By Theresa McClenaghan, Executive Director and Counsel, and Joseph F. Castrilli, Counsel, Canadian Environmental Law Association
As experts from 80 countries gathered in Toronto for an international conference on drinking water convened by the American Water Works Association (AWWA), recently enacted Ontario laws threatened the framework for protecting drinking water sources adopted after the Walkerton tragedy of two decades ago.
In May 2000, seven people died and over two thousand more were made ill in Walkerton, Ontario when municipal water wells were contaminated by manure runoff following heavy rains, and water treatment, monitoring, inspection, and notification measures proved inadequate. The tragedy triggered a two-year provincial commission of inquiry into the causes of the contamination, identified the need to reform provincial drinking water laws and institutions, and resulted in a spate of legislation to implement commission-recommended reforms.
Yet two decades later, the Ontario legislature appears to have forgotten the lessons of Walkerton.
Two recent enactments, Bills 97 and 23, both passed by the Ontario legislature in the last six months, seem to go out of their way to undermine existing laws, policies, and agencies created to prevent threats to drinking water following the Walkerton tragedy, as well as pose significant problems for vulnerable populations across the province.
Bill 97, which received Royal Assent on June 8th of this year, is a direct attack on protections for drinking water sources authorized under the province’s 2006 clean water law. Bill 97 will allow ministerial zoning orders under the province’s land use planning legislation to declare that “significant threat policies” under the Clean Water Act do not apply to certain lands, other than Greenbelt lands. Significant threat policies are defined under the clean water law as policies in a source protection plan for an area identified in an assessment report where past conditions pose, or future activity could pose, a significant threat to drinking water. Bill 97 is not unlike an earlier bill, Bill 66, introduced in 2018 but eventually withdrawn by the provincial government. Bill 66 would have amended land use planning legislation to make inoperative clean water law provisions that require provincial and municipal decisions to conform to source water protection plans that address significant drinking water threats.
The clean water law was one of the laws enacted by the provincial legislature in the mid-2000s to protect drinking water sources from contamination in the aftermath of the Walkerton tragedy.
Bill 23, which received Royal Assent on November 28, 2022, enacts a series of measures that undermine the role of conservation authorities to protect watersheds from ill-advised activity. The Bill 23 measures include:
- allowing development in areas that are hazard lands or wetlands, if otherwise approved under provincial land use planning law;
- removing conservation of lands and pollution as considerations in conservation authority permit decisions; and,
- restricting the ability of conservation authorities to enter into agreements with municipalities to review development applications on behalf of municipalities.
Each of the Bill 23 changes strike at the heart of the ability of conservation authorities to assist municipalities during the municipal planning process to control non-point sources of water pollution. Because conservation authorities are often designated as source protection authorities under the 2006 provincial clean water legislation enacted after Walkerton, the Bill 23 measures raise questions as to the point at which such changes to the role and effectiveness of conservation authorities under land use planning and conservation authority legislation will begin to impinge on, or interfere with, their role as protectors of drinking water sources under the provincial clean water law.
The time to ask and answer these questions is now before the province blunders into Walkerton Version 2.0.
CELA’s PowerPoint presentation at the AWWA conference is accessible here.