Law Times

Page 12 November 17, 2014 • Law Times www.lawtimesnews.com Walkerton followup Source protection plans coming into place By arshy mann Law Times ourteen years after the tainted-water tragedy in Walkerton, Ont., and eight years after the Clean Water Act became law, one of the most significant ef- forts to keep Ontario's drinking water safe is starting to come into effect. The first three source pro- tection plans came into force on Oct. 1 while the Ministry of the Environment and Climate Change has approved or is con- sidering a number of others. The Walkerton commission of inquiry, led by justice Den- nis O'Connor, recommended the creation of the plans. They assess threats to drinking water and provide municipalities with tools to deal with them. Stakeholder committees that included municipalities, in- dustry, First Nations, and other concerned groups developed the plans. Julie Abouchar, a partner at Willms & Shier Enviro nmental Lawyers LLP, served as assistant commission counsel during the Walkerton inquiry. She says the source water protection regime is a significant step forward in preventing another Walkerton- like tragedy. "The well was in Walkerton, but the aquifer from which the contamination came was in a neighbouring municipality," she says. "So there was a disconnect between the people who had control and were supposed to be looking after the drinking water system and the jurisdiction that could control the land use next door." The source water protection plans deal with watersheds in- stead of municipalities in order to avoid that kind of lack of co- ordination. In total, committees will cre- ate 36 source protection plans with many of them likely to ob- tain ministerial approval within the next year. While the stakeholder com- mittees created the plans, the provincial government pro- vided significant technical gui dance, says Abouchar. "So it's not like you have a group of people who are out there doing things on their own without the guidance," she says. Once the committees de- termined the various threats to the watersheds, they outlined different policy tools that could help abate them as well as who's in charge of implementing the policies. These tools vary from be- ing not very restrictive to quite powerful. "The idea is to get the job done, to get source water pro- tected with the least restrictive tool possible," says Abouchar. Most of the plans feature some level of education and out- reach, but more forceful mea- sures will also be in place. Abouchar says municipal risk management officers will be able to order facilities to take certain precautions in order to prevent significant threats. The plans could also prohibit certain activities near watersheds, but Abouchar says that power will generally apply to areas that are very close to wellheads. Even though only a handful of the 36 plans have come into force, Abouchar says much of the work is already ongoing in municipalities. "A lot of municipalities are already gearing up. They've hired risk management officers, they're well aware of what those policies are, and they're doing the work," she says. Industries located near well- head protection areas should pay close attention to what's in the plans and identify any poli- cies that may affect them, says Abouchar. "They ought to be looking to see what tools are being imple- mented. Is it mostly education and outreach or is it more of a regulatory tool?" she says. Mark Mattson, founder and president of Lake Ontario Wa- terkeeper, also participated in the Walkerton inquiry. Mattson notes O'Connor had two general sets of recom- mendations that came out of the Walkerton inquiry: first, that governments needed to do a better job of identifying and preparing for threats to drink- ing water; and second, that they should enforce environmental law more strictly. While Mattson believes the source water protection plans are important policy tools, he says they're not a substitute for traditional environmental legis- lation. "I think it's really impor- tant that we keep in mind that these laws are the most clear and the most efficient ways to deter pollution generally," he says. "There's this general percep- tion that these threat assess- ments and these policy process- es are somehow an alternative to enforcing environmental laws and I just want to be very clear that they aren't." Mattson says the plans will re- main imperfect because the com- mittees craft them over several years and often before some envi- ronmental threats materialize. He notes that when the pro- cess to create source water pro- tection plans began in 2007, the issue of transporting hazard- ous materials through pipelines wasn't really on the public radar. "It wasn't part of the original source water protection plans in Ontario because they didn't know of that threat," he says. The exponential growth of oil by rail is another area that has gotten short shrift, according to Mattson. "I think it really is impor- tant that people don't think that these source water protection plans and the Clean Water Act are in any way a replacement for the government's role in en- forcing environmental laws," he says. And while the province has been moving forward on creat- ing a source water protection re- gime, Mattson says the loosen- ing of environmental legislation at the federal level is important as well. "Federal environmental law has been rewritten in the last three years," he says. Mattson points to the Fisheries Act and the Navigable Waters Protection Act as examples of legislation changed by the government. According to Mattson, gen- eral prohibitions keep the onus on operators and industry to en- sure they're not having a nega- tive impact on the environment. But he fears the responsibility is increasingly falling to the public and the government. "We're taking that responsi- bility away from the ones who have all of the information and knowledge about what's really going on," he says. LT FOCUS CANADA LAW BOOK ® Key cases and regulatory guidance in environmental law to make your case The Prosecution and Defence of Environmental Offences Stanley D. Berger Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 From the initial investigation through to trial and sentencing, The Prosecution and Defence of Environmental Offences provides you with the necessary materials to make your case. This resource draws on case law and directives from across the country, the U.S. and Europe and key regulatory guidance documents used at both the provincial and federal levels. Find current and complete guidance from reported and unreported cases on: • Due diligence • Sentencing • Directors' and officers' liability • Constitutional and Charter arguments • Environmental audits • Evidence and procedural issues • Solicitor-client privilege claims • Interviewing suspects Per Masse J. in R v. Sinclair (2009 ON SC) According to Stan Berger, the learned author of The Prosecution and Defence of Environmental Offences: Jail terms are generally considered by prosecutors and imposed by courts for behaviour that exhibits the hallmarks of crime — that is, deliberation, recklessness, stealth and/or significant harm. Order # L92072-257-65203 $353 2 volume looseleaf supplemented book 3-5 supplements per year Anticipated upkeep cost – $231 per supplement Supplements invoiced separately 978-0-920722-57-1 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00220YD-A47298 F "There are a number of legitimate municipal issues that have to be ad- dressed, but they can't be used to prevent the building of turbines." Gillespie, however, points to Suncor Energy Products v. Town of Plympton-Wyoming, an Ontario Superior Court of Justice decision from earlier this year that allowed municipalities to enact bylaws regulating wind turbines as long as they don't frustrate the prov- ince's intentions. "The Plympton-Wyoming bylaw parallels the pro- vincial regulation but allows the municipality to enforce it," he says. "By giving that power back to a municipality, that's not conf licting with the province, that's not frustrating the province. That's simply allowing the provincial standard to be properly enforced." Saxe believes once wind energy establishes itself in Ontario, the opposition will start to decrease. "There is some optimism in the wind energy community that as people in Ontario have more experience living with the turbines, they will discover that really they're not that scary after all, as has happened in other jurisdictions that have high levels of wind energy," she says. "But in the meantime, an enormous amount will have been spent on lawyers." Gillespie, though, notes the case law around green energy is still developing. "Regulatory control has been around for decades, but the green energy sector has only been around for a few years and there's still only a couple of dozen cases," he says. "The final chapter has yet to be written." LT Municipalities stymied Continued from page 10

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