January 24, 2001

Private Property Rights in Water: The Solution to Coerced Chlorination in Rural Community
by Ilana Mercer

Set in the bucolic southeastern corner of British Columbia is the town of Erickson and its 850 households. Since early 1992, the residents have been defying a chlorination order issued by the Medical Health officer. From manning a blockade, to mounting a constitutional challenge, the tiny community has been indefatigable.

While keeping the waters of Arrow Creek pristine is at the heart of the community's efforts, the struggle transcends mere chlorination. Therefore it's not my intention here to wade into the validity and reliability of studies attesting to the toxicity of the chemical. Neither is it my brief to point out the sensible claims the residents of Erickson are making. Who can argue that, in making water potable, enlightened technologies such as ultraviolet light, micro filtration or ozonation are preferable to chlorine?

But first, who are the adversaries in the saga, and why the oil-and-water relationship between them.

There are the residents of Erickson who formed the Water Action Group (WAG), and forced the province's Medical Health officer to roll back the chlorination order. There is the local municipality, termed the Erickson Improvement District (EID), whose trustees got behind the residents and refused to chlorinate.

Behind the opposing parapet are the BC government and its Medical Health officer. (A peripheral character is NDP MLA for the region, Agricultural Minister, Corky Evans, note-worthy only for failing his constituents)

Dr. Andrew Larder has recently ascended to center stage in the altercation by demanding that BC's Municipal Affairs Minister dissolve by government fiat the representative improvement district and take over water delivery to the community. Dr. Larder apparently is driven to distraction by the lack of reason the residents are displaying, and has puffed that the local folks make him feel "like Alice in Wonderland".

Dr. Andrew Larder's paternalism invokes another episode of public health hubris. Reasoning more stunted than that of the health administrators who promoted coerced fluoridation is hard to come by. The population was to be "mass medicated" with a standard dose of a toxic pesticide, because the stuff reduced "dental cavities in kids aged 5 to 9". Assorted dental dictators even made a song and dance about holding their conferences only in "medicated" cities.

But I digress: The Municipal Act gives the EID control over a plethora of waterworks and irrigation licenses, but the provincial government and the good doctor retain jurisdiction over potable and domestic water. The crucial point being that the B.C. 1979 Provincial Water Act vests water property in the provincial Crown. The rights to the use of water belong with the Crown.

There are some sensible--if few--environmental groups who understand that private property rights are the single best way to protect a resource, not least against what economist Garret Hardin termed "the tragedy of the commons". When you own something privately, you take care of it. When it is owned in common, it is plundered. Look no further than to Canada's forests and fishery.

Think tanks like Environment Probe point out that strong property rights, the kind that empower property owners to ensure that their rights are not encroached on by other interests, act to protect the environment. They further elucidate how, over decades, governments have circumvented the ability of ordinary people to protect their environment by eroding common law property rights and usurping them with government statutes and regulations, attached to which are lower environmental standard as well as a limited liability. If ordinary people are to be so empowered, common law property rights must be rehabilitated. These think tanks unfortunately do not go far enough.

Take riparian law, a once powerful branch of the common law, which protected waterfront property owners by conferring on them a right to enjoy unaltered water quality and quantity. But what good does recourse to riparian, nuisance, or trespass common law do for the Erickson community in protecting their water? The residents are not riparians; they do not own the land along the water property. Neither do they have title in the water. For some unfathomable reason, water property is vested perforce in the Crown. Ditto for about 90 percent of the landmass in Canada.

It's as clear as the water in Arrow Lake that the easiest solution to the community's standoff with a distant administration would be private rights in the water upon which they depend for life and livelihood. The court challenge launched on behalf of the community makes an appeal to Charter rights to life, liberty and security of person. This is ironic given that, by omitting property rights, the same Charter fails to recognize that throughout history, private property has been the best bulwark of both liberty and security and a countervailing force to state power.

Ideally, there would be a complete transfer of title to the residents with no government interference in the regulation of the resource. This, however, would compel the residents to fund their preferred purification system, perhaps through eco-tourism, but the possibilities are many. The idea being to avert what economist Thomas Borcherding calls "the political commons", whereby when government regulates private land, owners tend to make a rush for publicly provided transfers.

We accept that native bands have control over the water on their land. Is it such a stretch then to bestow the same right on the residents of Erickson? Have they not, in a manner, homesteaded the rights to the Lake? The 2000 members of the Nisga'a Indian band have been granted private rights over the Naas River and other streams under the munificent Nisga'a agreement. (Although the BC government hastens to add that these licenses do not constitute property in water, but you know the saying: If it walks like a duck...etc.)

Why is it so far-fetched to grant the 2000 residents of Erickson the same autonomy?

© 2001 Ilana Mercer

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