This week marks the 10 anniversary of the Walkerton water tragedy, in which seven people died and nearly half of the town’s population of 4800 was made seriously ill. The disaster was the a result of the contamination of the town’s water supply with E.Coli and Campylobacter Jejuni from manure spread on a farm near one of the wells that provided drinking water.
The disaster resulted in a major public inquiry lead by Mr. Justice O’Connor. In his January 2002 report, O’Connor found that provincial and local government failures caused the deaths and illnesses and that these outcomes “could have been prevented.” Ten years after the disaster it is worthwhile to reflect on the lessons learned from the Walkerton experience, and the extent to which they have been incorporated into public policy in Ontario.
The disaster led to a major overhaul of the province’s regulatory system for the operation of drinking water systems. A Safe Drinking Water Act was adopted in 2002 and major reinvestments in the Ministry of the Environment’s capacity to oversee such systems have taken place. Progress on the protection of drinking water at source, the foundation of the ‘source to tap’ multibarrier approach to drinking water safety recommended by the Inquiry, has been less certain. A Clean Water Act, focussed on source water protection was not enacted until 2006. The resulting process of watershed based source water protection planning is still at a very early stage. Questions remain about the ultimate effectiveness of the process, given the complexity of task as outlined in the legislation and the limited resources and authority of the local planning committees it established.
More broadly, the disaster brought the environmental dimensions of Mike Harris’ ‘common sense revolution’ to a screeching halt. The pattern of dramatic budget cuts to environmental agencies, aggressive ‘regulatory reform’ initiatives that weakened existing legislation and made the adoption of new regulations almost impossible and the delegation of responsibility for inspections to municipalities or even regulated industries themselves, came to an abrupt end.
Until about a year ago, it had seemed that the Ontario government had learned the lessons of the potential consequences of these types of policies. The McGuinty government in particular had rebuilt much of the ministry of the environment’s budget and capacity and abolished the Harris government’s anti-regulatory ‘red tape commission,’ whose role in preventing the adoption of new regulations that might have lessened the impact of the Walkerton disaster was well documented by the inquiry.
Unfortunately, in the aftermath of the October 2008 economic downturn and ensuing panic over the province’s economic future, a number of the key themes that defined the deregulatory dimensions of the Harris ‘revolution’ have undergone a surprising renaissance. As part of the ‘modern government’ dimension of the province’s ‘Open for Business’ initiative a ‘regulatory review’ was launched in February 2009. The review included proposals that a new regulation could only be adopted if two existing regulations were withdrawn. The protection of drinking water could only be strengthened if, for example, some of the rules on air pollution and toxic waste were eliminated. Not even Mike Harris went that far.
Earlier this year the province quietly adopted a ‘regulatory policy’ that bears more than a passing resemblance to the “more jobs/less paper” test put in place under the auspices of the ‘common sense revolution.’ The role of these types of policies in making the adoption of new regulations difficult is well understood. The establishment of complex procedural rules and elaborate, costly and time consuming requirements for cost benefit analysis sends a clear message to government officials not to introduce new rules, even when they might be required to protect public safety, health and the environment. Precisely such a result with respect to drinking water under the Harris government’s policies is described in chapters 10 and 13 of the first part of the Walkerton Inquiry’s report.
Nor is the ‘regulatory policy’ the only dimension of the new mood that seems to have gripped the province. An 'Open for Business Act to be introduced this week by the Minister of Economic Development and Trade is expected to revive many of the themes that defined the Harris’ government’s deregulatory agenda. At the centre of these proposals is the concept of removing Ministry of the Environment review and approval for a range of potentially environmental significant activities, and replacing them with a system where proponents would ‘register’ their own compliance with yet to be established rules.
In addition to removing ministry review of these activities, under the government’s current proposals members of the public would be stripped of their existing rights to notice and to comment on projects that would be dealt with under the ‘registration’ system. The public’s right to appeal the approval of projects might cause harm to the environment to the Environmental Review Tribunal would also be removed.
The Walkerton disaster provided an object lesson on the consequences of underestimating the importance of the province’s responsibilities with respect to the protection of public health and the environment. Yet the province seems poised to return to the same paths that lead to tragedy a decade ago. One hopes that this week’s unhappy anniversary gives the province pause to reflect on its new approach to the protection of public goods.
The Author testified as an expert witness on Ontario environmental law and policy affecting drinking water safety during Part I of the Inquiry, and prepared a discussion paper on institutional models for drinking water safety for part II of the inquiry.