March 7, 2003
OMYA decree makes farce of due process
Michael Cassidy and Carol Dillon
Three years ago, OMYA (Canada) Inc. filed an application with Ontario's Ministry of the Environment to take up to 4.5 million litres of water a day from the Tay River for use in its calcium carbonate plant near Perth.
That application provoked a storm of reaction and controversy that continues to this day. A total of 283 citizens filed objections to OMYA's proposal after it was posted on Ontario's Environmental Registry. After OMYA received a permit, eight appeals were filed with the provincial Environmental Review Tribunal. The tribunal held 35 days of hearings, then issued a ruling that held the company to one-third of its original demand.
This historic ruling marked the first time citizens had successfully concluded an appeal under Ontario's 1993 Environmental Bill of Rights. OMYA appealed, however, and on Valentine's Day this year, Environment Minister Chris Stockwell overruled the tribunal and restored OMYA's permit to what it originally sought.
Does the minister's decision mean the controversy over OMYA's water-taking is over? If the response from citizens and the media since Feb. 14 is any guide, the answer is definitely not. Here are some of the questions following Mr. Stockwell's decision that we believe need to be addressed:
- What does a promise mean? Ontario's Ministry of the Environment has adopted a "Statement of Environmental Values" as a cornerstone of its environmental policy under the Environmental Bill of Rights. One of the guiding principles in the statement is that the ministry "will exercise a precautionary approach in its decision-making" and "will exercise caution in favour of the environment."
Last year, the Ontario government said it had accepted all the recommendations of Justice Dennis O'Connor's inquiry report on the Walkerton tainted-water disaster. It promised to enact tough policies to keep water safe and to protect water sources.
Mr. Stockwell's decision fails to exercise caution and fails the Walkerton test. It sets a dismal precedent for future environmental decisions under the present government: In any conflict between citizens and corporations, you can bet that the company will win.
- Does the ecosystem matter? The ministry's Statement of Environmental Values also promises that it "will adopt an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water, and living organisms, including humans, and the interactions among them."
That policy treats people and communities as a crucial part of the natural environment. Mr. Stockwell overturned the tribunal's OMYA decision, however, mainly on the basis of a federal Department of Fisheries report that dealt almost exclusively with the project's impact on fish.
- Is OMYA's need for water real? The minister's decision could give OMYA enough water to make eight million tons of calcium carbonate product per year -- eight times its current production, and far more than it could hope to produce by the end of a seven-year permit. Mr. Stockwell does require that OMYA demonstrate any increased water-taking "is required and can actually be used," but his decision provides for no public input or scrutiny.
- Is the Environmental Bill of Rights worth it? Only one of the eight appellants contesting the OMYA permit -- the Council of Canadians -- had legal counsel. None of the rest of us had ever taken part in an administrative tribunal. Both OMYA and the Ministry of Environment had teams of experienced lawyers.
The OMYA appeal generated more than 150 reports and documents filed as exhibits. Two dozen witnesses were called. The transcripts make a pile more than a metre high. Pauline Browes, the tribunal chairwoman, conducted a fair and thorough hearing. What was unfair about this process was to have all our work undone by a minister who took the company's side and gave little weight to our contribution or to the tribunal's balanced review of the issues.
When environmental issues such as OMYA's water permit arise in the future, citizens may well hesitate to devote all the effort that we put into the OMYA appeal. What point is there, they may ask, if the game is played like Snakes and Ladders, and you wind up back where you began?
Michael Cassidy, a former Ontario NDP leader and a cottager in Tatlock, and Carol Dillon of Perth, were appellants in the tribunal hearings into OMYA's water permit.