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

Good Optics or Good Water: Progress on North Battleford?

It's a story that most Ontarians recognize. Set against the backdrop of a provincial regulator in full retreat and an indifferent civic administration that failed to make safe drinking water a priority, the overworked and undertrained employees of an aging, substandard treatment facility struggle to deliver a basic service to their customers. Add polluted source water to the mix and the outcome is disastrous. People turn on their taps, take a drink and fall violently ill. After stomachs settle, an inquiry is held. Denials are uttered, recommendations are made and in the end, the provincial government professes to do something about it. Reminiscent of Walkerton? It is North Battleford, Saskatchewan, where in the spring of 2001 (almost a full year after the Walkerton tragedy) over 5,800 residents suffered through an outbreak of cryptosporidiosis, a gastrointestinal illness whose symptoms include diarrhea, abdominal cramps, fever, nausea and headaches. Like Walkerton, it entered peoples' bodies through a service their governments had been entrusted to deliver safely-drinking water.

Cryptosporidiosis is caused by ingesting the oocyst (the environmental stage in a parasite's life cycle) of the cryptosporidium parvum parasite. There are two genotypes of the parasite, human and animal. Both can infect humans. The human genotype was identified to be the culprit in North Battleford.

While it was not in the mandate of the subsequent commission of inquiry to assign civil or criminal responsibility, what became clear was that the people of North Battleford were let down. Their municipality, carrying a bulging contingency fund, refused to spend money on upgrading their decrepit water treatment plant. Their provincial government, although aware that the plant was in poor condition, hadn't inspected it in the ten years prior to the outbreak. And the plant employees, who had been working without a supervisor for over four months, were unable to heed the warning signs of a potential drinking water problem.

The commission ran through the fall of 2001 with final arguments happening in mid-January of 2002. Justice Robert P. Laing, Court of Queen's Bench since 1994, was appointed to head the inquiry and was to submit his findings and recommendations to the Saskatchewan Minister of Justice no later than March 31st, 2002. The commission's mandate was to investigate the circumstances that led to the contamination of North Battleford's drinking water; the adequacy of the municipal and provincial governments' responses to the crisis; and, the effect of government regulations, by-laws, policies and practices on the outbreak.

In the performance of his duties, Justice Laing called a wide array of witnesses including the Mayor, the Director of Public Works and the City Commissioner of the City of North Battleford; water treatment employees both past and present; health inspectors and officers; and, Saskatchewan Environment and Resource Management (SERM) managers and employees.

In his final report, Justice Laing recommended 28 specific actions for the City of North Battleford and the Government of Saskatchewan to improve the safety of the province's drinking water. The report was submitted to the Minister of Justice on March 28, 2002. However, the government didn't choose to make it public until almost a week later, after they had had plenty of time to scrutinize it. Shortly after the report was finally released, the government unveiled their response dubbed "The Long Term Drinking Water Strategy" (LTDWS). Commendably, they accepted all of the recommendations and vowed to improve the quality of Saskatchewan's drinking water.

The unfortunate, though perhaps anticipated, effect of the government's immediate response was to deflate public interest in the findings of the commission of inquiry. Since the government made a show of accepting all the inquiry's recommendations, the public's focus shifted to the LTDWS.

In the text of Justice Laing's report lie the seeds of a holistic approach to drinking water quality that, if implemented as outlined, could place Saskatchewan in a leadership position in the provision of a vital resource to its citizens.

Justice Laing advocated considering safe drinking water to be a matter of public health, not environmental protection, thus increasing its importance in the political sphere. In addition to significant regulatory reform, he also recommended creating a unit within the SERM whose sole responsibility would be to ensure the quality of the province's drinking water. Justice Laing envisioned an independent unit, enshrined in legislation, with its own director, mandate and jurisdiction to "protect watershed and ground water sources of drinking water." This is an important step and, in fairness, one that the government has undertaken to perform-with debatable success.

In June 2002, the government created the Drinking Water Quality Unit (DWQU). It resides within SERM, has its own senior manager, and is the lead regulatory body for the delivery of drinking water in the province. However, the unit was not created through legislation as suggested, it was created through departmental restructuring. Justice Laing expressed concern that this approach would open the DWQU to the whims of fiscal restraint that gutted Saskatchewan's water quality program in the 90s. By their actions, SERM seems unconcerned this could happen to the DWQU.

As for its position as lead regulator, the DWQU is currently beefing up the Water Pollution Control and Waterworks Regulations, another of Justice Laing's ideas. The new regulations are expected sometime in November and the DWQU is confident they will live up to the commission of inquiry's recommendations. It is feared, however, that the proposed regulations will still download the responsibility for safe drinking water to the municipalities, one of the causes identified by Justice Laing as contributing to the outbreak in the first place. The text of the new regulations will tell whether or not such fears are warranted.

Another of the government's bold moves was to create the Saskatchewan Watershed Authority (SWA) through the Saskatchewan Watershed Authority Act (SWAA), proclaimed in October 2002. This is certainly a step in the right direction. However, Justice Laing had envisioned watershed protection as part of the DWQU's mandate. He hoped to minimize the "diffusion of responsibilities" among government departments, something in evidence at North Battleford. Unfortunately, the SWA might actually increase this diffusion.

Aside from the obvious fact that watershed protection lies within a different department than drinking water regulations, it is not even clear with whom the responsibility lies to protect source waters for the purpose of drinking water. The mandate of the SWA as defined in Section 5 of the SWAA contains vague references to protecting watersheds, encouraging conservation of wetlands and minimizing contamination of surface waters, but contains no specific references to drinking water.

If the SWA is the government's response to the call for source water protection contained in Part VII of the Report of the Commission of the Inquiry, it clearly contravenes Justice Laing's contention that drinking water quality be considered separately from water quality in general.

While the SWA and the DWQU are far from unanimous successes, the new Environmental Management and Protection Act (EMPA) receives better reviews from its critics. For the first time ever, the duty to provide safe drinking water is clearly spelled out in a piece of provincial legislation.

Unfortunately that duty is almost wholly thrust upon the management of water treatment plants, leaving the province responsible for matters relating to "the supervision, control and regulation of water quality," an obligation the province already had under The Public Health Act, 1994.

EMPA also enhances the permit enforcement regime by defining conduct which violates permit conditions as an offence under the act. The result is stronger permits. While it may seem an obvious step, the water treatment plant at North Battleford routinely ran in violation of established regulations with impunity.

On the whole, the government's strategy has the appearance of being well executed. By repeatedly insisting that Justice Laing's recommendations are being followed, the government is rebuilding public trust in the safety of the province's drinking water. This is a good thing. Undeniably, part of any government's job is to be seen doing the right thing. However, the safety of the province's drinking water doesn't improve through good optics. The success of the government's strategy rests on quantifiable improvements. At minimum, this means no more North Battlefords, but if that is the sum total of the government's achievements, they will have failed. The commission of inquiry noted that in 1999 a quarter of the population of Saskatchewan was drinking water that didn't meet the province's guidelines for potable water. It is the government's responsibility to ensure those numbers come down. The success of their vaunted Long Term Drinking Water Strategy depends on it.

Anthony Lemke volunteers with CELA.