Property Rights and Banning Pesticides

From Environment Hamilton Newsletter/ Oct 2007

Environment Hamilton chair Mark Coakley spoke to city council on September 13, 2007 in support of the proposed ban on the cosmetic use of pesticides. Here is the text of his presentation:

I work as a litigation lawyer. A lot of my pro bono environmental law work has been against the city. I hope I won't ever need to do that again. And I am a home- owner who takes pride in my healthy, natural and beautiful lawn.

Some people have been throwing around the term "property rights" in the debate over cosmetic pesticides. Their attitude seems to be "I can do anything I want on my land and my neighbours be damned". That attitude goes against Ontario law and tradition. Property rights are not absolute. If they were, there would be no zoning, utility easements, or fire bylaws. Any homeowner could stage loud heavy-metal concerts on their front lawn every night. "If a man chooses to put filth on his own land, he must take care not to let it escape onto his neighbour's land." The traditional approach to property rights does not protect property use that interferes with a neighbours property rights or with public health.

All rights must be balanced with responsibilities. We have legal and moral responsibilities to our neighbours. Common law property rights support this by-law. First lets talk about trespass. Trespass usually refers to some- one going onto someone else's property without permission. But it also applies to someone who puts a foreign substance like pesticides onto someone else's property. Because of spray drift, rainwater runoff, soil erosion, groundwater contamination, and sticking to the feet of people and dogs - almost all the pesticides put on one property will move onto someone else's property. That is trespassing. 

It does not matter that some people claim pesticides are safe. A Canadian judge wrote: "To throw a foreign substance on the property of another ... is an unlawful act ... This ... does not involve any question of whether or not the spray may have been toxic or non-toxic, because even to have thrown water, or garbage, or snow, or earth tippings, or any substance on the property would equally have amounted to an act of trespass ..." [1] In the past, most trespass cases dealt with substances that could be seen. Invisible poisons posed evidence problems. But new technology can identify even tiny amounts of chemicals, so pesticide trespass lawsuits are now easier to win.

Lets talk now about nuisance. Nuisance is something that damages someone's land or nterferes with their quiet enjoyment of their land. In 1611, a British judge said: "Every man must so use his own property, as not to do damage to another." [2] Another old British case said: "If a man chooses to put filth on his own land, he must take care not to let it escape onto his neighbour's land." [3] A recent Ontario case said: "He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property. No use of property is reasonable which causes substantial discomfort to others or is a source of damage to their property." [4] It is not a defence to say that the activity causing the nuisance is legal, or that other people are doing the same.

What about property owners who enjoy using cosmetic pesti- cides? Isn't stopping them from doing what they enjoy a kind of nuisance? No. Allowing controversial chemicals to leave your property - like having a heavy metal concert on your lawn at night - is not "quiet enjoyment". With nuisance, you have to prove harm. The long-term health risks from pesticides are a form of harm, but in court they pose evidence problems. But the short-term health risk is easy to prove. Acute pesticide poisoning is caused by inhalation, eating, or direct contact with skin. The effects are immediate. Hamilton has over 65 reported cases of acute pesticide poisoning per year. More than half are kids. [5]

Pesticides getting onto my property harms my property, especially since it is used by kids and a pregnant woman. I ask you to protect residential areas from chemical trespass and chemical nuisance. This responsible by-law supports traditional property rights.

[1] Friesen v. Forest Protection Ltd., New Brunswick, 1976]
2] Tenant v. Goldwin, England, 1703]
[3] Ballard v. Tominson, England, 1885]
[4] Russel v. Ontario Malleable Iron Co., Ontario High Court, 1952]
[5] Based on numbers from Ontario Poison Information Center from 2005, compiled by Professor David Boyd and the David Suzuki foundation.