Opinion Piece published in the Charlottetown Guardian, December 7, 2017

By Catherine O’Brien and Marie Ann Bowden

The Coalition for the Protection of PEI Water recently met to discuss the newest draft of the Water Act.  After an inclusive and thorough participatory process, we are disappointed that no public consultation was allowed for this final draft.

Though we do see some very positive additions, we feel it is important to point out some significant gaps within the draft Water Act that are of great concern. We hope that some changes and amendments can be made before this Bill becomes law.

1. The “Purpose and goals” section of the draft Water Act is important but does not create rights.  A separate provision is needed in the Act to acknowledge and enshrine the right of Islanders to a clean and adequate supply of water.  We suggest, “The peoples of PEI have the right to affordable water, sufficient in quality and quantity for human and ecosystem sustainability. This includes the inherent water rights of the indigenous people of PEI.”

2. The section dealing with the ban on fracking appears to be good news, but the clauses which follow can circumvent the ban if the Minister along with the Cabinet believe it is in “the public interest”, to do so with no requirement for public consultation. Therefore, the offending s. 19 (2) and (3) should be deleted from the draft.

3. We strongly suggest an amendment to section 2(c) to highlight and ensure the success of the partnership between all stakeholders. We suggest it read:
(c) Water is a finite resource, the management of which requires transparency of all information related to water and meaningful public participation to ensure its long-term sustainability and availability.

4. The “polluter pays” principle, “precautionary principle” and “intergenerational equity” are vaguely alluded to in the Bill but it is important to actually use the words if the province is indeed committed to these principles as goals. Such incorporation allows the province to incorporate best practices related to these evolving concepts and avail itself of the jurisprudence that helps interpret (and we hope further) these laudable goals.

5. In section 18(2)(a), the content of the registry of information available to the public is vague, and should include “applications and approvals, orders and directives and other information regarding an application.” In addition, the registry should be accessible to all Islanders and be presented in a timely manner.

6. Sustainability and conservation are not seen in the Act as primary goals.  For instance, municipalities can exceed the withdrawal limits indefinitely (s.36(b)) without penalty. There is nothing in the Act that requires the municipalities to incorporate conservation measures, nor are they given a timeline to comply with limits. This should change. It is unacceptable to propose legislation that essentially allows municipalities to operate outside the law.

7. The moratorium on high capacity wells should be specifically included in the legislation.  It was a key component of many presenters’ requests, as was concern about nitrates, and was the impetus for the development of the Water Act.  After the public review a chart, provided by Government, listed the concerns of Islanders based on the strength of public input. It clearly showed overwhelming support for the moratorium.  Again, we should require sustainable practices that do no harm to the environment when there is any water extraction.  It’s not about “if” the ban can be lifted but “why” does it need to be? Who benefits? Would lifting the moratorium reflect the priority that Islanders place on the protection of our underground water resources? Until these and other relevant questions are definitively answered the moratorium should remain and be specifically articulated in the Act.