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Is Brian Gallant’s Government dismantling our water protection behind closed doors?

After 4 hours of waiting in the lobby of the Department of Environment and Local Government, it was clear that my written request to Minister Serge Rousselle to attend the March 14th meeting of the Water Strategy Working Group would not be granted.  And when I spoke with Environment official Lesley Rogers that morning, she confirmed that there would be no transcripts of these meetings.

The previous day, Deputy Minister Kelli Simmonds responded by e-mail, without cc to the Minister, that the members of the Working Group were already set and that “it would not be appropriate for you to attend the working group meetings”.  I will keep asking for a written answer from the Minister to explain this decision. Council of Canadians is recognized across this country as a leading advocate for the protection of fresh water.  Certainly a representative from our Fredericton chapter should not be turned away from the above meeting.  

The protection of our drinking water and communities in New Brunswick is under siege.  Calls for an open and transparent process to implement and enforce the water testing and water classification regulation have gone unanswered for several years.  And the Brian Gallant government is now conducting closed-door meetings to replace the existing Water Classification Regulation, legislation that they claim is “unenforceable”.

This raises many troubling questions:

Why would we dismantle a water testing and water classification program when that work has already been done and recognized as a world-class strategy?  This program already represented 25 years of government work, $7.3 million of Environmental Trust Fund projects to 19 watershed groups across New Brunswick,

tens of thousands of volunteer hours, and requisite work completed on a minimum of 4 watersheds.

Why would we do away with river insect larvae sampling when this is a widely-used, scientifically-accepted method, and a community-based and cost-effective approach, to detect point source and non-point source pollution?

Is this dismantling putting our drinking water and communities at risk?

Is this dismantling paving the way for large-scale projects such as Energy East, Sisson Brook, the massive clearcutting of our forests (1), and the widespread glyphosate spraying used to turn the clearcuts into monoculture softwood plantations?

The magnitude of this public health issue can’t be stressed enough.  Why is over 50% of our drinking water (private wells and rivers) in New Brunswick not covered by comprehensive water quality protection such as water classification?  An extremely large percentage of New Brunswickers (40%, 280,000 people) get their drinking water from groundwater using private wells.  An equally large percentage (40%, 300,000 people) get their drinking water from their municipality using surface water (rivers and lakes).  The remainder (20%, 173,000) get their drinking water from municipal wells using groundwater.

Meanwhile, our forests (1) are quiet without deer, birds, and other wildlife (2). Wetlands and deer wintering yards (3) are plowed under.  Vast clearcuts merge together with only the thinnest of tree strips left between them.  Our beaches are polluted with human waste and the contamination goes unresolved. Our lakes are contaminated with potentially toxic blue-green algae blooms but the government refuses to conduct regular water testing. 

And our communities and road infrastructure are experiencing more and more destruction from severe flood events; the loss of forest cover in their watersheds is contributing to the speed and amount of runoff after heavy rain events, thus increasing the risk of flooding in downstream communities.

There is very little water testing in this province. Even when Washademoak Lake experienced several large blue-green algae blooms the previous year, the Department of the Environment took only one water sample in the entire ~30-kilometre-long lake in 2016.  And instead of closing the beaches at Parlee Beach and Murray Beach for prolonged periods, many of the high fecal coliform (human waste) test results were ignored by the Department of Health.  The Health Department is headed by Minister Victor Boudreau, who is also a major investor in a campground development proposed for Parlee Beach.  Welcome to New Brunswick.

And the government aggressively refuses any discussion of watershed-based source water protection (4) here in New Brunswick.  This is the local watershed stewardship model adopted throughout the Province of Ontario after the Walkerton tragedy, a water contamination by e-coli in which 7 people died and thousands more were inflicted with life-long kidney disease.


The Brian Gallant government ignores the reality of climate change.

In the March 22, 2016 Press Release, “Strengthen, not weaken, the protection of our rivers, bays and drinking water”, New Brunswick groups and the Wolastoq Grand Council are still waiting for answers to our concerns about the implications of the government’s Water Strategy to our water testing and to our communities threatened by more intense flooding.

“The new Water Strategy ignores the focus on water in the recent NB report of the Commission on Hydraulic Fracturing”, says Maggie Connell, past Co-chair Council of Canadians – Fredericton chapter.  “The Commissioner detailed steps to protect surface water and groundwater, including the “comprehensive mapping and monitoring of New Brunswick’s groundwater aquifers” and “to mitigate the impacts of climate change-related effects, such as extreme weather, on New Brunswick’s watersheds, coasts and land base”.


Our group has consistently warned Premier Gallant and his Ministers of the need to stop the unsustainable forest clear cutting and the destruction of our wetlands,” says Connell. “The environmental protection of our forests and watersheds must be an urgent priority in order to protect downstream communities.”


Marilyn Merritt-Gray a resident of Kars, one of the Belleisle Bay communities hardest hit by the Fall 2015 rain storm, says “We know all about bad roads down here, spring flooding and washouts, but the September storm was overwhelming. The government says they have already spent $15 million on bridge and road reconstruction, but even with that in our roads in places remain barely passable and other roads remain closed. For weeks the river in front of my house ran brown.”


The Brian Gallant government ignores the reality of Canadian law

The Minister of Environment and Local Government, Serge Rousselle, is a lawyer (Q.C.) and he would fully understand that the Water Classification presently has in place an entire legal and regulatory framework in the form of the Clean Water Act and the Water Classification Regulation.  Watershed groups paid for a legal opinion on this framework from Julie Abouchar(1), lawyer with Willms and Shier Environmental Lawyers, and this opinion was delivered to the Minister’s department in the Fall of 2016. 


As our laws in Canada are based on previous rulings (i.e. precedents), this legal opinion was substantiated with a detailed explanation of Canadian case law.  The following 3 conclusions from this legal opinion are especially clear:


“The basis for abandoning the regulation cannot be that it is ultra vires, vague or unenforceable.”  


“Further, the regulation is not unconstitutional based on vagueness. To the extent that the regulation might require further details for enforcement clarity for the public and staff, it can easily be amended, or the Minister may prepare technical guidance documents.”  


“The Clean Water Act at sections 40(k.3) and (k.5) gives the Minister the discretion to classify water.”

The above conclusions dismiss the government’s claim that the Water Classification Regulation is “unenforceable”.  In the Department of Environment and Local Government’s discussion with Watershed Groups on June 9, 2016, as well as their Summary of Feedback Report released October 2016, the Department’s position was summarized as follows:


“1. The Clean Water Act does not provide sufficient authority to support the classification of surface waters:”


“2. The water quality standards in the Regulation are vague and open to interpretation:” and


“3. The water quality standards present difficulties for those entrusted with enforcement:”

The law in Canada is driven by case law and legislation. Unfortunately, the Brian Gallant government has never substantiated their claims with Canadian case law.  Even the New Brunswick Ombudsman, lawyer Charles Murray, was blocked when he requested a copy of their “legal opinion”. It was not until the summer of 2016, when Green Party MLA David Coon rose in the Legislature and asked that all correspondence related to this decision be provided to him, did the government release the above opinion, but without any supporting case law.

It is important to know that this type of water classification legislation is in place throughout United States and Europe and in some Canadian provinces.  In 2014, our Provincial Ombudsman Charles Murray released his investigation and findings on the Water Classification Regulation and stated that past governments had failed in their responsibility to enforce this legislation in New Brunswick.  The New Brunswick Ombudsman also concluded the following:


“The suggestion that there continues to be unaddressed issues about the legality of Regulation 2002-­13 12 years after its coming into force strains credulity.”


“Finally, the ongoing conduct on this file has, not surprisingly, severely eroded the Department’s credibility and its ability to work with the citizen groups which the Department explicitly recognizes as key partners in accomplishing its aims of environmental protection.”

An excellent example of how unacceptable this situation is can be seen with our shared international waterways on the East Coast.  Maine and New Brunswick share two large river systems, the Saint John River (Wolastoq) and the St. Croix River, and yet only the Maine half of the river system is protected with this water classification program.  New Brunswick compliance with the legislation would allow sharing of water testing and classification data between the two jurisdictions. 


The Brian Gallant government ignores the calls for transparency

Closed-door meetings.  No transcripts from these meetings.  And no documentation to support their “legal opinion”.  This is unacceptable.

The implementation and enforcement of the Water Classification Regulation is critical for the protection of our drinking water and communities in New Brunswick. Essentially the claims put forward by the Brian Gallant government why they can’t implement baseline water classification of our rivers are baseless.  The independent legal opinion commissioned by citizens and watershed groups provides a comprehensive set of arguments, all supported by case law, that demolishes the claims made by this and previous New Brunswick governments. 

Stay tuned.


NOTES: 


(1) HOW DO FORESTS CONTRIBUTE TO OUR WATER NEEDS? 


An excellent list of summary points was produced by the Food and Agriculture Organization of the United Nations (FAO).


(2) 8 INDICATOR SPECIES USED TO MEASURE THE HEALTH OF NB FORESTS


Indicator species are used to measure the biodiversity/the health of a forest.  Critical factors in maintaining a healthy forest for wildlife include a good diversity of tree species and the integrity of watercourses, wetlands and riparian areas.


 


At the November 2014 Old Forest workshop hosted by the New Brunswick Environmental Network, Dan Beaudette, a wildlife biologist working for the Department of Natural Resources, delivered a compelling powerpoint presentation on Conservation Management on New Brunswick’s Crown Forests, in which he cited 8 indicator species that were well below established thresholds: 1) American marten (pine marten); 2) Red-tailed hawk, 3) Pileated Woodpecker, 4) northern flying squirrel, 5) fisher, 6) black-backed woodpecker, 7) barred owl, and 8) white-breasted nuthatch. 




The new Forest Strategy announced in 2014 will increase the harvesting (clearcutting) of our forests by 20%.  It is estimated by wildlife biologists that with the present rate of clearcutting and spread of plantations in our forests, the above 8 indicator species in New Brunswick will not have sufficient forest habitat within 10 years and are expected to become endangered species. 


(3) DEER WINTERING AREAS


The new Forest Strategy announced in 2014 will result in the destruction of over 60,000 hectares of deer wintering areas, a reduction of 30% (from 216,000 to 150,000 hectares).  These “deer yards” are critical to the survival of deer during the harsh winters here in New Brunswick. Deer yards are selected for the intact forest cover and the vegetation food that they provide to deer, and include southwest facing slopes and cedar bogs.


(4) WATERSHED-BASED SOURCE WATER PROTECTION OF DRINKING WATER

There are 36 conservation authorities in the Province of Ontario that are organized according to watershed boundaries, not municipal boundaries.  All other parties work with the conservation authority to produce locally developed watershed-based source protection plans.  When the local plans are developed and approved by the community, they must be respected by the Province. It is noteworthy that the Province of Ontario recommended that a high priority be placed on the participation of First Nations in source protection planning.


In summary, watershed-based source protection planning is the safeguarding of current and future sources of drinking water through the protection of lakes, streams, rivers, and groundwater.  This planning also involves the protection of sensitive lands such as wetlands, flood plains, and valley lands.  The goal is to achieve a multi-barrier approach to the protection of drinking water, so source water protection is combined with the protection of water distribution systems, and water/wastewater treatment plants. “For the drinking water source protection framework, health protection is the main criteria for determining which decisions must be consistent with source protection plans.”


(5) PRESS RELEASE SENT OUT MARCH 22, 2016

“Strengthen, not weaken, the protection of our rivers, bays and drinking water”, says New Brunswick groups questioning the government’s Water Strategy