances, both 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 have these rights.

Smith v Inco Ltd2 provides an example. Inco operated a nickel ref‌in-

ery in Port Colborne, Ontario, for sixty-six years and was sued by a

class of nearby private property owners when high levels of nickel par-

ticles were discovered in the soil on their properties. The emissions

took place from non-negligent intended operations, and the ref‌inery

was operated in accordance with all regulatory rules. A claim for tres-

pass to land was dismissed 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 damage to the

land, and the mere presence of the nickel in the 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 industrialized area did not constitute a non-natural use

of Inco’s property, so strict liability (Rylands) 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 industrial 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.