On Tuesday, Environmental Commissioner of Ontario (ECO) Gord Miller released his 2010/11 annual report entitled Engaging Solutions. The ECO report begins by framing the discussion with commons and public trust principles and examines pressing issues including threats to the Great Lakes and the emerging issue of hydraulic fracturing or fracking in Ontario.
Commons and public trust principles in the Environmental Bill of Rights
The Environmental Commissioner of Ontario is an independent officer of the Legislative Assembly and reports on the government's compliance to the Environmental Bill of Rights (ERB).
The EBR is based on several commons and public trust principles. As Maude Barlow's report Our Great Lakes Commons: A People's Plan to Protect the Great Lakes Forever notes, water "is a common heritage that belongs to the Earth, other species and future generations as well as our own." Our Great Lakes Commons outlines several principles and components to uphold water as a commons and public trust including:
- Governments have an affirmative obligation to manage and protect the water of the Great Lakes as a Commons.
- Public participation is key to the Great Lakes Basin Commons.
- A process for citizens and communities living on the Basin to sue corporations and governments knowingly polluting their local water sources for violation of their human right to clean water.
Barlow also notes that the Great Lakes, specifically, and water, broadly, needs to be "protected by a legal and political framework based on the Public Trust Doctrine, underpinning in law that the Great Lakes are central to the very existence of those people, plants and animals living on or near them and therefore must be protected for the common good from generation to generation." Barlow continues by highlighting that, "Under the public trust, governments, as trustee, are obliged to protect these trust resources and exercise their fiduciary responsibility to sustain them for the long-term use of the entire population, not just the privileged few who could buy inequitable access."
In the same vein, the ECO report begins by stating that, "The EBR helps to make ministries accountable for their environmental decisions, and ensures that these decisions are made in accordance with the goal all Ontarians hold in common -- to protect, conserve and restore the natural environment for present and future generations. The provincial government has the primary responsibility for achieving this goal, but the EBR provides the people of Ontario with the means to ensure it is achieved in a timely, effective, open and fair manner."
The EBR upholds commons and public trust principles by giving Ontarians the right to:
- comment on environmentally significant ministry proposals;
- ask a ministry to review a policy, act, regulation or instrument;
- ask a ministry to investigate alleged harm to the environment;
- appeal certain ministry decisions; and
- take court action to prevent environmental harm
The potential for the Ontario government to be a leader of the Great Lakes
The ECO report notes the continuing plethora of threats to the Great Lakes including "ongoing damage by invasive exotic species; deteriorated shoreline habitats; a worrying return of algal fouling in near shore areas; and worsening trends in beach closures along the shores of Lake Erie and Lake Ontario."
The report adds that "At the bi-national level, Canada-U.S. interactions have been guided since 1972 by the periodically revised Great Lakes Water Quality Agreement. Within Canada, the federal government and Ontario collaborate under the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem."
Chronic underfunding of the Great Lakes
Miller highlights chronic underfunding as a key barrier to protection of the Great Lakes. He notes that, "Since 1987, governments have agreed on the need for clean-ups at 17 Canadian Areas of Concern. So far, only three such areas have been restored and formally de-listed. The problems at the remaining sites are complex and expensive: in 2007 Environment Canada estimated that remediation costs total $3.5 billion. Since 2002, Ontario has allocated, on average, $10 million per year in operational project funding towards Great Lakes protection. Ontario has also pledged some additional project-specific funds mainly towards Areas of Concern."
He compares the slow progress in Ontario to the action taken on the U.S. side: "Impressive momentum and strong funding commitments characterize recent Great Lakes actions on the American side of the border. In 2009, U.S. President Obama proposed a five-year action plan to restore the lakes, involving many federal agencies and led by the U.S. Environmental Protection Agency. Congress then approved $475 million as the first-year (2010) instalment for the Great Lakes Restoration Initiative. Further, the plan envisions yearly funding instalments through 2014, amounting to $2.2 billion -- the largest investment in the Great Lakes in two decades. The GLRI funding comes on top of ongoing federal Great Lakes programs and funding for water and sewer infrastructure. This unprecedented action plan features outcome-oriented goals, measurable interim benchmarks and a strong focus on accountability."
The ECO report stresses the need for increased funding from Canadian authorities: "Based on Canada's population in the Great Lakes basin, the U.S. EPA says Canada's investment should approximate one-third to one-half of the U.S. commitment." According to this recommendation, Canadian authorities should be allocating $733 million to $1.1 billion from 2010 to 2014, which if divided evenly over the four years would amount to approximately $183 to 275 million per year. The federal government has only committed $10.5 million this year while McGuinty has pledged $52 million for Great Lakes clean up. Based on the ECO's recommendation, the two levels of government are short at least $120 to 212 million this year.
The report notes the challenges of the multiple jurisdictions governing the Great Lakes. However, Miller highlights the potential for Ontario to be a leader and points out that Ontario does have the power to unilaterally:
- Get serious about combined sewer overflows;
- Report on pollutant loadings;
- Unleash the potential of the Clean Water Act, 2006 to protect Great Lakes waters;
- Build on successes like the cosmetic pesticides ban;
- Ban Asian carp imports, dead or alive;
- Defend wetlands;
- Curb agricultural runoff;
- Harness a broader range of ministries to deliver Great Lakes restoration; and
- Champion the Great Lakes.
Recommendation 5, which relates to the Great Lakes, calls for the MOE to develop Great Lakes targets and ensure that Great Lakes policies are included in the source protection planning process. The Council of Canadians has called for the federal government to commit at least $500 million this fiscal year to begin to implement a comprehensive action plan to protect and clean-up the Great Lakes. The Council also calls on the McGuinty government to base the Great Lakes Protection Action on a commons and public trust framework.
Hydraulic fracturing as an emerging issue in Ontario
The ECO report highlights emerging issues such as hydraulic fracturing or fracking of shale gas formations. Hydraulic fracturing, commonly known as "fracking," is a controversial drilling process used to extract natural gas from shale, coal beds and "tight sands" with vertical and horizontal drilling. Sand, water and chemicals are blasted at high pressure to fracture rock where natural gas is trapped.
The report explores the risks of fracking including:
- The large water withdrawals required for each fracking procedure could disrupt aquatic ecosystems, downstream wetlands and aquifer supplies.
- If the water quantity in the aquifer decreases as a result of the withdrawals for fracking, the water quality can be negatively affected because the concentration of pollutants or other contaminating materials in the water increases.
- The liquid that resurfaces can even contain naturally occurring radioactive materials, such as radium, thorium and uranium.
- Water contamination from the liquid that resurfaces can occur if there are improper or inadequate handling facilities at the surface (e.g., ineffective stormwater controls, faulty casing construction, operational errors or pit leakages). Human error can result in chemical spills on-site, releasing contaminants into the environment and causing a serious health hazard for those in the immediate vicinity.
- Methane contamination of drinking water from shale gas development has been documented in areas of the U.S., which has also experienced an increase in the number of cases of human exposure to methane ... [which] can cause asphyxiation and create an explosive hazard in confined spaces."
The classifications of chemicals in the ECO report include: acids; bactericides; corrosion inhibitors; friction reducers; gelling agents; iron controllers; scale inhibitors; and surfactants. However, the ECO report fails categorize some of the chemicals as carcinogens and hazardous air pollutants as has been categorized in the report Chemicals Used in Hydraulic Fracturing by the U.S. House of Representatives Committee on Energy and Commerce.
Dr. Theo Colborn with the U.S. Endocrine Disruption Exchange Inc., has been collecting data on fracking chemicals used by the industry over the past five years. Ninety-four per cent of the fracking chemicals in her database are associated with skin, eye and respiratory problems, 93 per cent with harm to the gastrointestinal system and 83 per cent with affecting the brain and nervous system. Colborn's research includes analysis of chemicals found in waste pits and used during the drilling process. The potential for these chemicals to contaminate waterways and the surrounding environment will impact public health and consequently health-care costs.
Ontario legislation pertaining to fracking
The ECO report points to several pieces of legislation pertaining to shale gas extraction including:
- Provincial Policy Statement, 2005 (since bulk of shale gas is located beneath private lands and not Crown lands)
- Oil, Gas and Salt Resources Act (which allows the Ministry of Natural Resources to respond to technological advances, including shale gas extraction and issues licences or permits relating to the establishment, operation and plugging of a well.)
- Ontario Water Resources Act (which regulates water takings exceeding 50,000 litres of water and any discharges of wastewater as sewage works.)
- Environmental Protection Act (which oversees emissions to air or production of solid wastes from shale gas operations.)
The ECO warns that, "If economically viable reserves of shale gas are confirmed in Ontario, MOE and MNR must ensure that the regulatory framework is sufficient to protect the natural environment and water resources from potential environmental effects."
But he also notes that, "while the prospect of a new and plentiful domestic energy resource is appealing, environmental damage could outweigh the energy benefits of increased natural gas supply. Any future development of Ontario's shale gas resources must be undertaken with the public assurance that the cumulative effects of such development do not have unintended consequences. Given the close proximity of Ontario's shale formations to groundwater supplies, such development must be cognizant of the reality that, once groundwater is contaminated, remediation may be prohibitively expensive."
In Recommendation 10, the ECO recommends that MNR and MOE review and publicly report on the sufficiency of the regulatory framework to protect water resources and the natural environment from shale gas extraction.
The Council of Canadians opposes fracking because of its high water use, its high carbon emissions, its impacts on human health, the disruption it causes to wildlife, and the danger it poses to groundwater and local drinking water. We are calling for a country-wide stop to fracking operations and therefore call upon the Ontario government to stop issuing permits or licenses needed in the fracking process.
To learn more about the Council's work on fracking, click here.
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