Environmental Water Law: UK and Canada Compared

Origins of Environmental Law in Canada and the United Kingdom

Humans have been stewards of the earth since at least the era in which they settled into semi-permanent and then permanent farms. This does not, of course, mean that our species has always provided good stewardship of the earth. Rather, when humans ceased to be nomadic and connected themselves to a specific place, they began to make the connection between their own activities and the condition of the land around them. Humans understood from the beginnings of civilization that their actions could affect the earth in ways that would prove detrimental to people. How people chose to respond to this knowledge has varied considerably.

The first laws regarding the environment were not laws at all, if by "laws" we mean written codes carrying governmental force. Like other forms of law, what would become environmental law began as informal agreements among people — such as promises not to dump food scraps upstream of a neighbor's house.

As societies became more hierarchical and more formal, and as settlements grew increasingly permanent, laws became a way of supporting the rights of the powerful. Environmental laws thus probably have a significant basis in the desire of the powerful to protect their own land and property. Laws meant to protect the property of one person can, however, often have a beneficial effect on an entire community.

While legal protections for the environment — whether formally conceived of as such or not — date from ancient times, modern environmental law can properly be dated from the 19th century. This is in no way coincidental: the Industrial Revolution brought with it environmental destruction on an unequaled scale, polluting air, land, and water. Scientists as well as politicians across the industrializing world began to realize that without regulation the earth might become so compromised that the advances brought about by industrialization might well be lost to environmental degradation — a realization that we in the 21st century are still coming to terms with. This paper examines the development of environmental law as it applies to water pollution in the United Kingdom and in Canada, particularly in Ontario. This opening chapter focuses on the origins of such laws not simply because English common law is by definition based in historical precedent, but also because the philosophical and cultural underpinnings of those first laws remain embedded in current law. No understanding of the current state — or the potential future direction — of environmental law in these two jurisdictions would be complete without such a historical examination.

The first important attempt to create a legal basis for protecting the environment in the United Kingdom came in 1863 with the Alkali Act of 1863. This act empowered five inspectors to curb the discharge of hydrogen chloride into the air from the Leblanc alkali works (Fred Aftalion, A History of the International Chemical Industry, UOP, 11–13). The history of this particular law and the conditions that prompted its enactment are worth examining in some detail, because this legal episode has had long-lasting effects on environmental law and philosophy in the United Kingdom. While the focus of this paper is on water pollution, this section on the historical basis of environmental law begins with air pollution simply because air pollution was historically the first form of environmental degradation to be formally addressed.

This reflected both the state of environmental scientific knowledge at the time and the ways in which the first generations of factories harmed the environment. It also reflected cultural and social reactions to the earliest forms of pollution: air pollution is highly visible. While water pollution has arguably as many harmful effects on human and other living populations as does air pollution, for those generations living through the first historical onslaught of industrialization, it was the roaring smokestacks turning the air into toxic soup that were the most obvious signs of a changing world. Of course, no single area of pollution can be seen as separate from any other: the environment is an integrated whole, and degradation of the air leaches into degradation of water, soil, and biomass, with feedback loops throughout.

The particular sources of pollution that prompted the English Alkali Acts were indeed highly damaging to the local environment (Fred Aftalion, A History of the International Chemical Industry, UOP, 11–13). But as is often the case with environmental law, those who were on the receiving end of regulation were only the last in a long line of actors who had been damaging the environment. The Leblanc alkali production processes were especially pernicious, but they followed along the lines of previous industrial processes. In other words, the first British environmental legislation was a response not so much to a qualitative change in industrial processes and their environmental impact as to a quantitative increase in sources of pollution that had up to that point been — if only barely — tolerable.

At the center of the first British environmental legislation was the Leblanc process, an industrial method of producing soda ash (chemically, sodium carbonate) that came into use in the first decades of the 19th century. Named after its inventor, Nicolas Leblanc, it replaced an older process in which soda ash had been produced from wood ash. As the availability of wood ash declined because of deforestation occurring across Great Britain and Europe, the Leblanc process became increasingly important. (Some soda ash was imported to Europe from the New World, where deforestation was also occurring; however, because deforestation had begun later in the New World — including in Canada — large stands of forests still remained.) (Colin Russell, Chemistry, Society and Environment: A New History of the British Chemical Industry, Royal Society of Chemistry, 2000).

At the same time that the availability of wood ash was declining, demand for soda ash was steeply increasing. Soda ash and potash (chemically, potassium carbonate) are both essential ingredients in a number of industrial processes, including the production of paper, soap, glass, and fabric. While the Leblanc process was first used on a wide scale in France — which by the first decades of the 19th century was producing 10,000–15,000 tons of alkali each year — it was in Britain that the process, and its environmental consequences, reached its highest levels of use.

The first British soda works using the Leblanc process was established in 1816 on the River Tyne, thereby producing both water and air pollution (Colin Russell, Chemistry, Society and Environment, 24). At this time there were no legal restrictions on the polluting aspects of alkali production; however, tariffs were in place on salt. Given that salt is an integral ingredient in the Leblanc process, these tariffs coincidentally limited the environmental effects of the process (Colin Russell, 29–31).

When the salt tariffs were repealed, large chemical works were established in both England and Scotland. By the 1850s Britain was producing 140,000 tons of soda per year, and by the 1870s it was producing over 200,000 tons of ash — more than the rest of the world combined (W. J. Reader, Imperial Chemical Industries: A History, Volume 1, The Forerunners 1870–1926, OUP, 1970, 27).

The Alkali Act of 1863 and Legislation Arising from Public Anger

The serious consequences of the Leblanc process were quickly apparent. The byproducts of the process were vented directly into the air and were partly absorbed into nearby rivers. A sulfurous smell clung to the factories, and the solid waste produced by the process was simply dumped on local fields, where it began to leach into the water table and aquifers (W. J. Reader, 34).

By 1839, lawsuits were being filed against different soda works. This is an important aspect of environmental law, because it remains the case in both Britain and Canada that much of environmental law is derived from litigation. While important environmental law also emanates from other parts of the political system, citizen intervention through lawsuits remains a driving force for improving legal environmental protections in both nations.

One of the first lawsuits against a soda ash plant argued that:

"…the gas from these manufactories is of such a deleterious nature as to blight everything within its influence, and is alike baneful to health and property. The herbage of the fields in their vicinity is scorched, the gardens neither yield fruit nor vegetables; many flourishing trees have lately become rotten naked sticks. Cattle and poultry droop and pine away. It tarnishes the furniture in our houses, and when we are exposed to it, which is of frequent occurrence, we are afflicted with coughs and pains in the head … all of which we attribute to the Alkali works." (W. J. Reader, 38).

It was precisely such public concerns, channeled through lawsuits, that prompted the British Parliament to pass the first of the Alkali Acts — the first modern air pollution legislation. However, while this was an important step in acknowledging the government's obligation to protect the public good and the environment from the actions of industry, the changes in manufacturing processes the law brought about actually increased water pollution as a result. Early environmental law did not address the fact that pollution is a systemic problem.

Early environmental law in Canada — such as Parry Sound Lumbering Co v Ferris (1882) and the Water Privileges Act of 1859 — was keyed to the particular concerns of local industry and business. Just as the first British environmental laws addressed the most acute problems arising from industrialization, the first Canadian environmental laws reflected the effects of colonization. Canada remained, from European colonization through the 19th century, primarily a source of raw materials for Britain and other European nations. The first environmental laws thus sought to protect riparian rights along with the preservation of forests.

While the particulars of Canadian law were different because they were crafted in response to distinctly Canadian environmental problems, they were based on the same basic precepts and mechanisms as British environmental law. Behind both sets of law was the fundamental idea that the government has a duty to protect the environment as part of the public trust. Canadian legislators — connected in part by formal links between the British and Canadian legal systems — were also prompted to create new law by the concerns of individuals witnessing environmental harm around them.

The environmental policies of the two nations have much in common, with Canadian law following British law in many ways in its form, intent, and historical development.

The first laws addressed above arose in response to the environmental devastation wrought in England and Scotland by early industrialization. Although the full mechanisms and effects of those environmental problems were not initially understood in the 19th century, people living in the areas that were the first to industrialize were certainly aware of the ways in which their subjective experience was being affected. In Canada too, ordinary citizens were aware of the ways in which rivers and forests were being harmed by carelessness on the part of trappers and loggers. (Ironically, part of the logging occurring in Canada was for the purpose of producing wood ash to send to Europe, where deforestation had already taken hold.)

Over the course of the last decades of the 19th century and during the first half of the 20th century, a number of environmental laws were passed in both nations. However, while many of these laws were well-thought-out and effective in addressing specific targets, they tended to be narrowly focused. This arose from two factors. First, there was not yet a good scientific or political understanding of the myriad and complex ways in which all spheres of the environment are linked, and therefore how fundamentally ineffective piecemeal legislation would prove to be. Second, so much of early environmental legislation was based in specific protests and activism by individuals and groups. These grassroots origins tended to produce responses to local conditions, leading to a lack of overall integration at the national or even regional level.

Among key pieces of early environmental law was the 1908 institution of the first chlorination system in Jersey City — the first such system in the United States — designed to address a number of important pollution sources in the local water supply, including micro-organisms that cause typhoid and cholera as well as other waterborne diseases. After the success in reducing sickness in that town, similar systems were instituted across both the United States and Canada.

Modern water pollution legislation in Canada tends to focus on industrial pollutants, pollution from agricultural sources, and pollution caused indirectly by human activities such as erosion. Modern pollution legislation is no longer focused primarily on disease prevention because in the developed world this is no longer the most pressing problem. Just as early environmental legislation was a response to historically specific conditions, so too were the laws enacted in the first part of the 20th century.

Canadian environmental law in the first half of the 20th century was focused on issues of water pollution. While much of this law arose from English common law — and from the fact that Great Britain and Canada remain linked in certain legal ways — Canadian environmental law was also fundamentally influenced by American law because of the adjacent geography of the two nations.

An example of the ways in which the concerns and legal systems of the three nations converged over environmental issues was the 1909 Boundary Waters Treaty. The initial intention of this act was to avoid navigational disputes over shared waters. However, it quickly gave rise to the International Joint Commission, which focused on binational agreements to reduce pollution in the Great Lakes.

That commission is still in existence and is one of the most important agencies regulating the environment in Canada. Its current structure and mission are described as follows:

"Canada and the United States created the International Joint Commission because they recognized that each country is affected by the other's actions in lake and river systems along the border. The two countries cooperate to manage these waters wisely and to protect them for the benefit of today's citizens and future generations…. These differing needs conflict from time to time. In some cases the International Joint Commission plays the role of authorizing uses while protecting competing interests in accordance with rules set out by the two governments in the Treaty. For example, the Commission may be called upon to approve applications for dams or canals in these waters. If it approves a project, the Commission can set conditions limiting water levels and flows, for example to protect shore properties and wetlands and the interests of farmers, shippers and others. After the structure is built, the Commission may continue to play a role in how it is operated. When asked by governments, the International Joint Commission investigates pollution problems in lakes and rivers along the Canada–United States border. When communities or industries pollute these waters, both countries may suffer. The governments of the United States and Canada can also ask the Commission to monitor situations and to recommend actions." (International Joint Commission)

In this legislation one can see the beginnings of a modern environmental sensibility, in that the concerns are more regional than local. Such a concern in Canadian environmental philosophy can be seen in a 1915 statement by Canada's Commission on Conservation that emphasized the concept of what would come to be called sustainable growth: "Each generation is entitled to the interest on the natural capital, but the principal should be handed on unimpaired."

The purpose of the commission was set forth in section 10 of the Act:

"It shall be the duty of the Commission to take into consideration all questions which may be brought to its notice relating to the conservation and better utilization of the natural resources of Canada, to make such inventories, collect and disseminate such information, conduct such investigations inside and outside of Canada, and frame such recommendations as seem conducive to the accomplishment of that end."

The commission was neither legislative nor executive but purely advisory. It was, however, an important step in acknowledging the responsibility that the nation's leaders had to protect the common environmental heritage of the people. Charles Hodgetts, writing in the Journal of the American Public Health Association in 1910, noted both the influence of American environmental policy on Canada and linked Canadian environmental policy to the broader concept of public health:

Modern Environmental Law: Toward Integrated Policy

"Confederation occurred July 1st, 1867, at a time when little was thought of hygiene or sanitation, to say nothing about the many subjects now classed under the generic term, 'public health,' and so for nearly four years following 1867 all the work done under the name of public health was carried on by the federal government by the men who had been instrumental in securing the Act of Confederation, and it was not by any Act of the Federal Government that public health was delegated to the provinces." (Charles Hodgetts, "The Canadian Commission of Conservation and Public Health," 1910, 402).

The above description outlines some of the core problems in establishing the bases for environmental law in Canada. These problems were not replicated to the same degree in Great Britain because of the greater focus on regional — that is to say provincial — government in Canada.

While the advisory nature of the commission limited its power, it in some ways increased its authority by allowing it to sidestep many of the political logjams that arose when federal and provincial governments claimed competing authority:

"The Commission is not an executive nor an administrative body. It has no executive or administrative powers. Its constitution gives it power to take into consideration every subject which may be regarded by its members as related to the conservation of natural resources, but the results of that consideration are advisory only. In a sentence, the Commission is a body constituted for the purpose of collecting exact information, deliberating upon, digesting, and assimilating this information so as to render it of practical benefit to the country, and for the purpose of advising upon all questions of policy that may arise in reference to the actual administration of natural resources where the question of their effective conservation and economical use is concerned. The effectiveness of our work will depend upon its own merits. We can only study, investigate, and advise. The governments concerned must take the responsibility of accepting or rejecting what we recommend." (Charles Hodgetts, 404).

The focus of the commission was, as its full title indicates, on public health more than on conservation per se. Just as the earliest environmental law was derived from the desire of property owners to protect their own land, the environmental legislation of the late 19th and early 20th centuries was based primarily on concerns about human health. While this remains central to current environmental law in both Canada and the United Kingdom, the shift has been toward a broader perspective, in recognition that human health cannot be separated from the health of the whole environment.

Hodgetts himself made this point forcefully:

"That in a wealthy country like the United States the important and advanced work of sanitary science should be carried on by charitable organizations, by endowment funds, and not by the men who are nominally the leaders of public health, is a mistake. That these various branches of higher public health work are not directed by a national department of health is lamentable indeed. In Canada I consider it as criminal indifference on the part of those responsible for its government. For why so much time, attention, and money should be spent on beasts and fishes to the almost utter neglect of all that appertains to the well-being and life of human beings, is past comprehension. Health is national, health is state or provincial, health is municipal." (Charles Hodgetts, 404).

In the late 1920s, a lawsuit was filed over sulphur dioxide pollution emitted from a lead-zinc smelter in Trail, British Columbia. The lawsuit was filed by American farmers and orchardists in Washington State whose crops were being ruined by the smelter. A tribunal ruling on the lawsuit found that: "No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another, or to the persons or property therein, when the case is of serious consequence and the injury is established by clear and convincing evidence."

This ruling is regarded as "a milestone in the development of State responsibility for environmental injury and as having laid out the foundations of International Environmental Law as regards trans-frontier pollution." It was an important step in environmental regulation because it helped prepare the legal basis for future legislation — much of which also arose from lawsuits — that enjoined one political entity from harming another.

The case also indicates that states may be enjoined to take measures to prevent the repetition of environmental injury for which they would be held responsible. Although Canada had no right to cause serious injury to the United States, its right to continue operating the smelter was maintained. Thus, despite Canada's admission of a breach of obligation, the tribunal achieved a balance of interests between the two parties — a balance that formed the basis for the arbitration (Trail Smelter Arbitration [1938/1941, 3 R.I.A.A.]).

While the issues central to this case revolve around air pollution, the case also had significant implications for water pollution law in Canada, as the pollution became part of the Columbia River watershed:

"The Columbia River rises in Canada and flows past a lead and zinc smelter at Trail, British Columbia. The climate from beyond Trail on the United States boundary is dry, but not arid. The smelter had been built under U.S. auspices, but had been taken over by a Canadian company in 1906. In 1925 and 1927, stacks 409 feet high were erected and the smelter increased its output, resulting in more sulphur dioxide fumes. The higher stacks increased the area of damage in the United States. From 1925 to 1931, damage had been caused in the State of Washington by the sulphur dioxide coming from the Trail Smelter, and the International Joint Commission recommended payment of $350,000 in respect of damage to 1 January 1932. The United States informed Canada that conditions were still unsatisfactory and an Arbitration Tribunal was set up to 'finally decide' whether further damage had been caused in Washington and the indemnity due, whether the smelter should be required to cease operation, the measures to be adopted to this end, and compensation due. The Tribunal was directed to apply the law and practice of the United States as well as international law and practice."

Joint American–Canadian policy continued through the 1930s as the Dust Bowl affected both nations. This environmental disaster was caused by a number of factors, including poor soil conservation policies, but it also arose from poor water conservation policy. Both nations — primarily the United States — responded in large measure by increasing irrigation for agriculture, thus beginning the depletion of vital aquifers.

The terrible storms of the Dust Bowl still have after-effects in terms of Canadian environmental law, including Canada's status as a signatory to the United Nations' Convention to Combat Desertification. The federal government's "First Report on Domestic Activities Relevant to the United Nations Convention to Combat Desertification" cites the continuing consequences of the 1930s:

"Canada, however, is in a rather unique position as it is also an affected country under the Convention. Portions of the three Canadian Prairie Provinces — Alberta, Saskatchewan and Manitoba — are comprised of semiarid and dry subhumid lands vulnerable to land degradation and desertification. This area — known as Palliser's Triangle — is mostly agricultural land currently used for crop and livestock production. The Triangle has suffered from land degradation and drought for a long time: many Canadians will remember the Dust Bowl of the 1930s, when thousands of square kilometres of this once fragile land was transformed into dust by severe drought and wind erosion."

This Convention also includes assessments of the current and future effects of climate change on water supply and quality. The Convention notes that in the Canadian Prairies, global warming could have a dramatic impact on agricultural practices, particularly through increased aridity. Research is being conducted using new technologies such as remote sensing and geographic information systems to assess risks, evaluate the state of ecosystems, and devise improved land-use practices responsive to a changing climate. Satellite imagery acquired from repeated overpasses provides a valuable source of data for mapping the changing condition of crops and soils, with radar sensors offering an all-weather capability that ensures dependable data acquisition.

The final major chapter of Canadian environmental law — as was also the case in Great Britain and the United States — was shaped by the rise of the environmental movement in the 1960s and 1970s, prompted in large measure by the 1962 publication of Rachel Carson's environmental exposé Silent Spring.

British environmental law for the first half of the 20th century was rather scattershot, protecting everything from air quality to game animals. Water pollution was addressed in some laws, but the focus remained on air pollution because of its impact on everyday life, especially in London. One of the most important actions taken by the British government was the Clean Air Act of 1956, enacted as a direct response to the Great Smog of 1952. This environmental disaster, brought about by a combination of specific weather conditions and long-term pollution, killed over 4,000 people in London. The Act established "smoke control areas" in certain cities and towns where only "smokeless fuels" could be burned. Modern environmental protections in the UK arose in large part from this law, which gave birth both to further air pollution legislation and to a more integrated environmental policy.

In the decades since the 1960s, environmental law has become increasingly integrated — not only among the regions of nations and between nations, but also in terms of recognizing the ways in which different aspects of the environment affect each other. However, some legislation remains keyed to particular aspects of environmental protection, such as the prevention and treatment of water pollution.

Environmental policy in the United Kingdom is carried out both directly through laws and slightly more indirectly through a number of regulatory bodies. The principal agencies given responsibility to protect the environment are the Environment Agency (governing England and Wales), the Scottish Environmental Protection Agency, the Department of the Environment in Northern Ireland, and local authorities.

Even as late as the Deposit of Poisonous Wastes Act 1972, however, there was still a significant focus on single-issue laws. This law was described as "An Act to penalise the depositing on land of poisonous, noxious or polluting waste so as to give rise to an environmental hazard, and to make offenders liable for any resultant damage; to require the giving of notices in connection with the removal and deposit of waste; and for connected purposes."

The current laws covering water pollution and other environmental issues in the United Kingdom are connected to European laws, and have been since the United Kingdom joined the European Community in 1972. At that time, the EC expressed environmental policy through a series of single-issue directives that have over time been largely replaced by more integrative policies. The United Kingdom, along with Canada, is also a signatory to a number of different international agreements concerning environmental policy.

Environmental law in both the United Kingdom and Canada was expanded greatly in the last years of the 20th century, due in large measure to concerns about climate change. These laws were not water protection or pollution laws per se, but they integrated issues of water use. In both nations, these environmental laws are necessarily supplemented by the actions of individuals and advocacy groups, as well as by responsible behavior on the part of corporate officials.

Conclusion: Converging Legal Traditions and Future Challenges

Canadian — and specifically Ontario — law and British law regarding water pollution and environmental issues in general are similar to each other. This should not be surprising given the countries' shared history and the common reservoir of law that they draw upon. Moreover, there are scientific issues that tend to bring the two sets of laws together, since while water pollution always reflects local conditions it also follows general scientific principles and admits of broadly similar remedies. As environmental law has become increasingly integrated across issues and nations, the legal traditions of the two nations have grown even more aligned as they have become signatories to many of the same international conventions and protocols.