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(Susan Hare)
(Susan Hare)

Neil Reynolds

How logging gave industry a licence to pollute Add to ...

For a decade or more, lumber barons Boyd Caldwell and Peter McLaren fought it out, no holds barred - in courthouses, in federal and provincial legislatures and, more physically, in the hinterland taverns of Eastern Ontario's rough-hewn Lanark Highlands, where the river men who moved logs down the Mississippi River slaked their prodigious thirst.

The Mississippi (Algonquin for "Great River"), a 200-kilometre tributary of the Ottawa River, was itself as treacherous as the celebrated combatants. (It falls more than 350 metres before it reaches its destination.) Though largely forgotten now, the Caldwell-McLaren feud once split the entire country in a controversy it couldn't resolve.

In the end, Britain resolved it. In 1884, precisely 125 years ago, the British Privy Council - Canada's court of last resort - ruled that Caldwell had a legal right to move logs through log slides that McLaren had built on the Mississippi at a strategic spot called High Falls near McDonald's Corners. And the court ruled further that he didn't need to pay McLaren a toll fee, either.

Caldwell and McLaren held large timber tracts along the Mississippi and both operated large sawmills. This was big business. Mississippi loggers floated 25 million board feet of lumber downriver to Ottawa every year.

On his stretch of the river, McLean built extensive "improvements," as dams, log slides and sluiceways were regarded at the time, at his own expense. McLaren held that Caldwell couldn't move logs through his log slides without his permission and without paying a toll. In defence of property rights, the federal government vigorously supported him.

Caldwell held that McLaren didn't own the river and couldn't restrict other people's use of it, whether they used McLaren's improvements or not. In defense of public access, the provincial government vigorously supported him.

Hailed as a victory for people's unrestricted right to use Canadian waterways, for personal or commercial purposes, the judgment simultaneously resolved a constitutional conundrum. It identified rivers as a provincial responsibility and helped reconfigure the nascent nation as a decentralized state - distinctly contrary to Sir John A. Macdonald's own vision of the country he had so painstakingly put together.

The Privy Council vindicated Ontario. In 1881, Premier Oliver Mowat had passed legislation that asserted provincial jurisdiction on rivers within its boundaries. Macdonald had disallowed it. In 1882, Mowat had passed it again. Macdonald had disallowed it again. In 1883, Mowat had passed it a third time. And Macdonald had disallowed it a third time.

Following the judgment, Mowat quickly passed his Ontario Rivers and Streams Act for a fourth time. The law declared all Ontario waterways accessible - without toll - for everyone.

Caldwell moved quickly, too. Hiring a crew of 100 men, he moved downriver 60,000 logs (worth millions of dollars in 2009 currency) that the conflict had left stranded.

Happily, the feud itself ended soon after - the reconciliation assisted when a "Caldwell girl," as the story goes, met a "McLaren boy" at a dance in McDonald's Corners, fell madly in love - and, with the blessing of the once-embittered families, got married. Substituting only loggers for farmers, the script here fairly hollers Rogers and Hammerstein: Ontario! Or more accurately: Lanark!

You could say the people loved the Privy Council decision but the rivers didn't. The fact is that courts have a better record of protecting rivers than legislatures - as Ontario once again confirmed.

As passed down in British common law, riparian rights severely limit the pollution that courts will permit.

Environmental law professor Jamie Benidickson (University of Ottawa) summed up the record of the courts in the 19th century in his authoritative 1983 essay, "Private Rights and Public Purposes in the Lakes, Rivers and Streams of Ontario, 1870-1930." He concluded: Upper Canada's high courts "protected the riparian rights of riverfront property owners against loggers and sawmills" - even as they protected the use of rivers as public highways.

More often than not, on the other hand, governments tolerated polluters, preferring dirty jobs to clean water. Mowat himself exemplified the dichotomy.

As a legislator in Upper Canada in 1859, he sponsored a law to permit sawmill owners to flood the fields of upstream property owners provided they offered some compensation for the land they swamped.

As a judge in 1870, though, he ruled that a sawmill owner was liable for damages even though the dam he built caused no damage. Here, Mowat was obliged by precedent to uphold the riparian rights of other property owners - whether they had suffered injury or not.

As Ontario Premier in 1885, a year after the Privy Council decision, Mowat passed a law "to protect the owners and operators of sawmills who throw sawdust and refuse into the Ottawa River from [legal]action or injunction whenever the Lieutenant-Governor determines that the public interest so requires."

In other words, the premier himself would determine which sawmills would be permitted to keep polluting and which sawmills would be forced to stop. Thus began the modern era in which the law provides industry and government itself with licences to pollute whenever a provincial premier determines that the public interest so requires.


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