The argument has been raised that a ban on the cosmetic use of pesticides violates an individual's property rights. In my opinion this is not a legally valid argument. As a lawyer I have some understanding of property rights and legal liability. Property rights are not absolute. When you purchase property you acquire "a bundle of rights" but they are subject to legal limitations. The Crown (or government) in most cases owns the mineral rights under your property and controls the sky above it.
Property, in the form of land, is subject to all sorts of limitations. These include zoning, various easements for access, gas, water and sewer lines, and sometimes even a pipeline or a hydro line. Bylaws exist which govern how the property is kept. If you do not maintain the property, you can be fined. If you do not pay your taxes, you can lose it. Your property can also be seized by the Courts if you do not pay your debts. If there is a waterway running through the property "the Crown" owns it and everyone who has access to the waterway has legal rights that you cannot infringe upon. You also cannot infringe upon your neighbours enjoyment of their property with respect to noise, blocking sunlight or by creating a nuisance.
The same goes for putting toxic substances on your property that could adversely affect your neighbours. No piece of land is hermetically sealed. What is put on the land affects others. For example if a factory was dumping arsenic on its property, it would pose a risk of harm to neighbouring properties. The toxic substance would no doubt seep into the water table, spread through the air and migrate on to other individual's property. The toxic substance, if not handled correctly, would adversely affect other properties and harm the quiet enjoyment of other individual's property rights.
If damage to health resulted this would create a "tort" or a legal basis upon which to sue the individual creating the harm. In my opinion it could even create a legal basis upon which to sue a regulatory body that was not doing its job in protecting the public, and not enforcing the laws or refusing to take action if there is a known health hazzard. Many companies and individuals have been sued for producing harmful substances and not properly disposing of them. Mercury pollution of northern rivers created a serious health risk and the pulp companies who produced the mercury were successfully sued. Tobacco companies have been successfully sued on this same basis.
It is important to remember that London's Public Health Officer, the individual responsible for our health, has said pesticides "pose a serious health risk to the residents of London." If the body responsible for safe guarding our public health ignores that advice, in my opinion, they do so at the risk of being sued by an individual who can demonstrate that a pesticide caused them harm.
The property owner, the person who applied the pesticide, the manufacturer, and the bodies responsible for regulating the pesticide and protecting the public all could be sued. There is a legal basis for suing them if negligence or some other tort could be established.
Municipalities have been subject to these type of law suits in the past. The City of London was sued because a balcony collapsed and an individual was severely injured. The City was found legally liable because they did not properly inspect the balcony.
At the present time the Canadian government is being sued by former Canadian soldiers who were stationed in Gagetown, New Brunswick. The basis for the law suit is that they were exposed to "Agent Orange," a pesticide, which has been linked the cancers and other aliments that they suffer.
In my opinion, a clear parallel can be drawn to the use of pesticides in our own neighbourhoods. As we learn more about the linkages between pesticides, and other chemicals, and rising rates of cancers, respiratory aliments, allergies, birth defects, and infertility the stronger the imperative to take action.
The Supreme Court of Canada endorsed the "precautionary principle" in the Hudson decision that upheld a pesticide bylaw. The "precautionary principle" suggests that we avoid potential and suspected health hazzards. This is a good rule to govern how we live and if we suspect that something is harmful we should take measures to protect ourselves and reduce the risk of harm. It is this rule that should be applied in the pesticide debate as mounting evidence shows that pesticides are linked to various health problems. Where there is no demonstrated benefit to the use of pesticides and its use is only for cosmetic reasons the precautionary principle should apply.
This is an edited and expanded version of a presentation made by Ed Corrigan at the Environment and Transportation Committee Public Meeting on the Pesticide Bylaw on May 23, 2006.
May 28, 2006 Version, 832 words