Ontario’s Bill 133 requires ‘rewrite’

The following is an open letter to Ontario Environment Minister Leona Dombrowski from Michael Leahy, director of the Kirkland Lake, Ont.-based Northern Prospectors Association. The letter addresses proposed amendments to Ontario’s Environmental Protection Act under Bill 133. It was dated Feb. 20, 2005.

Dear Minister,

The Northern Prospectors Association is very concerned about your proposed amendments to the Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA) under Bill 133. We share the minister’s concern about pollution in our environment, but this approach raises grave concerns about the possible effects of this legislation, if enacted as proposed.

Issues of particular concern to the NPA are: the targeting of certain parties and the exemption of others; the uncertainty of the test for prohibited discharges (“may” cause an adverse effect); the Draconian new penalties; the reverse onus for appeals to the Environmental Tribunal (guilty until proven innocent); and the penalties and reverse onus for directors and officers of any company prosecuted for an offence.

In a release dated Jan. 25, 2005, your Ministry of the Environment (MOE) communications adviser says the “environmental penalties . . . would only apply to about 140 major industrial facilities. The penalties would not apply to municipalities or farms. The sectors covered by the penalties would be: petroleum refining, iron and steel, mining, pulp and paper, metal mining and reefing [sic],, inorganic chemicals, and electric power generation.” Why would the MOE target only the sectors on its “hit list” and ignore others? The Walkerton disaster — the most deadly environmental disaster in recent Ontario history — was caused by effluent from a farm getting into the water supply of a municipality that was guilty of failing to notify the MOE and residents of the contamination, and by the failure of municipal employees to treat the water and the failure of the municipality to stop using the well.

If Bill 133 had been in force and included municipalities, Walkerton’s mayor and council and the local farmer could have been held liable, and they all could have been fined and possibly imprisoned. Meanwhile, the City of Toronto routinely releases sewage into Lake Ontario, necessitating the closure of local beaches every summer; yet this proposed legislation leaves them exempt. This approach to law enforcement is in breach of the basic principle that the law should apply equally to all.

An example of how the reverse onus aspect of this new legislation might be enforced would be a vehicular accident where a truck hauling gravel at a mine site tips over and spills gravel into a stream. The accident could be caused by some unforeseeable malfunction of the braking system of the truck. The broad definitions within the legislation would allow prosecution for the discharge of a substance into the environment, whether or not it actually caused environmental damage. The ministry could say that silt “might” adversely affect the stream and impose fines. The defendant would then face a legal nightmare in an attempt to prove his innocence. The defendant company and directors would have to prove they did everything possible to assure the mechanical integrity of their equipment, that they trained their employees to respect the environment, that they screened the engineering company contracted to design the road, etc; and they still could be found guilty. Meanwhile, tonnes of sand and salt are poured on to our highways every year, draining into countless streams throughout the province — yet no charges are laid against the Ministry of Transportation. This approach is a reversal of the basic principle of “innocent until proven guilty” and should be repealed.

The Draconian penalties, arbitrary definitions, reverse onus principle, and targeting/ exemption proposals in the bill should be amended to comply with common sense and basic principles of justice. Bill 133 is a panic reaction to Walkerton that ignores the facts and lashes out at a target group while ignoring other major sources of pollution that occur on a daily basis, such as effluents from farms and municipalities. In our opinion, this piece of legislation is so deeply flawed that it should be sent back for a complete rewrite.