Category Archives: Water

Ontario’s Great Lakes Protection Act

Today, October 7, 2015, Ontario passed the Great Lakes Protection Act (the “Act“). The Act is designed to strengthen Ontario’s ability to keep the Great Lakes and St. Lawrence River clean, as well as to protect and restore the waterways that flow into them.

According to the provincial government’s news release, the Act enables the province to address significant environmental challenges to the Great Lakes, including climate change, harmful pollutants and algal blooms. The Act will also:

  • Establish a Great Lakes Guardians’ Council to provide a collaborative forum for discussing and gaining input on issues and priorities relating to the Great Lakes.
  • Allow the Ministry of the Environment and Climate Change to set environmental targets and enable communities to address local problems.
  • Require the establishment of monitoring programs on a number of water quality indices where needed, as well as regular public reporting.
  • Require consideration of Traditional Ecological Knowledge in decisions made about the health of the Great Lakes if offered by First Nations or Métis communities.
  • Enshrine Ontario’s Great Lakes Strategy the province’s action plan on the Great Lakes, as a living document to be reviewed every six years and reported in the legislature every three years.

This is extremely positive news given the declining health of the Great Lakes, particularly with regard to recent toxic algal blooms and the availability of clean drinking water for those people reliant on the Great Lakes’ fresh water supply.

According to Environmental Defence, who has championed this Act for a number of years, the Act will lead to:

  • Empowered communities through consultation and new opportunities for involvement;
  • Consideration of traditional ecological knowledge in research and decision-making;
  • Provincial commitment to meeting targets that will reduce or eliminate harmful pollutants and address algal blooms; and
  • Accountability, through improved monitoring and reporting.

The Great Lakes basin is home to 98 per cent of Ontario’s population, 95 per cent of its agricultural lands, 80 per cent of its power generation capacity and 75 per cent of Canada’s manufacturing sector. Additionally, Ontario has 10,000 kilometres of Great Lakes and St. Lawrence shoreline, the longest freshwater coastline in the world. This is reason enough to celebrate the passing of the Great Lakes Protection Act.

James Early

Site C Dam Faces Alberta Opposition

Two Alberta First Nations have filed legal proceedings in Federal Court seeking a judicial review of the approval of the Site C dam project by the British Columbia government earlier this fall.

The Mikisew Cree and Athabasca Chipewyan allege that they were not consulted by government, and that the decision to approve the Site C dam was made without considering the downstream effects of the dam on the Peace-Athabasca Delta, a UNESCO World Heritage Site and one of the largest freshwater deltas in the world.

This judicial review application follows of the heels of an earlier application by several Treaty 8 First Nations in B.C. In that application, the B.C. First Nations allege that the Ministry of Environment failed to fully consider the effects that the dam will have on First Nations’ treaty rights. The Peace Valley Landowners Association is also part of a judicial review application in relation to Site C.

The approval of the Site C dam came despite a Federal-provincial Joint Review Panel report which found that the dam would produce impacts on First Nation treaty rights that could not be mitigated. That same Panel found that Site C “would not have any measurable effect on the Peace-Athabasca Delta,” and that there are not any direct links between the Site C project and effects on the Delta.

James Early

Symposium on Flood and Drought Prevention in Alberta

Notice: Alberta is hosting a one-day symposium on April 29, 2014 to discuss progress and further improvements to prevent future floods and drought.

Alberta’s Watershed Management Symposium: Flood and Drought Mitigation will share the latest update on snowpack data and river forecasting, as well as assessments of mitigation options for Alberta’s most flood-prone river basins. Experts will also speak to the critical role natural headwaters play in flood and drought mitigation.

The Watershed Management Symposium: Flood and Drought Mitigation will be held Tuesday, April 29, at the BMO Centre in Calgary and you can register online to take part. The Symposium will be available to view online after the event.

By James Early.

Bill 18 – 2014: Water Sustainability Act (British Columbia)

On Tuesday, March 11, 2014 the B.C. Government introduced its new Water Sustainability Act (the “Act”). In planning the overhaul of the 105-year-old Water Act, the B.C. Government recognized that:

“Water is our most important natural resource:  without it, there would be no life on Earth. We all need it – for drinking, washing, cooking, growing food, and supporting every aspect of a healthy environment, a growing economy and our prosperous communities.

 

British Columbia has more than 290 watersheds, including fish-bearing rivers and streams, lakes and wetlands and the Government recognized that with the a growing population, a changing climate and expanding development, the pressures on those waters were growing and steps needed to be taken to ensure that water was able to meet today’s needs, and the needs of generations to come.

The Act will repeal most of the Water Act by modernizing its language and will do the following:

– re-enact the regulatory scheme for the diversion and use of stream water and apply that scheme to both stream water and groundwater;

– authorize the establishment of water objectives and requirements that water objectives be considered in decision making under the Act;

– mandate the consideration of the environmental flow needs of a stream in licensing decisions;

– move various provisions from the Fish Protection Act respecting sensitive streams, bank-to-bank dams and fish population protection orders to the Act as well as provisions respecting the protection of streams;

– provide new powers to be applied when streams are at risk of falling or have fallen below their critical environmental flow thresholds to modify the existing precedence of water use for the purpose of protecting the aquatic ecosystem of streams and aquifers and essential domestic uses;

– rename water management plans as water sustainability plans and provide new regulatory powers that can be exercised on the recommendation of a water sustainability plan, including regulations restricting the authority of approving officers, restricting the use of land or resources, reducing water rights, imposing requirements in respect of works and providing for dedicated agricultural water that can only be used for prescribed land and purposes;

– authorize an administrative monetary penalty scheme;

– authorize regulations providing powers and duties of officials under the Act to officials under other enactments;

– repeal most of the Water Act, leaving only provisions related to water users’ communities, and renames the Water Act as the Water Users’ Communities Act;

– make consequential amendments to other Acts.

The Act is certainly a positive step from the archaic Water Act, though there are already suggestions that the Act is vague, watered-down and leaves too much of the decision making to the discretion of regulators. Staffing levels are also being cited as a cause for concern, with a particular fear that low staffing levels will result in lower monitoring standards and enforcement.

Other criticisms of the Act include the fact that it is merely a “framework” which leaves much of the details to future regulations and that it fails to recognize water as a human right or public trust.

The B.C. Government maintains, however, that the Act makes B.C. an environmental stewardship leader. Time will tell.

Over the next thirty days, the B.C. public will be consulted on the issue of fees for major industrial water users before Minister Polak makes a recommendation to the Treasury Board on that issue. The Act is expected to be in force in Spring, 2015.

By James Early.

Environment Canada Search Warrant Stands

Last week the Supreme Court of British Columbia dismissed an application by Haida Salmon Restoration Corporation (“Haida Salmon”) to set aside a search warrant relating to ten counts of ocean disposal under the Canadian Environmental Protection Act (“CEPA”).

Environment Canada obtained the search warrant believing that Haida Salmon and related parties had loaded substances containing iron onto the “Ocean Pearl” to be disposed of into the Pacific Ocean without the appropriate permits.

Science tells us that ‘iron fertilization’ of the ocean may stimulate plankton growth or algal blooms and that, in turn, this may be an ideal way to store carbon. However, the wider side-effects of iron fertilization are not currently known.

Haida Salmon argued, unsuccessfully, that the search warrant was not based upon any violation of Canadian law or, alternatively, that the definition of “disposal” in the CEPA is vague and, therefore, unenforceable and contrary to the Canadian Charter of Rights and Freedoms. Haida Salmon abandoned this latter argument during the course of its application.

In finding in Environment Canada’s favour, Mr Justice Voith determined that:

“[i]t is not for the issuing justice, nor for the reviewing judge… …to weigh the “niceties of legal argument”. The function of the issuing justice is to determine if the basic elements of the offence(s) at issue have been made out on the face of the Information to Obtain”.

Essentially, in allowing the search warrant to stand, the Court recognized that it is not necessary for Environment Canada to have a perfect case, just that the Information to Obtain set out at least some basic elements of an offence.

For a full transcript of the decision, see: Haida Salmon Restoration Corporation v Environment Canada, et al [2014] BSCS 151.

By James Early.