Torts are civil wrongs or a breach of a duty, other than a breach of contract, that are generally addressed through the payment of damages. Common examples include the torts of trespass or negligence. Tort law may also be one way to enforce the protection of the rights of nature, once established. We will consider how some existing tort theory could be applied to the rights of nature, below. To begin we will briefly discuss the tort of public nuisance and how it may be used to protect the rights of nature.

Public Nuisance

The tort of public nuisance is defined as “any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience.” ¹ It is different from the tort of private nuisance which is the “unreasonable interference with the use and enjoyment of land by its occupier.” ²

The test for public nuisance is set out in the Supreme Court of Canada decision of Ryan v Victoria (City). ³ In this case, the Supreme Court specifies that a finding of public nuisance is a “question of fact” after the consideration of many factors including: ⁴

• The inconvenience caused by the activity;
• The difficulty involved in lessening or avoiding the risk;
• The utility of the activity;
• The general practice of others; and
• The character of the neighbourhood.

For example, in the Ryan v Victoria decision, the Supreme Court of Canada concluded that the “tracks created an unreasonable interference with the public’s use and enjoyment of Store Street and therefore constituted a public nuisance.” ⁵

How can public nuisance protect the rights of nature?

In our current system, pollution can be classified as a public nuisance if a public right is being interfered with. For example, if a stream is being polluted, it could be considered a public nuisance if a number of riparian rights holders (those with legal personhood) were impacted by the pollution. ⁶ However, if nature had rights, this could be extended to protect those rights in the same way it protects the rights of current rightsholders.

To take the example of the polluted stream – if the stream had rights to health, could the stream be a plaintiff in an action for public nuisance? Theoretically, this could apply regardless of whether human, or corporate, interests were impacted by the environmental harm.

Parens Patriae: The Government as Plaintiff

Often when we think of tort actions, we think of a suit brought by an individual or group against another or against the government. However, another option to enforce or remedy harm against the rights of nature is through an action brought by the government – the government as the plaintiff. One way this can be done is under the doctrine of parens patriae.

The doctrine of parens patriae awards governments the standing to bring actions in tort for the protection of public interests. In the United States, the Supreme Court has set out a 3-part test for a finding of parens patriae as described in Alfred L Snapp & Son, Inc. v Puerto Rico. ⁷ The Court finds that for the government to properly invoke its parens patriae rights it must demonstrate:

• an interest apart from the interests of particular private parties;
• a quasi-sovereign interest; and
• an alleged injury to a sufficiently substantial segment of its population.

If these three factors are met, the government may rely on the parens patriae doctrine to uphold certain alleged rights.

Use of the Parens Patriae Doctrine

In Canada, the parens patriae doctrine is primarily employed when the Court purports to speak on behalf of a child or other person deemed not to have the capacity to represent themselves. These individuals hold rights, but may not be able to enforce them. Instead, the Court steps in to enforce these rights on their behalf. This could be scalable to the rights of nature. A river, species at risk, or native grasslands does not have the capacity to represent itself in court and, as such, it may be necessary for the government to have the capacity to act on its behalf and in its purported ‘best interests.’ However, we have not yet seen this in action.

The Supreme Court of Canada, in British Columbia v Canadian Forest Products Ltd. has recognized the potential of the Canadian government to sue as parens patriae for compensation for public nuisance or negligence that caused damage to public lands. ⁸ This decision also considered the application of the public trust doctrine in Canada.

The facts of this case arose after a forest fire swept through Stone Creek, British Columbia burning approximately 1,491 hectares of land including Environmentally Sensitive Areas. ⁹ The Crown claimed damages for, in part, the loss of trees set aside for environmental reasons. ¹⁰ In their argument, the Crown argued that “it sues not only in its capacity as property owner but as the representative of the people of British Columbia, for whom the Crown seeks to maintain an unspoiled environment.” ¹¹ However, the majority did not rule on whether the “Crown as owner of Crown forests seeking compensation on the same basis as any other landowner” was valid and“a claim on some broader ‘public’ basis was not fully argued in the courts below. ¹²

The dissent disagreed, arguing that the “Crown, in seeking damages, is still fulfilling its general duty, its parens patriae function to protect the environment and the public’s interest in it” and that the damages are not limited to those “that a private landowner might receive.” ¹³ While the dissenting judgment does not form the law it does suggest potential openness of the court to future arguments.

American Examples

One interesting example of the parens patriae doctrine upheld in American law is the 1973 decision of Maine v M/V Tamano. ¹⁴ In this case, the State of Maine brought a claim against a tanker after an oil spill caused damage to the waters of Casco Bay. The State sought damages “in its parens patriae capacity as owner and/or trustee for the citizens of the State of Maine of all of the natural resources lying in, on, over, under and adjacent to its coast waters” and “seeks to recover for damage to such waters and the marine life therein.” ¹⁵ The Court noted in their decision that “a State has sovereign interests in its coastal waters and marine life, as well as in its other natural resources, which interests are separate and distinct from the interest of its individual citizens.” ¹⁶ In the end, they allowed Maine to proceed with the parens patriae action. ¹⁷

Decisions like this suggest that the framework for the government to act on behalf of nature already exists and may be harnessed if a framework for rights of nature were established.

Injunctions

In most cases, if a cause of action is brought in a civil proceeding, for example through the tort of public nuisance or under the parens patriae doctrine, the remedy awarded to the plaintiff is a payment of damages. Under certain circumstances, a payment may help to restore damage done to nature but in other circumstances, damage may be irreparable. In those cases, the plaintiff needs a tool to stop the harm before it begins. This is where an injunction comes in.

Injunctions are court orders which require one party “to refrain from some action harmful to the party seeking such relief (prohibitive injunction), or perform a positive act to remedy a past wrong (mandatory injunction). ¹⁸ In the case of protecting or enforcing the rights of nature, injunctions will be most important to prevent harm from occurring in the first place.

For example, quia timet injunctions can be granted by the courts before any harm has occurred and, as such, are preventative. In order to be granted such an injunction, the plaintiff must show “a very strong probability upon the facts that grave damage will accrue to him in the future.” ¹⁹ This type of injunction can also be granted before the full trial or hearing on the merits of the case takes place. ²⁰ If the plaintiff wins at trial, the injunction can be made permanent, thereby protecting the rights of nature in the long run.

The test for an interlocutory (before the full trial) injunction has been established by the Supreme Court of Canada in the decision of RJR MacDonald Inc. v Canada. ²¹ The test is as follows:

1. the applicant must show a serious issue to be tried;
2. the applicant must show irreparable harm will result if the injunction is not granted; and
3. the applicant must show that greater harm or inconvenience will result if the application is not granted, than would result if it were.

If nature were granted rights, it would be important that the representatives of these rights had the opportunity to bring injunctions to stop an infringement before it occurs.

We consider other options for remedies in our section Implementation of Rights of Nature: Remedies and Compensation.