Common-!

WHILE reporting on
the trial of Wiebo
Ludwig and Richard
Boostra for the
National Post, Christie
Blatchford managed
unintentionally to artic-
ulate the real issue in
the subterfuge that
runs as deep as the
many hydrocarbon-
emitting wells in the
northwestern part of
Alberta.

The Alberta Energy
Company (AEC) executives
were so desperate to stop the
spate of sabotage against oil-
well sites in the Hythe region
in 1997, recounts Blatchford,
that “they were prepared to
take the distasteful step of
buying out Mr. Ludwig (the
suspect} and the arguably
improper one of bailing out
the cash strapped RCMP.”

_ Here's the nub of the
issue: compensating a proper-
ty owner, albeit half-heartedly,

rracilhvas x

llana
ercer

fair

comment

for the trespass and nuisance
of drilling a hydrogen sul-
phide leak-prone gas well on
the periphery of the man's
Property is“distasteful™ to Mts.
Blatchford.

Conversely, the collusion
between an arm of the State,
represented by the RCMP,
and the industry ro investi-
gate, perhaps even manufac-
ture, evidence against Mr.
Ludwig, is only
“arguably"improper.

Indeed, this would scem
to be a case where a citizen
ought to be able co make use
of the common law of ues-
pass and nuisance to protect
himself against polluters,

these laws naving been so
deployed by individuals for
centuries.

From the inherited
English common iaw in
Canada we get that “it isa
trespass to place anything
upon someone else's property,
or cause anything to be
placed there by wind, water
or other means.”

As did it seem pertectly
clear to the 18th century
jurist Sir William Blackstone
that the corruption of air
qualified as a nuisance and
should be carried out in
remote places, so as Not to
deprive anyone of the use and
benetit of his property.

Somewhere in the history
of the jurisprudence there
occurred a shift whereby it
became onerous for the indi-
viduat to achieve redress for
transgressions against proper-
ty. An account of the erosion
of these rights can be found
in Properey Rights in the
Defence of Nature by
Ehzabeth Brubaker, an
Environment Probe

Pe nem eet en NEAT APN i AAR NENT A CE BE ARN Het Mt ee NN tes gers printed

A morass of ‘moronic mutterings’

no one is holding a gun to your head and

Dear Editor:

Please allow me space in your paper to
comment on the (March 15) letter from Matt
Warwick regarding his “world of woes.”

First Mr. Warwick, my advice is that you
should seek help. There are many very quali-
fied analysts, therapists, psychologists or psy-
chiatrists only too willing to assist you.

Now let us fast forward

morass of moronic mutterings to your penul-
timate paragraph If you would burt remove

your metap

by Nakamichi.

_Powered

orical blinkers you will see that

fortitude.
through the

Ron Davie

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thar due to your parents, their parents and
indeed those before them you have the free-
dom to cater to your “desperate desire” and
“lack of respect™ Xi

However, [ would conjecture that behimd the
facade of bravado there is a lack of intestinal

by packing and leaving.

Finally your ultimate promise. To use the
vernacular, I bet you do not have the guts.

North Vancouver

Less is more. Enhance your enjoyment of music and your lifestyle.

ee s_

a Nakamichi

W principles

researcher.

Accordingly, nuisance,
trespass and riparian coramon
Jaw had functioned for cen-
turies as a means at the dis-
posal of the individual to pro-
tect the environment by
asserting property rights.

Enter the spurious concept
of the public good and with it
government-authorized activi-
ty. Because industry was seen
as promoting progress, it was
deemed by the legislature to
be acting in the public inter-
est, and was duly conferred
with the statutory authonty
to pollute.

In fact, government has
been consistent in stripping
the common law of its power
and usurping it with statutes,
acts and regulations attached
to which is a lower environ-
mental standard than the
common law would impel as
well as a limited lability.

This crosion began as early
as 1792 in England.

The courts generally put
up a valiant battle against the

trampling of “minority rights”

by government-authorized
industry. Inspiring examples
inchide the 19th century
judge who claimed that for
the court there was nothing
more importanr than “...
keeping public bodies within
their nights.”

Or the Ontario Chief
Jastice who rejected in 1952

Friday, March 24, 2000 — North Shore News - 7

eing erodet

the notion that a polluter
who predates the complainant
had a night to pollute.

Wrote the justice:
“Whether the man went to
the nuisance or the nuisance
came to the man, the rights
are the same.”

But as parliaments under-
took by legislative fiat to
undermine individual rights
to property, so, in time, did
judicial philosophical under-
pinnings shift to ceflect a
commitment to the hollow
concept of the public good.

Indeed “some of the most
dramatic illustration of statu-
tory authority,” writes
Brubaker, “can be found in
the British, American, and
Canadian laws protecting rail-
way companies from common
law liability.”

Soon after steam locomo-
tives were authorized by
British Parliament in 1832,
nuisance lawsuits to stop
noise, vibration, smoke and
fire were haited.

“Partiament, in expressly
authorizing the use of the
locomotives, had overridden
the common law aad its pro-
tection of individual rights.”

Even financial compensa-
tion could no longer be guar-
anteed. Acts like the British
Land and Railway Clauses
Consolidation Acts of 1845,
or the Canadian Public
Health, Nuclear Liability,

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Lakes and Rivers
Improvement Acts, ail “conter
statutory authority on 4
whole class of polluters, * himit
liabilicy, prevent the issuance
of injunctions and allow
industrial discharge of poltu-
tants (where riparian common
law, for instance, allowed “no
alteration of water quality”).

The Alberta Energy
Company can drill on the
edge of a man’s property
because the common law has
been defanged.

it must, however, go
down sour that in the case of
Mr. Ludwig it's been more
difficult to get the jitde guy
to coll over.

—anome@arteanadanet

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