Written by Theresa McClenaghan, CELA Counsel and Executive Director and Richard Lindgren, CELA Counsel
The December 2019 annual report by the Auditor General of Ontario has focused public and political attention on the need for effective provincial action to reduce greenhouse gas emissions.
However, in another key passage, the report also raises red flags about drinking water safety in many communities and First Nations across Ontario that are not served by municipal drinking water systems.
For example, the Auditor General concludes that “significant risks remain for Indigenous communities and areas outside of Conservation Authority boundaries, as well as private wells, which in total serve about 18% of Ontario’s population.”
In making this finding, the Auditor General notes that Ontario’s Clean Water Act (CWA) has helped protect water sources that supply municipal drinking water systems.
Unfortunately, this legislation does not yet apply to non-municipal systems such as private residential wells. Therefore, the CWA does not currently require mandatory protection of groundwater used by well clusters in hamlets, villages and towns, even though such aquifers may supply drinking water for hundreds or even thousands of residents.
It is clear that this risk-laden situation has been allowed to continue under successive provincial governments in Ontario.
However, Premier Ford and his cabinet colleagues now have an opportunity to end decades of inaction by extending the CWA to non-municipal drinking water systems, and substantially improving Ontario’s Regulation 903 (Wells) .
Notably, the Auditor General’s latest report is not the first time that her office has expressed serious concern about threats to the drinking water consumed by some Ontarians.
In 2014, the Auditor General reported that “over a third of the water samples from private wells tested positive for bacteria including E. coli. If private wells were held to the same safety standard used for public drinking water systems, water from these wells that tested positive for bacteria would be considered unsafe to drink.”
The Auditor General therefore recommended that the Environment Ministry “should consider the feasibility of requiring source protection plans to identify and address threats to sources of water that supply private wells and intakes.” Several years later, this important recommendation still has not been acted upon by the Ontario government.
Similar findings were made by the former Environmental Commissioner of Ontario (ECO) in her final environmental protection report to the Legislative Assembly in 2018.
This ECO report confirms that the source protection framework under the Clean Water Act “has not been applied to most of northern Ontario, most First Nation communities or to private wells or other non-municipal drinking water sources. These gaps leave some Ontarians vulnerable to unsafe drinking water.”
Over the years, the ECO has also been critical of the ongoing inadequacy of Regulation 903, which establishes requirements for water well construction, repair and abandonment across the province.
In addition, the ECO has described Regulation 903 as “severely flawed,” and rebuked the Ontario government “for neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells.”
To date, however, only minor changes to Regulation 903 have been passed or proposed. Inexplicably, expert recommendations offered in 2005 by the Ontario Drinking Water Advisory Council on how to strengthen disinfection requirements under the regulation have not been fully implemented by the provincial government.
In these circumstances, further reforms are clearly needed to protect the health of all Ontarians, not just those who are served by municipal drinking water systems.
To expedite such reforms, CELA has recently filed a formal Application for Review of the CWA and its implementing regulation, pursuant to Ontario’s Environmental Bill of Rights (EBR). This EBR Application calls upon the provincial government to revise the CWA in order to extend source water protection requirements to various types of non-municipal drinking water systems that are not currently covered by the Act.
The Environment Ministry must now decide by mid-February 2020 whether it will undertake the review requested by CELA.
However, time is of the essence. As noted by Mr. Justice O’Connor in the Report of the Walkerton Inquiry , “there is no justification for permitting lower public health standards for some residents of Ontario than those enjoyed by others.
This article has been republished with the permission of the authors. It was originally published in the CELA website.
About the Authors
Theresa McClenaghan was appointed as Executive Director of the Canadian Environmental Law Association (CELA) in November 2007. Theresa frequently serves on government and NGO advisory panels on water protection. She has authored various journal papers and book chapters, and is co-author of the three-volume annotated legal publication Ontario Water Law. She holds an LL.B. from Western University (1984) and an LL.M. in constitutional law from Osgoode Law School at York (1999), with a major paper focused on section 35 of the Charter and indigenous environmental governance. Theresa also earned a diploma in Environmental Health Science from McMaster University (1999).
Richard Lindgren is a staff lawyer at the Canadian Environmental Law Association. Since joining CELA in 1986, he has represented individuals, public interest groups and First Nations before tribunals and in the courts, including the Supreme Court of Canada. He was co-counsel for Walkerton residents at the Walkerton Inquiry, and was a member of the Environment Minister’s Task Force on the Environmental Bill of Rights, the Attorney General’s Advisory Committee on Class Action Reform, and the Environment Minister’s Advisory Panel on Environmental Assessment. He edits the Canadian Environmental Law Reports, and has taught environmental law at Queen’s University Faculty of Law and Trent University School of the Environment.