October 1, 1995

Dear Friend:

Before world leaders gathered in Halifax for June’s G-7 summit, organizers fretted over an embarrassing problem: one of the city’s sewage pipes emptied just outside the meeting site, spewing raw sewage into the otherwise scenic harbour. Worried that foreign dignitaries and journalists would smell sewage and spot floating condoms, tampon applicators and toilet paper, politicians devised a plan. Their proposal? To extend a submerged pipe into the harbour, improving the view and sparing the visitors’ noses. The federal government ended up scrapping the plan, but not because merely hiding the sewage wouldn’t solve the problem. On the contrary, it simply deemed the $1 million project too expensive.

This spring, West Coast bureaucrats faced a different sort of sewage problem. Two years earlier, environmentalists and fishermen, incensed by Vancouver’s dumping of human excrement and toxic chemicals into Burrard Inlet, had launched a private prosecution under the federal Fisheries Act, which forbids anyone from poisoning waters in which fish live. The provincial Crown soon took over the case from the private complainants, as is its policy, to ensure that prosecutions that proceed are in “the public interest.” Then, in May, in an abrupt reversal, the Crown’s special prosecutor dropped the charges, explaining that the provincial and local governments had an unwritten agreement to allow the discharge of raw waste from overloaded pipes.

In Ontario, the government has also tacitly approved pollution, by sewage, of the province’s lakes and rivers. Last fall, when the provincial auditor announced that 24 percent of Ontario’s sewage treatment plants—many operated by the province itself—fail to meet provincial guidelines, the environment minister urged reporters not to convey to their readers the impression that provincial waters are unsafe. Apparently unconcerned that his own ministry’s reports of long-standing compliance problems—reports, for example, that of the 91 plants not complying with effluent guidelines in 1991, 36 had failed to comply five years in a row—could indicate serious threats to our health and environment, he blithely defended his government’s efforts to protect Ontario’s waters.

The above stories are by no means isolated cases. All across the country, sewage threatens fisheries and human health, closes beaches and casts an aesthetic blight on our precious waters, with untold social, economic and environmental consequences. Some of this pollution violates provincial water quality standards but is ignored by sympathetic regulators. Other pollution—particularly the toxic metals and chemicals often found in treatment plant effluents—escapes provincial regulation entirely.

But the problem doesn’t lie in an absence of laws prohibiting sewage pollution. The federal Fisheries Act makes it illegal to put even minuscule amounts of any “deleterious substance” into “water frequented by fish,” providing for fines of up to $1 million a day and, for repeat offenders, three-year prison terms. And riparian rights—a form of common law property rights—enable pollution victims to obtain court injunctions against those who foul lakes or rivers flowing past their property. Preventing even subtle changes, such as the hardening or warming of water, traditional riparian law surpasses the zero discharge regulations now sought by many environmentalists.

The problem lies in governments’ refusal to enforce existing laws, and in their reluctance to let aggrieved citizens take enforcement into their own hands. In some provinces, such as British Columbia and Alberta, governments intervene as a matter of course in Fisheries Act prosecutions, taking control out of the hands of concerned citizens. In other provinces, such as Ontario, governments have overridden common law property rights with laws and regulations shielding polluting sewage treatment plants from civil lawsuits.

Governments’ reluctance to allow citizens to enforce anti-pollution laws is hardly surprising, since legal actions would often be directed at the governments themselves, as the operators of many of the offending sewage treatment plants. They also fear that tougher enforcement would result in their having to fund improvements to municipally operated plants. Governments thus find themselves paralysed by conflicts of interest, loath to spend the money required to upgrade sewer systems and sewage treatment plants, and determined to keep the courts from forcing them to act.

Breaking the deadlocks that occur when governments both operate (or finance) and regulate sewage systems requires either changing the operator or changing the regulator. We can’t change the regulator: regulation is the proper role of government. But we can change the operator. By getting governments out of the sewage treatment business, we can begin to restore their regulatory integrity. Governments will police privately operated sewage treatment plants more effectively than they have policed public plants: requiring all plants to meet tough effluent standards won’t cost them scarce tax dollars. Such has been the experience in the U.K., where the government privatized water supply and sewage treatment in 1989. Required by the government to meet strict standards, the U.K.’s new water and sewer companies are taking on polluters—powerful lobbies, such as farmers, that governments had long refused to tackle—and spending over six billion dollars upgrading sewage infrastructure. The result? Dramatic reductions in pollution, in many places bringing the U.K. in line with European Community water quality standards for the first time.

There is an even more effective way to resolve the current environmentally disastrous conflict of interest between operators and regulators. By strengthening citizens’ rights to clean water, we can turn ordinary citizens into vigilant regulators. Governments should stop interfering with private prosecutions brought by concerned citizens under the federal Fisheries Act. And they should restore common law property rights to clean water. Fighting sewage polluters in the absence of political interference is hard enough; with governments on the side of the polluters, the battles become virtually unwinnable.

Sewage pollution is not new to Canada: Halifax has been dumping raw waste into its harbour for almost 250 years. But events of the last year in Nova Scotia, British Columbia and Ontario remind us that we can’t rely on governments, wearing two hats as both operators and regulators, to correct our long-standing sewage problem. Please support our work to get governments out of the sewage business and to empower citizens to take polluters to court when governments refuse. With these reforms we can prevent further deterioration of our lakes, rivers and oceans, and begin to clean up the damage that has already been done.

Sincerely,

Elizabeth Brubaker
Executive Director