The Common Law

The common law is another avenue to consider when working with the law to protect watersheds.  The “common law” refers to the body of judge-made law and concepts of justice which started in England and which have evolved incrementally in the courts over time as the courts have decided the cases brought before them.  These legal principles are said to have evolved from the “customary” law of the common people. 

 

The Common Law evolves because of the principle that each judge should try to follow the law that was developed by his or her predecessors (and especially by higher courts).  As a judge struggles to apply the common law to a particular situation, he or she will look to see what other judges have done in similar situations, and allow those earlier decisions to guide the current decision.  At the same time, however, some circumstances will be different in each case.  The judge will have to decide whether these differences are significant or not, and may decide the case differently if the circumstances “distinguish” the current case from previous cases. 

 

Once decided, the new decision will in turn become “precedent” – a guiding statement of the law – for later judges trying to decide related issues.  Thus the common law evolves over time. 

 

The Common Law and Watersheds

 

The Common Law has been around for a long time, and it is not possible to provide a comprehensive history or overview of it within these guide pages.  Some areas of the common law have been replaced by statute (for example, there are no longer common law criminal offences) or fallen into disuse.  Much of the common law is not directly related to watershed protection. 

 

The Guide Pages that discuss the common law are related to two main subjects:

 

·          Aboriginal Rights and Title – Just as the “customary” law of the British became part of the common law, so the Customs, Laws and Rights of B.C.’s First Nations are in the process of becoming part of the common law.  This means that First Nations people have various rights to use natural resources and land that they have used traditionally. 

·          Common Law Causes of Action – At common law a person who has been harmed by another has the right to sue for compensation.  While often focused on private property rights, common law rights can be used to protect watershed values. 

Related Guide Pages:

·          Courts.

·          Aboriginal Rights and Title.

·          Common Law Causes of Action.

For more information about Disputes between Individuals:

·          Department of Justice publications: “Canada’s System of Law” and “Canada’s Court System”

·          “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”, by Paul Perrell, looks at how judges reason and when and how they will follow the decisions of other judges. 

·          An Introduction to the Common Law, by Eric Engle

·          “Injunctions and Judicial Review” from the First Nations and Water Use Planning In B.C. Website.