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#BTColumn – The right to ambient air

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Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today.

by Ian A. Marshall

As a parent of three, “Grab the children let’s go someone has just started a fire” was oft repeated in my household as I was forced to evacuate my children as some inconsiderate person started up a bonfire in the district.

I am sure others in our society can attest to this.  I was fortunate in that I had the option of relocating; however, I am sure there are many children and adults alike who have had to suffer through episodes of backyard burning.

Traditionally, the indiscriminate burning starts during this dry season and already my nostrils have been assaulted by wisps of smoke.

This has motivated me therefore, to submit this letter with the hope that we could get legal traction on this issue of indiscriminate burning and draw attention to the fact that ambient air quality must be elevated to that of a basic human right. The issue of indiscriminate burning either for recreational purposes (bonfires) or as a method of domestic
solid waste management (backyard burning), is one which has challenged traditional and modern societies.

In terms of the former, bonfires were, and continue to be, associated with activities like Guy Fawkes Day, fireworks displays particularly in the United Kingdom, while backyard burning of refuse is a common practice in the Caribbean.   

In both instances, the practice which has survived to the present day severely undermines ambient air quality and puts at risk populations in general but specifically those in the population who suffer from smoke induced asthma and other respiratory conditions.

This point was reiterated by retired paediatrician and allergist, Dr Vincent Hutchinson, who highlighted negatives of smoke, which he said could trigger sudden acute attacks and long-term effects, such as a build-up of inflammation in the bronchial tube, which could cause chronic problems.

Consequently, there have been numerous calls by medical practitioners and concerned citizens alike, for stiffer penalties and legal reform to address the scourge of backyard burning.

For example, President of the Asthma Association of Barbados Rosita Pollard suggested that Barbadians were not taking the effects of the practice of burning seriously, but if stiffer penalties were introduced, people would think twice before starting fires.

President of Citizens Against Burning, Wayne “Poonka” Willock concurred with the sentiments expressed by Pollard and expressed hope that the Government elected in 2018 would take the matter into consideration when drafting any new legislation. Chief Fire Officer Errol Maynard in an interview with Barbados TODAY, indicated that he would be proposing to the Minister of Home Affairs, Edmund Hinkson, that legislation be passed to require permits to burn garbage around their homes.

But what exactly is ambient air quality and why should it be an area of concern? First the what, ambient air is the air in its natural state when it is not contaminated by airborne pollutants.

It contains 78 per cent nitrogen, 21 per cent oxygen and one per cent of a combination of carbon, helium, methane, argon, and hydrogen. The reality, however, is that ambient air quality as per the foregoing description does not exist.

On the contrary ambient air is constantly being compromised by pollutants of all kinds as the world struggles to make the paradigmatic shift from fossil fuels to renewables.

This brings into focus the question of why ambient air quality or lack thereof, should be addressed with urgency. The American Lung Association has indicated that particulate pollution triggers asthma attacks, heart attacks and strokes and can kill.

They further asserted that studies of children (in the context of California) found that children who breathe the smoky air during wildfires had more coughing, wheezing, bronchitis, and were more likely to have to go to the doctor or the hospital for respiratory causes especially from asthma.   

Two key observations make the foregoing statements by the Lung Association even more alarming; the first, is that according to the Global Asthma Report 2014, asthma may affect as many as 334 million people.

The second, is that Barbados has one of the highest rates for asthma in the world surpassing the United States. In other words, a country with just over 280, 000 people has higher rates for asthma than the United States with a population of 327. 16 million as of 2018.

Evidence to underscore the gravity of the situation as it relates to asthma, comes from an Editorial in the Barbados Advocate which indicated that there were as many as 12 to 14 deaths per year due to asthma and as many as 10,000 children were visiting the Asthmatic Bay of the Queen Elizabeth Hospital annually.

Having given an overview of the scope of the problem the next logical step would be to look at the question of legislative intervention as indicated by the concerned citizenry.

What does the law have to say about indiscriminate burning locally and internationally?  In Barbados, the Health Services Act 1997, outside of s 4 (1c) and s10 (1f), does not contain any express prohibition of the practice.

At common law a person or class of persons is free to bring an action on the ground that the bonfire is a private or public nuisance; however, beyond this remedy there is no statutory provision that deals in a systematic manner with the issue which, one can argue, should be regarded as a public health hazard.

Internationally, the legal treatment of the matter of indiscriminate burning is varied. For example, in the United Kingdom apart from the Highway Act which speaks to fires lit in close proximity to highways and the potential damage to other road users, there is no statutory legislation that expressly prohibits indiscriminate burning.

However, in Ireland, Europe, United States and British Columbia, Canada, there is legislation that specifically addresses the issue of indiscriminate burning.

The State of the Law/Indiscriminate Burning

In the previous sections it was evident that smoke as a pollutant came from bush fires, forest fires and in some cases domestic use of fossil fuels in heaters and such like; however, in the Caribbean and in Barbados specifically, the challenge with smoke comes mainly from indiscriminate backyard burning and a rash of cane and grass fires which occur during what is traditionally called the ‘crop season’ or sugar cane harvesting period. The words of the Chief Fire Officer captured by journalist Julia Bentham are instructive here:

“Chief Fire Officer, Errol Maynard, said there was an overall increase of 147 per cent in the number of fires the BFS responded to up until February 25 this year (2019), compared with the corresponding period last year (2018).

He said the BFS responded to 2, 200 fires last year, of which 1, 500 were grass and rubbish. This trend has not changed as Mr. Maynard said grass and rubbish fires continue to lead the statistics, with 270 grass fires being recorded so far this year, compared with 40 for the same period last year; and 90 rubbish fires this year, compared with 45 last year.

He maintained that most persons who start the fires are either burning garbage or clearing lots and do not realize that their actions are destroying the environment, causing distress to persons, especially those with respiratory issues, and also placing others in danger of losing their homes or even their lives, if and when these fires get out of control.”

This begs the question as to why this state of affairs is allowed to continue like an annual parade.

The author of this paper suggests two reasons, the lack of specific legislation and a regulatory framework, and the challenges associated with addressing the issue through the tort of nuisance, which will be addressed in turn.

The Lack of Specific Legislation and a Regulatory Framework

In Barbados there is no specific legislation that prohibits indiscriminate burning of rubbish or grass or whatever a person desires to burn.  This is although provisions are made for the creation of such legislation and regulatory frameworks to address the issue.  For example, according to the Barbados Health Services Act Cap. 44, S4 (1) The Minister shall be responsible for the administration of this Act, and, without limiting the generality of the foregoing, his functions shall include (as per section 1c) the abatement of nuisances and the removal or correction of any condition that may be injurious to the public health.

In Section 10 (1) it states, The Minister may, subject to negative resolution, make regulations for the proper carrying into effect of this Act, and in particular make regulations (according to 10, 1f) for the prevention, abatement or removal of nuisances and insanitary conditions on premises.

Outside of the Barbados Heath Service Act there is also the Barbados Highway Act [1998] Cap. 289; however, this Act also fails to specifically address the challenges associated with indiscriminate burning.  For example, Section 43 1 and 2 speak only to discharging fireworks on to the highway.

In a nutshell what the legislation indicates is that the Minister of Health has been empowered to create the regulatory framework that would address indiscriminate burning; however, to date it has not been done. Two reasons are proffered for this lapse, the first is the impact of tradition.

In Barbados it is customary, for persons to burn their garbage (especially at Christmas and Easter) as they seek to clean their houses.

Therefore, the culture of tolerating smoke has become entrenched.  Further, in the current economic context where the current political administration is grappling with the provision of an adequate garbage disposal service, one can appreciate why there may be a reluctance to prohibit backyard burning.

The second reason proffered is the limited impact of advocacy to date, and the lack of awareness of the relationship between backyard burning and asthma. For example, in Barbados, the Citizens Against Burning organization which advocates for the end to backyard burning, only has a membership of just under 500 persons.

To its credit the organisation has made strident and repeated calls for an end to the practice; however, to date there has been little more than promises of action.

In Barbados, and indeed generally, legislative reform takes place when an issue has reached a level that could jeopardise the well-being of a significant section of a society, and when the policy makers are made aware of this reality.

To move this issue forward then there would have to be a significant increase in the level of advocacy; however, as one can appreciate advocacy can be a long, drawn-out process; therefore, as the advocacy is being undertaken the suffering of the persons who are adversely impacted by smoke continues unabated.

A more immediate approach to address the problem can be found in the pursuit of a case of nuisance at common law; however, as will be established in the following section, this method is also fraught with its own challenges and hence underscores the role of legislative reform as the ideal option.

Challenges associated with seeking redress through the tort of nuisance

One of the ways in which an aggrieved citizen can get redress for indiscriminate burning is to bring an action in tort for private or public nuisance. According to Gilbert Kodilinye (2015) there are three categories of private nuisance; however, the one which is relevant for this paper is defined as substantial interference with the claimant’s use and enjoyment of his land, for example where the claimant is subjected to unreasonable noise or smells emanating from the defendant’s neighbouring land.

What is significant is that even though the law has clearly defined nuisance, the main problem in the law of private nuisance is in striking the balance between the right of the defendant’s use to his land as he wishes and the right of the claimant to be protected from interference with his enjoyment of his land.

The first problem with this approach to nuisance is the fact that it is premised on the rights of the landowners and the damage suffered must be substantial.

Essentially, unless the person impacted by smoke is a landowner and the injury is substantial, however defined, he/she would be unable bring an action in tort.

Further, this therefore potentially excludes all the children who suffer from asthma (at least the 10000 referenced earlier, who visited the Queen Elizabeth Hospital) who would hardly meet the standard of being deemed landowners, and even if they did, they would have the added burden of producing evidence of their substantial injury.

As noted by Kodilinye (2015) it is easier for a claimant to succeed in tort when he can show material damage since tangible damage can be more easily observed and measured than personal discomfort or inconvenience arising from
noise or smells.

The second problem with private nuisance is that even if the persons impacted by the nuisance of smoke were able to overcome the problems outlined above, the next challenge is that the defendant would not be held liable unless the court deems his conduct to be unreasonable in the circumstances.

In short, the law as it relates to private nuisance trades in the realm of the dubious and offers little hope for persons who suffer from smoke aggravating asthma.

The third problem with nuisance as a remedy is the cost associated with litigation and the protracted nature of legal cases.

An individual who is desirous of pursing a case in nuisance as it relates to smoke has to first retain the services of a lawyer and medical specialist who would be able to adduce evidence of the causative link between smoke and the exacerbation of asthmatic conditions.  This could be a costly operation, especially when one considers that the matter could be in the legal system for a protracted time.

A public nuisance on the other hand is committed where a person carries on some harmful activity which affects the general public or a section of the public. This type of public nuisance is a crime and is actionable by law. For it to be actionable by a private citizen, in the words of George J, that citizen must prove that the damage suffered must be other and greater than that which is common to all.

This type of action presents a similar challenge to that for private nuisance. As was noted earlier, it is premised on landowner rights, and it is easier to prove material damage than personal discomfort or inconvenience.

Further, since public nuisance must reach a criminal standard, one would have to prove that the smoke emanating from a person’s property was so toxic that it resulted in serious injury or death to class of persons in the community.

Overall, in Barbados, it would be reasonable to assert that statute law and the law of nuisance do not provide adequate remedy for persons who suffer from smoke pollution created by backyard burning.

Fortunately, other jurisdictions have provided some insight on how the matter of backyard burning has been successfully addressed and this will be provided in the following section.

Conclusion

Having surveyed the approach to the issue of indiscriminate burning, the attendant issues of pollution, exacerbated suffering for asthmatics, and general legal responses; the question that remains is, what should be the Barbadian response?

This author suggests that the magnitude of the change that is required is one at the policy level; however, policy that is not entrenched in a well- articulated legislative framework will have little efficacy. It is for this reason that legislative reform is touted at the most useful vehicle to effect change.

The proposed plan of action is therefore envisaged as two-part, the first aspect is public education, the second, is legislative change and the corresponding enabling subsidiary legislative framework. It would therefore be appropriate to end by calling on those in authority to bring an urgent end to the scourge of indiscriminate burning, on legal, scientific, and humanitarian grounds.

Ian A. Marshall, PhD, lecturer, Educational Leadership, School of Education, University of the West Indies, Cave Hill Campus.

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