Intervenor: vol. 27, no. 3 - 4, July - December 2002

Ontario Passes Safe Drinking Water Act

In December 2002, the Ontario government passed the Safe Drinking Water Act (SDWA). The legislation was prompted by Justice O'Connor's Recommendation 67 in the Part II Report of the Walkerton Inquiry, which expressly called upon the provincial government to enact the SDWA.

However, the mere passage of the SDWA does not necessarily ensure that drinking water (and its sources) will be adequately protected across Ontario. In fact, the SDWA fails to include key components of effective drinking water protection, especially the critical "first barrier" of source protection, as described below. There are unresolved concerns about funding, enforcement, and political discretion under the Act, that raise serious questions about whether the SDWA will be sufficiently protective of drinking water quality and quantity in Ontario.

BACKGROUND

Since the early 1980s, CELA has advocated passage of the SDWA in order to rectify the ineffective and highly fragmented legal framework for drinking water protection in Ontario. While numerous private members' bills were proposed from time to time by all opposition parties to establish the SDWA, the Ontario government took no steps to enact the SDWA until well after the Walkerton tragedy.

In June 2000, CELA filed an application under the Environmental Bill of Rights for a formal review of the need for the SDWA in Ontario. Ironically, even in the wake of the Walkerton tragedy, Ontario's Ministry of the Environment (MOE) rejected CELA's application on the grounds that the SDWA was unnecessary.

Thus, as CELA represented the Concerned Walkerton Citizens in Parts I and II of the Walkerton Inquiry, CELA continued to strongly advocate the passage of the SDWA. For example, CELA filed a detailed submission entitled, Tragedy on Tap: The Need for a Safe Drinking Water Act in Ontario. CELA also pressed for the SDWA at the various workshops and expert meetings held under the auspices of Part II of the Inquiry.

Accordingly, CELA was pleased by Justice O'Connor's endorsement of the SDWA in the Part II Report:

I recommend that the Province develop a comprehensive, source-to-tap, government-wide drinking water policy and enact a SDWA embodying the important elements of that policy. I also propose that the MOE take the lead in developing and implementing the policy (Part II Report, p. 13).

Following the release of the Part II Report, the Ontario government committed to implementing all of Justice O'Connor's recommendations, including those related to the SDWA.

In the summer of 2002, the MOE released a discussion document outlining the proposed components of the SDWA. CELA filed a detailed critique of the MOE discussion document, and identified a number of additional matters that should be addressed in the SDWA.

Unfortunately, when the SDWA was introduced for First Reading in October 2002, it still lacked many key provisions that CELA had recommended for inclusion in the Act. In addition, the comprehensive, source-to-tap drinking water policy recommended by Justice O'Connor had not been developed by the MOE to guide the content and scope of the SDWA. Nevertheless, in November 2002, the SDWA received Second Reading and was referred to legislative committee for public hearings.

OVERVIEW OF SDWA

To its credit, the SDWA includes a number of important measures to protect drinking water consumers. These measures include:

  • mandatory use of licensed and accredited laboratories for drinking water testing;
  • mandatory duty to report adverse test results;
  • certification of all operators of drinking water systems;
  • licensing regime for drinking water systems;
  • broad MOE inspection powers, and creation of the Chief Inspector;
  • strong prohibitions and penalties; and,
  • statutory standard of care upon managers of drinking water systems.

However, it should be noted that several of these measures are not new, but were simply lifted from pre-existing legal requirements (e.g., the Drinking Water Protection Regulation (O.Reg.459/00) and the Ontario Water Resources Act).

SDWA CONCERNS

In November 2002, CELA appeared before the Standing Committee on General Government to present a detailed brief on the SDWA . The CELA brief supported the SDWA in principle, but noted that the Act did not:

  • address the paramount issue of source protection and watershed planning;
  • entrench "community right-to-know" principles;
  • ensure meaningful public participation in standard-setting and decision-making under the Act;
  • entrench the precautionary principle as the basis for standard-setting;
  • include procedures for citizens to require investigations of suspected drinking water offences; or,
  • prohibit the transfer of ownership of municipal drinking water systems to private companies.

In light of these and other concerns, CELA recommended 29 different amendments to the SDWA. While some modest amendments were subsequently made to SDWA by the Standing Committee, most of the foregoing concerns were not satisfactorily addressed prior to the passage of the SDWA by the Ontario Legislature.

uring the legislative debate on the SDWA, representatives of the Ontario government claimed that the Act was the strongest drinking water law in the world. This is clearly not the case, particularly if one compares the Ontario law to the highly regarded U.S. SDWA, which has been substantially expanded and strengthened since its enactment in 1974. Thus, it remains to be seen whether Ontario's new SDWA will actually deliver effective and enforceable drinking water protection, as envisioned by Justice O'Connor and deserved by all Ontarians. 

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Richard Lindgren is a CELA lawyer.