In May 2000, seven people died, and thousands of people fell seriously ill, after bacteriological contamination of a municipal well that supplied drinking water in Walkerton, Ontario.
In the wake of this tragedy, the provincial government established a wide-ranging public inquiry headed up by Mr. Justice O’Connor. His resulting two-volume report recommended sweeping legislative reforms aimed at implementing the “multi-barrier” approach to drinking water safety, and preventing a recurrence of this public health catastrophe elsewhere in the province.
In response to these recommendations, the Ontario Legislature enacted three new laws
- The Safe Drinking Water Act, 2002, which establishes regulatory standards for testing, treating, and distributing drinking water.
- The Nutrient Management Act, 2002, which addresses the application of manure and biosolids to farmland.
- The Clean Water Act, 2006 (CWA), which establishes a participatory, science-based and community-driven planning process for protecting sources of drinking water.
To facilitate the new source water protection regime under the CWA, Ontario established multi-stakeholder Source Protection Committees, developed detailed regulations and technical rules, and provided considerable provincial funding. This initial round of source water protection planning lasted from 2007 to 2015, when the province approved all 22 Source Protection Plans prepared by the local Committees.
These approved plans are now being implemented by the relevant authorities in source protection areas and regions across Ontario. Notably, however, the mandatory policies of these first-generation plans are largely limited to protecting the raw water sources used by municipal residential drinking water systems, which serve about 80% of Ontario’s population.
As enacted, the CWA contains provisions which enable other types of non-municipal systems (e.g. First Nations drinking water systems, or groups of six or more private wells, such as those found in many Ontario towns and villages) to be included in source water protection planning. To date, however, only three First Nations systems were “elevated” for inclusion under the CWA.
Similarly, to CELA’s knowledge, no private well clusters in towns or villages were “elevated” for inclusion in the approved Source Protection Plans. This omission is unfortunate but unsurprising since the province expressly advised Source Protection Committees in 2008 that including non-municipal systems should be “deferred”.
The net result is that the current CWA regime benefits the millions of Ontarians who are already well-protected when they consume water supplied by municipal systems, which, according to Ontario’s Chief Drinking Water Inspector, consistently meet provincial drinking water quality standards.
In contrast, it is well-documented that drinking water supplies in many First Nations communities in Ontario are contaminated and/or subject to lengthy boil water advisories. For example, the province’s recent Annual Report on Drinking Water concedes that “as of September 2016, there were 44 Indigenous and Northern Affairs Canada-funded drinking water systems in 24 First Nations communities with long-term boil water advisories.” While the province has committed to provide “in-kind technical assistance” to First Nations in relation to drinking water, CELA submits that an important first step under the multi-barrier approach is for Ontario to work collaboratively with these communities to develop and fund effective source water protection plans.
Similarly, private well owners in rural settlement areas across Ontario are also largely unprotected by the source protection planning requirements and new legal tools available under the CWA. This has prompted the Auditor General of Ontario to note that:
“An estimated 1.6 million people in Ontario rely on private wells for their drinking water supply. For them, protecting source water is the only line of defence. In 2013, over a third of the water samples from private wells tested positive for bacteria, including E. coli.”
Accordingly, the Auditor General recommended in 2014 that “to strengthen source water protection, the Ministry of the Environment and Climate Change should consider the feasibility of requiring source protection plans to identify and address threats to sources of water that supply private wells and intakes.” However, in her 2016 report, the Auditor General found that the provincial government has made “little or no progress” on this important recommendation.
In CELA’s view, it is inequitable and unacceptable that the current CWA regime has been applied in a manner that only protects source water for some – but not all – residents of Ontario. Accordingly, CELA calls upon the provincial government to take all necessary steps to expand the next round of the CWA planning process to include the wells and intakes which supply water to non-municipal systems.
Clearly, groundwater or surface water sources used by First Nations, towns, villages and hamlets dependent upon non-municipal systems are as potentially vulnerable to chemical or pathogenic contamination as the sources used by municipal systems which supply drinking water to Ontario cities. Thus, CELA concludes that further and timely actions by Ontario (and other levels of government) are required in order to prevent the risk of another Walkerton tragedy.