We must rely upon [the common law] to fill the gaps in legislation, to develop the principles introduced by legislation, and to interpret them.[1]<\/a><\/p>\n The time should be long past when statute law and common law were seen as occupying different planes. Decision makers, including planning authorities and the Court on judicial review, must consider what construction of the legislation and what development of the common law will avoid anomaly and provide a sensible result.[2]<\/a><\/p>\n Environmental protection and the management of natural resources is today dominated by regulation and administrative procedures. In most jurisdictions, legislation covers enforcement and penalty regimes for environmental damage (including marine and atmospheric pollution, and the allocation of rights in land and water) and the management of natural resources (including minerals, fisheries, and forestry).<\/p>\n Neo-liberal economic policies have encouraged increased private access to, or control of, state-owned natural resources, either by direct allocation or through \u201cpublic-private\u201d partnerships. Mining and energy development, water allocation, the provision of infrastructure services, and other industrial development are examples of the growing dominance of the private sector in such activities. The rights and obligations of those agencies and corporations, particularly with respect to resource use and the management of environmental externalities, are often closely defined in environmental planning and natural resource regulation, and sometimes override common law rights and obligations. The agencies charged with regulating matters such as the depletion rates of resources and conditions for access and protection of the environment often struggle to deliver due to a lack of financial, legal, or technical resources, conflicting economic priorities, inefficiencies, or a combination of these issues. Nevertheless, a strong body of underlying common law rules and procedures remains relevant to environmental protection, resource use, and the control of administrative action. These rules and principles are sometimes expressly preserved by the regulatory regime,[3]<\/a> and at other times are overridden or partially displaced by it.<\/p>\n Where not expressly excluded or implicitly overridden by legislation, common law rules and principles\u2014particularly in the areas of property law and property-related torts\u2014remain available to individuals or interest groups, and indeed government, as alternate or supplementary mechanisms to enforce rights and obligations.[4]<\/a> Such principles can guide the implementation and interpretation of regulation, fill gaps in regulatory regimes, and provide alternative avenues and new innovations to protect environmental values and incentivize sustainable development of natural resources.<\/p>\n This article has two main themes. First, it argues that property law concepts and property-related torts have great potential for addressing environmental challenges. Areas of application include protecting private and public land from ecological degradation, encouraging more sustainable use of natural resources on and under land, and addressing climate-change matters. Second, the article makes the case that property ownership rights are dynamic under the common law and may be reconceptualized to incorporate an inherent obligation to use land and natural resources in an ecologically-sustainable way for the benefit of present and future generations.<\/p>\n In Part\u00a0I, the article will review interests, rights and obligations relevant to environmental and natural resource issues, and the challenges of expressing them through the mechanisms of the common law. In Part\u00a0II, the interrelationship of property law, contract law, and the law of torts will be briefly analyzed. This discussion will survey property-related torts that support and assist in the enforcement of property rights. Part\u00a0III will discuss the current utility and future potential of existing property law concepts for protecting environmental values and applying sustainability principles to natural-resource development. Finally, Part\u00a0IV will make the case for an inherent duty arising as an incident of ownership to use private land and natural resources in an ecologically-sustainable way for the benefit of present and future generations. The article will draw on cases and developments in a number of similar common law jurisdictions, including Canada, the United Kingdom, the United States, Australia, and New Zealand.<\/p>\n There are many obstacles to utilizing the common law to protect private property and public lands against environmental damage and the unsustainable exploitation of resources. David Boyd has summarized these barriers as including \u201ca historical bias toward private rather than public interests, the absence of constitutional environmental rights, a lack of access to the courts, the high costs of litigation, judicial deference to government decision makers, and low penalties for environmental offences.\u201d [5]<\/a> To engage common law remedies, there must be legally-recognized interests that have been, or will be, affected by the actions of others (Part\u00a0I-A), and these issues must be justiciable in a court of law (Part\u00a0I-B). As Douglas Fisher notes,[F]or there to be a remedy to protect a right, three requirements must always be satisfied: there must be a justiciable issue; there must be a person with the capacity to seek a remedy; and there must be a court with the jurisdiction to provide a remedy.\u201d[6]<\/a> A further issue that must be addressed is the question of pre-emption or displacement; that is, whether statutory provisions have implicitly or explicitly supplanted recourse to the common law in any particular case (Part\u00a0I-C). Once a common law right or duty is established, and has not been displaced or pre-empted by legislation, then the enforcement of such rights and duties raises practical questions of standing to sue, evidence, and financial barriers that may limit access to the legal process (Part\u00a0I-D). Class actions provide an effective mechanism to ameliorate costs barriers provided that certification and other procedural hurdles can be cleared (Part I-E).<\/p>\n Environmental conflict reflects the interests, motivations, and capacities of individuals and interest groups asserting rights or enforcing others\u2019 obligations. Individual and public interests generally reflect \u201cthe institutional concerns of the segments of society,\u201d[7]<\/a> and each segment has its own set of values and ideological orientations. Individuals and groups within those segments may organize to promote common interests and become interest groups<\/em>. Public policy is often \u201cthe result of the success gained by these groups.\u201d[8]<\/a><\/p>\n More powerful interest groups often have increased control over the direction of public policy, and therefore dominant segments of society often have a disproportionate influence on government regulation. In the context of environmental damage and natural resource depletion, as Earl Finbar Murphy notes, this dynamic has resulted in \u201cthe profits of exploitation accru[ing] to those most assertive of demand, while the resource held in common title is steadily reduced in its stock or in its renewability by these demands.\u201d[9]<\/a> In recent years, \u201ccounter-exploitative\u201d and \u201cpro-environmental\u201d interests have become more vocal, and have had a greater influence on government policy and regulation in relation to environmental and natural resource management.[10]<\/a><\/p>\n Social utilitarianism suggests that legal rules and institutions are primarily devoted to achieving the common interests of society, even at the expense of individual interests.[11]<\/a> This democratic ideal should then be reflected in government activity and legislation. It is not, however, quite that simple. There are fundamental individual rights that are regarded in many societies as inalienable, even if their protection results in arguably less efficiency in the governmental process and the rule of law. Doctrines such as habeas corpus<\/em>, the requirement of proof beyond reasonable doubt of both actus reus <\/em>and mens rea<\/em> for criminal liability, the privilege against self-incrimination, freedom of speech, and protection of minorities against discrimination reflect these rights. Constitutional rights or conventions generally protect such individual interests, and their collective recognition and protection has historically been regarded as a fundamental element of democratic societies based on capitalism.[12]<\/a><\/p>\n Narrower individual interests are often seen as prevailing over the common interests of society, although what those common interests will often be contested.[13]<\/a> Public choice theory,[14]<\/a> although far from a unified doctrine,[15]<\/a> can make some contribution in explaining the collective action dynamic whereby small well-organized groups with a specific agenda, a strong community of interest, and media support can exert a disproportionally high influence on policy. Interest groups may represent individual, community, corporate, or public concerns, or a combination of the above.[16]<\/a> Such groups may exert powerful political influence through lobbying or partisan political support, or both, gained through strategic campaign donations. Analyzing early environmental litigation in the United States, Lettie Wenner identified three types of interest groups:<\/p>\n business litigants, whose primary motivation is profit; government agencies, who act from a desire to maintain their political leaders in power and therefore need to appeal to public opinion or their perception of it; and environmental interest groups, who define their role as defending interests unrepresented by either the politically or economically powerful.[17]<\/a><\/p>\n While there is some truth in this assessment, such stereotypes are not always borne out in reality. For example, some business interest groups may pursue political objectives, and even environmental agendas that appear to be counterintuitive to their economic and corporate interests.[18]<\/a> Some environmental interest groups may also have conflicting interests with other groups, as in the case of wind energy development.[19]<\/a><\/p>\n Individuals and interest groups may or may not be financially well-resourced, with access to professional legal and technical advice. Provided those hurdles can be cleared, ultimately, the success or failure of environmental litigation will depend upon the availability of legally-recognized rights and obligations, the justiciability of the arguments brought to bear, the extent to which relevant common law rights of action have been pre-empted or displaced by legislation, and practical matters such as locus standi<\/em> and meeting evidential burdens.<\/p>\n Private common law is largely concerned with the enforcement of personal or property rights, or the obligations of others, through the courts. It is therefore useful to consider what is meant by rights<\/em>, duties<\/em>, and justiciability<\/em> in the context of environmental litigation.<\/p>\n Life, liberty, and private property have long been recognized as the fundamental rights of individuals under the common law.[20]<\/sup><\/a> Personal security is protected by actions such as trespass to the person, false imprisonment, negligence, and defamation.[21]<\/sup><\/a> The first of these remedies has particular relevance to environmental law; for example, where toxic chemicals or other substances cause personal injury. Personal liberty is protected in constitutional provisions or core legislative measures in most jurisdictions.[22]<\/a> While less directly relevant to environmental law, many freedoms and liberties are contingent upon the protection of personal security and private property. The latter has remained a cornerstone of the common law, as reflected in extensive principles and regulatory provisions that recognize and protect such rights. Nevertheless, property rights are not absolute and are constrained by others\u2019 individual rights, including the right to bodily integrity and the protection of one\u2019s own property: an otherwise lawful act may become unlawful if it threatens the health or safety of individuals or the public at large (e.g., toxic torts), or where it may damage property (e.g., private nuisance).[23]<\/sup><\/a> The rights and obligations tied to life, liberty, and property\u2014and particularly those pertaining to personal security and protection of property interests\u2014have endured to the present and are manifested in both the common law and in legislation.<\/p>\n To be amenable to determination in a court, rights and obligations must also be justiciable, in the sense of being actionable, capable of being litigated, and enforceable.[24]<\/a> The comments of the United States Supreme Court in Flast <\/em>v<\/em>.<\/em> Cohen <\/em>are apposite:<\/p>\n Justiciability is itself a concept of uncertain meaning and scope. … [N]o justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action. Yet it remains true that \u201c[j]usticiability is … not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures.\u201d[25]<\/a><\/p>\n There are two main dimensions to justiciability in the context of environmental litigation. The first is whether there exists a legally enforceable<\/em> right, duty, or obligation (as opposed to a purely moral or ideological concern). Complications can arise where a court or tribunal has to deal with mixed issues of law and fact, as such distinctions are not always clear-cut.[26]<\/a> A merit-based determination may not be justiciable beyond the initial hearing body or specialist appellate tribunal, unless a procedural error or other matter amenable to administrative or judicial review is argued.[27]<\/a><\/p>\n A second aspect of justiciability concerns the appropriateness of dealing with questions of public policy in a court of law.[28]<\/a> Modern environmental legislation often contains statutory declarations of objectives or purposes that are required to be observed or applied by those administering or performing functions under such legislation.[29]<\/a> These objectives and purposes may relate to the intent of the statutes themselves, to the duties and powers of statutory bodies set up or filling a statutory role under such legislation, or to the exercise of powers or performance of duties by government agencies or ministers. While such measures are part of the law, as they are included in the statutes, courts are uncomfortable being involved in broader public policy issues.[30]<\/a><\/p>\n In environmental and natural resource cases where the exercise of powers, functions, and discretion is challenged through judicial review, issues of merit are often inextricably intertwined with procedural or other substantive rights, including fairness and natural justice.[31]<\/a><\/p>\n A matter related to justiciability is the question of whether common law causes of action and remedies have been supplanted by statutory measures and administrative procedures. Even where there is a saving provision in a statutory measure, a court may find that a common law cause of action or remedy is no longer available due to overriding public policy reasons.<\/p>\n In the United States, there has been significant judicial consideration of this question, particularly in respect of the complex judicial matrix between the federal and state jurisdictions.[32]<\/a> Many of the main federal environmental statutes have express savings provisions that appear to preserve common law actions.[33]<\/a> Nonetheless, plaintiffs seeking relief through the federal common law of nuisance have had little success, although courts have preserved actions based on state common law.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Milwaukee v. Illinois<\/em>[34]<\/a> (Milwaukee<\/em>) was a federal nuisance claim by the state of Illinois against several Wisconsin cities and sewage commissions for pollution of Lake Michigan. The United States Supreme Court held that such causes of action were generally displaced by the federal legislative regime under the Clean Water Act<\/em>.[35]<\/a> The Court also held, however, that federal regulation did not necessarily pre-empt state common law unless this was clearly intended by Congress.[36]<\/a> A number of cases since Milwaukee <\/em>have confirmed that federal environmental legislation does not necessarily prevent state common law nuisance claims with respect to water pollution. In International Paper Co. v. Ouellette<\/em>[37]<\/a>, landowners in Vermont sued International Paper Co. for pollution to Lake Champlain from the company\u2019s pulp and paper mill situated in New York. The Supreme Court held that, while the plaintiffs could not sue under Vermont common law, they could bring the action under the law of New York.[38]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Milwaukee <\/em>was applied to atmospheric pollution in American Electric Power Co., Inc. v. Connecticut<\/em>[39]<\/a> (American Electric Power<\/em>). In that case, several states and the City of New York sued a number of electric power companies for atmospheric pollution caused by the use of fossil fuels. The plaintiffs claimed that the emissions violated both the federal common law of interstate nuisance and state nuisance law. The Supreme Court held that the regulatory regime established by the Clean Air Act<\/em>[40]<\/a> and the power of the Environmental Protection Agency to regulate greenhouse gas emissions spoke directly to the issue of emissions from power plants, and thus displaced the federal common law of nuisance.[41]<\/a> The Court left the matter of liability under state nuisance law open for further consideration on demand.[42]<\/a> A year later, in Native Village of Kivalina v. Exxonmobil Corp<\/em>, the United States Court of Appeals for the Ninth Circuit applied American Electric Power <\/em>to deny a common law damages claim for atmospheric emissions on the basis that the federal Clean Air Act<\/em> covered the field.[43]<\/a> This case appears to have expanded the displacement doctrine to cover financial remedies as well as injunctive relief.[44]<\/a><\/p>\n Common law avenues of redress have also been disallowed where such actions would impede or undermine broader political responsibilities that are properly the province of government and reflected in legislative measures. In re Deepwater Horizon<\/em>[45]<\/a> concerned actions by the State of Louisiana, local authorities, and other plaintiffs for pollution damage caused by the Deepwater Horizon blowout in the Gulf of Mexico in 2010. The United States Court of Appeals for the Fifth Circuit held that any state common law claims for damage to fisheries, wildlife, and habitat were pre-empted by the federal Clean Water Act <\/em>and Outer Continental Shelf Lands Act<\/em>[46]<\/a> regimes.[47]<\/a> In its analysis, the Court noted that application of state law to petroleum operations under the outer continental shelf may compromise the efficient exploitation of federally-owned resources.[48]<\/a> This analysis reflects the approach in the United States that, where a case presents a political question, the courts have often declined jurisdiction to hear the matter due to the separation of powers doctrine.[49]<\/a><\/p>\n In Canada, the matter of pre-emption is dealt with in the Constitution<\/em> with subsection\u00a052(1), which provides that any law that is inconsistent with the Constitution<\/em> is, to the extent of the inconsistency, of no force and effect.[50]<\/a> This provision does not directly resolve the question of provincial laws in conflict with federal laws, although the doctrine of paramountcy gives primacy to federal laws in cases of conflict.[51]<\/a> On the issue of displacement of common law causes of action by legislation, the Constitution<\/em> is of little assistance. It simply leaves matters concerning management of natural resources largely in the hands of the provinces and territories (unless there are extraterritorial effects).[52]<\/a><\/p>\n The question of pre-emption was briefly dealt with by the Supreme Court in Hollick v. Toronto (City)<\/em>[53]<\/a> (Hollick<\/em>), a class action brought by some 30,000 people for injunctive relief and damages for the noise and odour effects of the City\u2019s Keele Valley landfill. The Court declined to certify the class action due to the diversity and complexity of individual claims. While considering the behaviour modification element for justification of class actions, however, it noted that:<\/p>\n Ontario\u2019s environmental legislation provides other avenues by which the complainant here could ensure that the respondent takes full account of the costs of its actions. While the existence of such legislation certainly does not foreclose the possibility of environmental class actions, it does go some way toward addressing legitimate concerns about behaviour modification.[54]<\/a><\/p>\n In the subsequent case of Canadian Forest Products v.\u00a0British Columbia<\/em> (Canadian Forest Products<\/em>), the Supreme Court rejected the view that the Crown could only sue under statutory remedies for damage to public lands, holding that the common law of torts should not be neglected in environmental litigation: \u201c[T]here is no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case on account of public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts such as trespass.\u201d[55]<\/a><\/p>\n On the political questions doctrine, Canada generally takes a different approach than the United States, with cases such as Operation Dismantle v. The Queen <\/em>expressly rejecting such a fetter on their judicial jurisdiction.[56]<\/a><\/p>\n New Zealand is not a federal jurisdiction, and is thus not subject to the complications of multiple federal-state political jurisdictions and legal regimes. Nevertheless, the issue of pre-emption of the common law by statutory provisions does arise with a number of environmental statutes containing savings provisions, while others are silent on the question.<\/p>\n The Resource Management Act<\/em> 1991<\/em> (RMA<\/em>) is New Zealand\u2019s core environmental and natural resource management statute. It provides a policy-making, planning, and decision-making framework for the use of land, air, and water guided by the core statutory purpose of \u201csustainable management of natural and physical resources.\u201d[57]<\/a><\/p>\n Section 23(1) of the RMA<\/em> states that compliance with its provisions does not remove the need to comply with other acts or relevant principles of the common law. This saving provision was tested in Varnier v. Vector Energy Ltd.<\/em>,[58]<\/a> where the plaintiffs brought a claim for personal injury and property damage caused by electromagnetic emissions from overhead electric transmission lines. They relied upon the common law causes of action of nuisance, trespass, negligence, and the Rylands v. Fletcher<\/em>[59]<\/sup><\/a> rule. Vector Energy argued that the activity was conducted pursuant to consent issued under the RMA<\/em>, and as full consideration had already been given to those matters in the consent hearings they should not be litigated another time. It further argued that a planning authority may authorize a nuisance, and that the defence of statutory authority applied. Upon rejecting these arguments, Judge\u00a0Salmon confirmed that, notwithstanding statutory authorization, subsection\u00a023(1) of the RMA<\/em> preserved the right, if available, to claim in trespass, negligence, nuisance, or under the Rylands v. Fletcher<\/em> rule.[60]<\/sup><\/a><\/p>\n In the earlier case of Ports of Auckland Ltd v. Auckland City Council<\/em>, Justice Baragwanath made the following comments regarding the interplay between planning regulation and the common law:<\/p>\n Counsel have in the past tended to treat the common law and statutory planning law as independent of one another, despite the obvious relevance of parliamentary policy as expressed in statute to the development of the common law. …<\/p>\n …<\/p>\n The time should be long past when statute law and common law were seen as occupying different planes. Decision makers, including planning authorities and the Court on judicial review, must consider what construction of the legislation and what development of the common law will avoid anomaly and provide a sensible result.[61]<\/sup><\/a><\/p>\n These cases may be contrasted with the approach in Falkner v. Gisborne District Council<\/em>, where coastal landowners claimed the ancient common law right to protect one\u2019s land from the inroads of the sea, and asserted that a similar duty continued to bind the Crown. Justice Barker held that the coastal planning and resource management regime under the RMA<\/em> created a statutory code that overrode pre-existing common law property rights in this case.[62]<\/a> The apparent conflict with subsection\u00a023(1) of the RMA<\/em> can perhaps be countered by the argument that the preservation of relevant common law principles in that section cannot stand against the broader public policy objectives of the legislation, which is to provide a comprehensive and integrated coastal management regime managed by statutory authorities. These objectives would be undermined if local communities were able to take planning matters into their own hands.<\/p>\n As illustrated above, a variety of approaches are used in different jurisdictions to address the question of pre-emption or displacement of the common law by statutory measures. Nevertheless, some general observations can be made. Firstly, environmental statutes often include savings provisions for common law rights and actions. Secondly, where such provisions are not included, the courts will examine the mischief and purpose of the legislation to see whether its objectives can be met while preserving common law rights of action. Thirdly, even where there are savings provisions, they will be interpreted and read in the context of the mischief and purpose of the legislation, and may be overridden if there are strong public policy reasons against maintaining such rights. Finally, the courts in some jurisdictions have demonstrated a preference for interpreting statutory provisions in a way that is complementary to existing common law rights and obligations and produces a sensible and equitable outcome where possible.<\/p>\n Standing is distinct from justiciability, as it concerns the plaintiff\u2019s right to bring an action rather than the amenability to the judicial process of the issues to be tried.[63]<\/a> In early environmental cases, the courts regarded standing as a condition-precedent to hearing arguments on the issues. If a party lacked some proprietary or special interest, the courts generally refused standing, even where there was a justiciable issue to be argued.[64]<\/a> While approaches to standing are far from homogeneous, a general trend toward relaxation of strict standing requirements can be observed in many common law jurisdictions since the 1970s, whether through legislative intervention or judicial determination.[65]<\/a><\/p>\n Costs of participation in the legal process can be a significant disincentive to potential litigants. Parties will face considerable legal, evidentiary, and personal costs, and costs may also be awarded against them if they are unsuccessful.[66]<\/a> Legal aid may be available, but the income or disposable asset threshold for eligibility is often set at a level that precludes people of average financial means from obtaining assistance. Furthermore, legal aid may not be available to corporate or unincorporated bodies. It is not unknown for applicants in environmental and development litigation (and their legal advisors) to ask for security for costs, or use the threat of costs to dissuade opponents from participating in the legal process.[67]<\/a><\/p>\n Public interest groups and individuals representing important matters of public interest, or bringing test cases or representative actions on environmental matters, are generally not immune from an award for costs against them. In an unsuccessful action opposing a gold mine development in New Zealand, Peninsula Watchdog (an environmental interest group) sought a public interest exception to the award of costs.[68]<\/a> Judge Salmon rejected a general costs exception rule, stating:<\/p>\n [T]he possibility of being ordered to pay costs provides an incentive for litigants to examine rigorously whether they have seriously arguable cases and whether they have taken all reasonable steps available to limit the issues. A practice of not ordering a class of litigants to pay the costs of other parties would remove that incentive and could result in other parties having to incur greater costs than otherwise.[69]<\/a><\/p>\n Where there is a significant and legitimate public interest matter or legal question to be answered, however, costs may be reduced, or not awarded at all.[70]<\/a><\/p>\n Individual members of incorporated societies are usually not personally liable for costs, which is an important consideration when deciding in whose name to bring proceedings. Avoiding vexatious actions and exercising discipline over the way a case is argued increases the chances of avoiding, or minimizing, liability for costs.<\/p>\n Orders for security for costs can also be used strategically against environmental litigants with the knowledge that they have limited funds and assets. Rules of civil procedure generally allow such orders to be made in the court\u2019s discretion. Where legitimate environmental issues are raised by bona fide public interest litigants, however, courts often exercise their discretion not to order security for costs, thus balancing the need for matters of public interest to be determined with the allowance of an impecunious litigant to put unfair pressure on their opponent.[71]<\/a> Other barriers to participation include access to information and the technical expertise to both provide expert evidence and interpret data at the hearing.[72]<\/a><\/p>\n A related issue, particularly in North America, has been the increasing use of \u201cstrategic lawsuits against public participation\u201d (SLAPPs),[73]<\/a> whereby proponents of development will bring suits against individuals, or public interest groups using claims such as defamation, conspiracy, nuisance, and interference with contractual relations.[74]<\/a> Often, the legal issue raised is secondary to the deterrent effect, draining the opponent of financial resources and the will to continue the proceedings. As Michaelin Scott and Chris Tollefson opine:<\/p>\n [W]inning the lawsuit is not the filer\u2019s principal goal. Instead … they use such suits for a variety of tangential purposes including silencing the target and draining its resources, discouraging future opposition, and offering a highly visible warning to others who might wish to express an opinion.[75]<\/a><\/p>\n Courts have also been proactive in developing defences to such claims. In Grant v<\/em>.<\/em> Torstar Corp<\/em>, the Supreme Court of Canada applied the freedom of expression guarantee in subsection\u00a02(b) of the Canadian Charter of Rights and Freedoms<\/em> to provide a defence of \u201cresponsible communication of matters of public interest\u201d against a SLAPP defamation suit.[76]<\/a> Indeed, the courts in many jurisdictions are clearly upholding the importance of freedom of expression in matters of public interest.[77]<\/a> Moreover, anti-SLAPP legislation has been enacted in a number of jurisdictions.[78]<\/a><\/p>\n Another suggested way of ameliorating the various standing and costs barriers to environmental litigation is through class actions. In Western Canadian Shopping Centres Inc<\/em>.<\/em> v. Dutton<\/em>[79]<\/sup><\/a> (Dutton<\/em>) Chief Justice McLachlin noted the benefits of class actions in environmental cases:<\/p>\n The class action plays an important role in today\u2019s world. The rise of mass production, the diversification of corporate ownership, the advent of the mega-corporation, and the recognition of environmental wrongs have all contributed to its growth. \u2026 Environmental pollution may have consequences for citizens all over the country. … The class action offers a means of efficiently resolving such disputes in a manner that is fair to all parties.[80]<\/a><\/p>\n The Chief Justice also recognized the benefits of \u201cjudicial economy by avoiding unnecessary duplication in fact-finding and legal analysis,\u201d financial savings for litigants, and accountability of wrongdoers for widespread harm by allowing actions that may otherwise not be brought.[81]<\/a> A significant advantage of class actions is that litigants may be insulated, or partially insulated, from costs awards if unsuccessful, provided the action was not an abuse of process or involved no improper conduct.[82]<\/a><\/p>\n Class actions may be allowed either through the inherent powers of the court, through the applicable rules procedure, or through specific class action legislation. In Dutton<\/em>, the Court identified the following conditions for class actions in Canada: \u201c(1) the class is capable of clear definition; (2) there are issues of fact or law common to all class members; (3) success for one class member means success for all; and (4) the proposed representative adequately represents the interests of the class.\u201d[83]<\/a> In most common law jurisdictions, class actions are governed by specific legislative provisions that generally follow these criteria.[84]<\/a> Class actions are nevertheless relatively rare, due in part to the more widespread use of incorporated societies to undertake environmental litigation.<\/p>\n Courts in some jurisdictions have applied a restrictive approach to certifying class actions,[85]<\/a> while in others, broad flexibility has been the norm.[86]<\/a> In Hollick<\/em>, the Canadian Supreme Court, while concerned that the courts not take an overly restrictive approach to certifying class actions, nevertheless declined to certify a class action. The Court considered that the differing nature, geographical, and temporal diversity of effects on individual claimants, and the complexity of potential individual claims, meant that any common issue justifying a class action was negligible.[87]<\/a> There is no doubt, however, that if the certification hurdle can be cleared, environmental class actions provide a very useful tool for cost-effective litigation on matters of widespread environmental concern.<\/p>\n Property, contract, and tort are the core elements of private common law in relation to governing the use and development of land and natural resources. In many ways, they are mutually supportive and intricately related, but also protect rights and offer remedies that are independently enforceable. While property law will be studied in more depth in the following part (Part\u00a0III), the supporting roles played by contract (Part\u00a0II-A) and tort (Part\u00a0II-B) will be analyzed below.<\/p>\n A starting point in this analysis is the acquisition and holding of property rights in land and resources. Following initial grants of interests in land by the Crown or state, property matters generally fall in the realm of private law in terms of title, transferability, subdivisibility, multiplicity of interests, and use as capital or as security for advances. Use and development of land is, of course, subject to limitations and discretionary decision making by state agencies through planning law and other environmental regulation.<\/p>\n Contract law is core to the transfer of title, subdivision of land, creation of lesser interests such as leases, easements, and profits \u00e0 prendre, and use of land as security. Contract law can also provide for agreed restrictions on the use of land such as restrictive covenants. These mechanisms can be useful in achieving environmental objectives. Examples include easements over ecologically-significant land, or conservation covenants to preserve wilderness and forested areas. Once a contractual right or restriction relating to property is agreed, the contract often gives birth to specific proprietary rights and obligations that acquire a life of their own.[88]<\/a><\/p>\n The same principle applies to other recognized interests in land created by contract (such as easements and restrictive covenants), which will generally run with the land to bind future owners and occupiers who were not parties to the original contract, and also prevent interference by third parties. In jurisdictions with a Torrens-type land registration system, such rights must usually be registered or noted against the title to ensure the interest does in fact run with the land to have lasting effect and avoid the effects of the principle of indefeasibility of title. A further element once a proprietary interest has been created is that various property law rules and principles\u2014such as the doctrine of waste, riparian rights, and the common law right to support\u2014will come into play and apply to the interest.<\/p>\n The law of torts is an important interrelated common law mechanism that provides, inter alia<\/em>, protection of property rights against interference. It can also provide legal recourse against interference to individuals and property owners from uses of land and resources by other property owners or individuals. Some tortious remedies relevant to environmental challenges are exercisable by individuals independently of ownership of a property right, while others rely upon these rights. Examples of the former relevant to environmental harm include trespass to the person and negligence causing personal injury. Examples of the latter include trespass to land (Part II-B-1), nuisance (Part\u00a0II-B-2), negligence causing property damage (Part\u00a0II-B-3), strict liability (or the rule in Rylands v. Fletcher<\/em>) (Part II-B-4), and the doctrine of waste (Part II-B-5). The categories of torts, and the way they are applied, are not fixed in time, and are capable of expansion through the judicial process to meet new circumstances and provide new remedies. While the principles applicable to these various torts can be found in any textbook on the subject,[89]<\/a> it is useful to briefly review the main elements of property-related torts that play a supportive role in addressing environmental challenges.<\/p>\n Trespass to land is an area of great potential application to environmental pollution. An action lies where there is an intentional physical invasion of a person\u2019s property. The tort has been used in a number of jurisdictions to address a wide variety of environmental harms. Projectiles, blasting debris, noise and vibration, water discharges, and water or air-borne pollutants have all been the subject of claims.[90]<\/a> The action has also been used to cover the release of exotic or noxious flora and fauna, and where environmental contaminants have settled onto neighbouring land. In the early United States case Martin v. Reynolds Metals <\/em>Company<\/em>, for instance, emissions of fluoride deposits that had settled on the plaintiff\u2019s land were held to be a trespass.[91]<\/a> The expansion of the doctrine has not been so enthusiastically embraced in other jurisdictions, however.[92]<\/a><\/p>\n Some modern cases of trespass have not required physical contact with the land,[93]<\/a> opening the way for the expansion of trespass to cases where airborne particulate or other toxic matter is carried across neighbouring land, whether or not it settles on the land itself.[94]<\/a> Similarly, as the substrata of land is prima facie <\/em>in possession of the surface owner or occupier,[95]<\/a> trespass may lie where dissemination through the substrata of toxic chemicals, or other harmful substances, causes damage to the surface landowner or other right-holder.[96]<\/a> This possibility has clear applications to oil and gas production technology, including \u201cfracking\u201d.[97]<\/a> In Coastal Oil & Gas Corp v. Garza Energy Trust<\/em>, a gas field operator (Salinas) sought damages in trespass against a neighbouring operator (Coastal Oil) that had used hydraulic fracturing to enhance the flow of gas from its reservoir. Although the Texas Supreme Court held in this case that the \u201crule of capture\u201d barred recovery, it stated that such an action may be available where a fracking operation damages a neighbouring well, or the reservoir.[98]<\/a><\/p>\n Failing to remove an object or structure may also constitute a trespass.[99]<\/a> Thus, an action may lie if a developer or miner has not undertaken restoration and rehabilitation works. Remedies for trespass include damages, injunctive relief, and the recovery of land.<\/p>\n Nuisance is traditionally regarded as the main environmental tort. Private nuisance has been defined as \u201cinvasions of an occupier\u2019s interest in the beneficial use and enjoyment of land.\u201d[100]<\/a> Such interference may extend beyond direct physical intrusions, and may include noise, smell, vibration, and other interferences emanating from neighbouring land. The tort is therefore particularly well-suited as a means of challenging industrial activities, construction and infrastructure developments, agricultural activities, natural resource use, and other activities that damage or interfere with environmental and ecological values. Emissions of noise or vibration, offensive operations or trades, threats to health, comfort or safety, air and water pollution, spread of noxious weeds, and even blockage of solar access and solar reflection have been the subject of such claims.[101]<\/a> Modern applications of the tort could include the release of genetically modified organisms.[102]<\/a> A number of recent cases in the United States have attempted to address climate change issues through actions in nuisance and other common law avenues.[103]<\/a> In 2016, in Juliana v. United States<\/em>, plaintiffs brought a suit alleging that the United States government had violated certain constitutional rights and the public trust doctrine by failing to take meaningful steps to address climate change. The Court has refused to dismiss the suit and substantive arguments are scheduled to be heard in early 2017.[104]<\/a><\/p>\n In Canada, in Smith v. Inco Ltd<\/em>,[105]<\/a> Ontario residents living in close proximity to a nickel refinery brought a class action for damages for loss of property values caused, inter alia<\/em>, by soil contamination from the refinery\u2019s activities over sixty-six years. Their claims were based on trespass, nuisance, and strict liability. The claim in nuisance was ultimately unsuccessful, largely due to the failure to show actual and substantial physical injury to land. Nevertheless, the Court of Appeal considered in detail the relevance of private nuisance and confirmed that private nuisance could be available in such cases for unreasonable interference with a property owner\u2019s rights, even where the activity causing the harm was lawful and otherwise reasonable at the time.[106]<\/a> The remedies available for private nuisance include damages, injunctive relief, or a combination of both, and in some circumstances the old privilege of abatement.[107]<\/a><\/p>\n Public nuisance concerns collective personal or public injury or loss, and may assist those who experience, directly or indirectly, environmental harm of a widespread nature.[108]<\/a> It concerns injury \u201cto the property of mankind,\u201d[109]<\/a> and therefore has significant potential to redress environmental damage.[110]<\/a> Where a number of private nuisances flow from a common cause, a class action may be brought, or the Attorney-General may bring an action on behalf of the class of people objecting in \u201crelator\u201d proceedings. Such an action can be applied to a wide variety of environmental injuries and damage. Damages are available on much the same basis as for private nuisance, although injunctive relief will likely be preferred in the case of public nuisance.[111]<\/a><\/p>\n Negligence actions involving damage to land have included liability in relation to fire that spreads to a neighbour\u2019s land, to water usage, and to dangerous articles or matters that cause damage.[112]<\/a> Negligence therefore has considerable applicability to environmental harm as a result of development projects and industrial activities. In many of these situations, an action based on trespass or strict liability (the rule in Rylands v. Fletcher<\/em>) may also be appropriate.<\/p>\n More recent applications of the principle in the environmental arena have included liability for the spread of noxious chemicals or other materials causing damage to land and crops. In AG v. Geothermal Produce New Zealand Ltd<\/em>, a contractor was found negligent for spraying herbicides close to crops of a neighbouring landowner on a windy day.[113]<\/a> As the damage was foreseeable, the loss of income and reduced future profits were recoverable by the plaintiff.[114]<\/a><\/p>\n While the courts have shown a tendency to defer to legislative measures in the area of environmental liability,[115]<\/a> negligence actions for property damage provide a fertile ground for redress for legitimate complaints of environmental injury or damage that may be unaddressed through other legal avenues.<\/p>\n Torts such as trespass, negligence, and nuisance all rely to some extent upon some element of fault by action or inaction. In contrast, strict liability allocates prima facie <\/em>liability without proof of fault in the case of hazardous activities or the storage of hazardous substances on land which escape and cause damage.[116]<\/a> It is therefore of great utility in the environmental pollution area.<\/p>\n The principle has an inherently flexible application, which makes it particularly adaptable to modern circumstances involving activities of high risk to the environment. It has been applied to damage caused by fire, explosive or combustible materials, sewage and effluent, water, noise and vibration, industrial or mechanical failure, and damage from pesticides, herbicides, and chemicals.[117]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Rylands v. Fletcher <\/em>is now regarded in the United Kingdom and in New Zealand as a special form of private nuisance liability.[118]<\/a> As such, it is \u201ca remedy for damage to land or interests in land\u201d[119]<\/a> and it follows that \u201cdamages for personal injuries are not recoverable under the rule.\u201d[120]<\/a> In Australia, the doctrine has been subsumed into the law of negligence.[121]<\/a> The doctrine appears to survive as a tortious remedy in its own right in Canada,[122]<\/a> but in the United States, the doctrine has largely been subsumed under a more general head of liability for abnormally dangerous activities.[123]<\/a><\/p>\n The doctrine of waste is a tort that applies to grants of estates such as leases or life estates. It is defined as \u201cany act or omission on the part of the tenant which causes a lasting alteration to the nature of the land … to the prejudice of the person who has the remainder or reversion of the land.\u201d[124]<\/a><\/p>\n Waste has significant potential as a tool of environmental law enforcement in relation to leases of land, grants of life estates, and other interests in land where a reversionary interest remains. One important potential application is long-term Crown or government leases of agricultural, commercial, or industrial land. Waste may be a very useful remedy where environmental harm, or unauthorized damage to or depletion of natural resources, occurs through the fault of the grantee of such interests.<\/p>\n Environmental governance and the holding and exercise of property rights are inherently in tension. Some environmentalists argue that private property rights militate against the interests of environmental protection and ecological sustainability.[125]<\/sup><\/a> In contrast, many economists argue that strong property rights, with minimal interference from government, produce optimal long-term environmental outcomes. In their perspective, the sustainable use of land and natural resources is in the landowner\u2019s best interest to maintain and enhance the value of the underlying resource\u2014thus avoiding the \u201ctragedy of the commons.\u201d[126]<\/sup><\/a><\/p>\n Traditionally, there has been little conceptual overlap between property law\u2014which is classified primarily as a private law discipline\u2014and environmental law and policy, considered to be predominantly a public law discipline. Property law, on the one hand, is mainly concerned with the legal rights of ownership, occupation, use, and dealings with land, including structures and natural resources that are part of land. Environmental law, on the other hand, is generally concerned with the effects of the exercise of such rights, particularly on neighbouring landowners, communities, and the public interest.<\/p>\n The identification of property rights in some natural resources, and the definition of environmental values that environmental laws aim to protect, is oftentimes challenging. The costs of extraction, processing, and marketing of natural resources can generally be quantified through conventional financial analysis. However, environmental values that may be harmed in these activities\u2014such as aesthetics, amenity, and wilderness\u2014are not easily quantifiable under conventional economic theories.[127]<\/sup><\/a> There are no true markets for such values, and few entities\u2014private or public\u2014are prepared to pay for their protection. Malte Faber, one of the leading proponents of ecological economics, notes the three fundamental deficits of mainstream economics when applied to environmental issues: \u201c[F]irst, the lack of an adequate conceptualisation of nature, second, a failure to handle the question of justice, and third, a failure to deal with the dynamics of time.\u201d[128]<\/sup><\/a><\/p>\n There are also significant challenges in predicting the needs and value premises of future generations, and the appropriate horizons for such considerations. Despite these challenges, a growing body of writing explores the continuing relevance of property concepts to environmental protection and sustainable development of natural resources.[129]<\/sup><\/a><\/p>\n This part will first briefly discuss the nature of property rights (Part\u00a0III-A) before exploring the use of traditional property rights in environmental governance (Part III-B). It will then briefly discuss relevant legislative and administrative measures that affect property rights in relation to land and natural resources (Part III-C). Finally it will explore recent innovations and new applications of property rights to address environmental challenges (Part III-D).<\/p>\n Just as the concept of sustainability is difficult to define and implement in an enforceable way, the notion of property defies concise definition.[130]<\/sup><\/a> Property, as an abstract construct, contributes to the management of social and economic relations in society. The concept is inherently dynamic, as it changes and adapts to the demands and circumstances of society.[131]<\/sup><\/a> It is one of the foundational elements of economic productivity and of the creation of wealth in most societies.<\/p>\n Individually-held property rights have never been absolute under the law.[132]<\/a> Such rights have always been subject to the rights of neighbouring property owners not to have their property adversely affected or damaged by others. This limitation is reflected in the common law torts of trespass to land and nuisance, discussed above. Moreover, private property rights have always been subject to limitations in the public interest often expressed through planning, environmental, and natural resource regulatory regimes. Arguably, the holding of property rights carries correlative obligations of good stewardship and respect for ecological processes, given the dependence of humanity on the health and sustainability of these processes.<\/p>\n Natural resources found on or in land\u2014such as minerals, trees, structures, and other fixed objects\u2014are normally considered to be part of the land. Migratory resources\u2014such as natural water percolating under or flowing through land, geothermal steam, fish, wild animals, and oil and gas\u2014are generally not wholly within the surface landowner\u2019s bundle of rights. The common law has struggled to assign clear rules of ownership and management to such resources, often falling back on the ancient \u201crule of capture.\u201d[133]<\/sup><\/a> The uncertainty of this regime and its inappropriateness for high-value strategic resources such as oil, gas, and geothermal energy, have led to intervention in many jurisdictions, such as the nationalization of ownership and control over these resources.[134]<\/sup><\/a><\/p>\n Today, many new types of rights that go far beyond traditional property rights are being created. These rights include water- and land-use permissions, water- and land-management regimes,[135]<\/sup><\/a> fisheries quota,[136]<\/sup><\/a> mining and energy permits and access rights,[137]<\/sup><\/a> forestry harvesting rights,[138]<\/sup><\/a> rights of Indigenous peoples to traditional resources and food sources,I.\u00a0\u00a0 Speed Bumps and Roadblocks in Utilizing the Common Law to Address Environmental Challenges<\/h1>\n
A.\u00a0 Interests and Interest Groups<\/h2>\n
B.\u00a0 Rights, Obligations, and Justiciability<\/h2>\n
C.\u00a0 The Issue of Pre-emption and Displacement<\/h2>\n
D.\u00a0 Standing, Costs, and Other Barriers<\/h2>\n
E.\u00a0 Class Actions<\/h2>\n
II. The Interrelationship of Property, Contract, and Tort in Addressing Environmental Challenges<\/h1>\n
A.\u00a0 Property Rights and Contract<\/h2>\n
B.\u00a0 The Supportive Role of the Law of Torts<\/h2>\n
1.\u00a0\u00a0 Trespass to Land<\/h3>\n
2.\u00a0\u00a0 Nuisance<\/h3>\n
3.\u00a0\u00a0 Negligence Causing Property Damage<\/h3>\n
4.\u00a0\u00a0 Strict Liability: Rylands v. Fletcher<\/em><\/h3>\n
5.\u00a0\u00a0 The Doctrine of Waste<\/h3>\n
III.\u00a0 The Current Utility and Future Potential of Property Law in Addressing Environmental Challenges<\/h1>\n
A.\u00a0 The Nature of Property in Land and Natural Resources<\/h2>\n