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Putting the pieces together : tracing fragmentation in Ontario water governance Cook, Christina Lillian 2011

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Putting the Pieces Together Tracing Jurisdictional Fragmentation in Ontario Water Governance by Christina L. Cook  B.Sc., The University of British Columbia, 1996 LL.B., The University of Victoria, 2000  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies (Resource Management and Environmental Studies)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2011 c Christina L. Cook 2011  Abstract This socio-legal study of fragmentation in Ontario water governance is positioned at the nexus of governance studies and the study of water management. It investigates the legal institutions that contribute to fragmentation in water governance, the associated governance patterns, and the consequences for Ontario water management. This is highly relevant in the Canadian context because jurisdictional fragmentation is frequently cited as a key barrier to improved water management outcomes. Three questions guided this research: (1) How did legal institutions create conditions in which governance is more or less fragmented? (2) How does fragmentation occur? (3) Is fragmentation a problem? To answer these questions the dissertation undertakes a comprehensive, but focused, historical review of water governance in Ontario from Confederation to 2010. The dissertation relies on four sources of data: a review of federal and provincial government documents in Canada; engagement with the academic literature, jurisprudence (Canada, UK, and USA); and data derived from thirty-three interviews and direct observation at four academic and professional water policy conferences. The dissertation makes three key findings. First, legal institutions are sources of jurisdictional fragmentation, creating conditions in which water governance can be more or less fragmented. Second, the dissertation finds jurisdictional fragmentation is associated with a variety of governance patterns. Finally, it finds the water governance and management literature has not been sufficiently critical of the fragmentation-integration challenge, too frequently framing integration as a solution without its own challenges. Fragmentation may or may not be a problem depending on the context; the consequences of fragmentation are variable. These findings are important for moving policy forward. Jurisdictional fragmentation is a key feature of Canadian governance as well as an important feature of governance initiatives that seek to engage stakeholders in place-specific management solutions.  ii  Preface Approval from the UBC Research Ethics Board was required for this research which was conducted under UBC BREB H08-01157 entitled Developing a Canadian Water Security Framework as a Tool for Improved Governance for Watersheds.  iii  Table of Contents Abstract  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ii  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  iii  Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . .  iv  Preface  List of Tables  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii  List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii List of Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . .  ix  Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . xii Dedication  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii  1 Introduction . . . . . . . . . . . . . . . . . . . . 1.1 General introduction . . . . . . . . . . . . . . 1.1.1 Water governance debates in Canada: Walkerton . . . . . . . . . . . . . . . 1.1.2 Water governance and management in nitions of key terms . . . . . . . . . . 1.1.3 Contributions of this dissertation . . . 1.2 Focus and scope of dissertation . . . . . . . . 1.2.1 Research focus . . . . . . . . . . . . . 1.2.2 Scope . . . . . . . . . . . . . . . . . . 1.3 Theoretical framing . . . . . . . . . . . . . . 1.3.1 Governance and management . . . . 1.3.2 Water: the institutional dimensions . 1.4 Research methods and data collection . . . . 1.4.1 Case study: Ontario . . . . . . . . . . 1.4.2 Data collection . . . . . . . . . . . . . 1.5 Dissertation structure and outline . . . . . .  . . . . . . . . . . . . . . . . . . The legacy of . . . . . . . . . Canada: Defi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1 1 2 3 5 6 6 7 7 8 13 16 19 19 22 iv  Table of Contents 2 Water management and governance in Canada: perspective . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction: The challenge of fragmentation . 2.2 Types of fragmentation . . . . . . . . . . . . . 2.3 The integration-fragmentation challenge . . . . 2.3.1 Fragmentation as a problem . . . . . . 2.3.2 Integration as a solution . . . . . . . . 2.4 Governance patterns and fragmentation . . . 2.5 The Canadian context . . . . . . . . . . . . . . 2.5.1 Constitutional water-related authorities 2.5.2 Federalism . . . . . . . . . . . . . . . . 2.6 Conclusions . . . . . . . . . . . . . . . . . . . .  A socio-legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3 The evolution of Ontario water governance . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Water law at Confederation in Ontario . . . . . . . . . . . . 3.2.1 Riparian rights . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The rule of capture . . . . . . . . . . . . . . . . . . . 3.3 Governing water in a new province . . . . . . . . . . . . . . . 3.3.1 Municipal waterworks in southern Ontario . . . . . . 3.3.2 The IJC and managing the Great Lakes . . . . . . . . 3.3.3 Watershed management and Conservation Authorities 3.4 Water governance in post-war Ontario . . . . . . . . . . . . . 3.4.1 A stalemate in multi-level governance . . . . . . . . . 3.4.2 Coordinating governance in the Great Lakes . . . . . 3.4.3 Linking land and water governance . . . . . . . . . . 3.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . .  25 25 26 29 31 33 37 40 43 46 52 53 53 54 54 57 57 58 59 65 66 67 72 74 78  4 Jurisdictional fragmentation in contemporary Ontario water governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 4.2 Implementing integrated approaches in water governance . . 81 4.2.1 Federal water governance . . . . . . . . . . . . . . . . 81 4.2.2 Provincial water governance . . . . . . . . . . . . . . 85 4.3 Multi-level governance in the Great Lakes . . . . . . . . . . . 93 4.3.1 Managing quality . . . . . . . . . . . . . . . . . . . . 94 4.3.2 Managing quantity . . . . . . . . . . . . . . . . . . . 100 4.4 The Walkerton tragedy and its immediate aftermath . . . . . 104 4.5 Water policy in Ontario after Walkerton . . . . . . . . . . . . 106 4.6 Governing water in 21st century Ontario . . . . . . . . . . . . 111 v  Table of Contents 4.7  Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121  5 Examining jurisdictional fragmentation in land-use planning and water management in Southern Ontario . . . . . . . . . 123 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 5.2 The purposes of planning . . . . . . . . . . . . . . . . . . . . 124 5.2.1 Purposes of the Planning Act . . . . . . . . . . . . . . 126 5.2.2 Statements of Environmental Values . . . . . . . . . . 126 5.3 The land use framework for Southern Ontario . . . . . . . . 131 5.3.1 The land-use planning framework and water . . . . . 132 5.3.2 The growth management framework . . . . . . . . . 138 5.3.3 Place-based environmental planning in the GGH . . . 141 5.3.4 Growth and conservation in the GGH . . . . . . . . 146 5.4 Water management and land-use institutions . . . . . . . . . 148 5.5 Source protection . . . . . . . . . . . . . . . . . . . . . . . . 155 5.5.1 Clean Water Act . . . . . . . . . . . . . . . . . . . . . 157 5.6 Synthesizing fragmentation . . . . . . . . . . . . . . . . . . . 170 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 6 Conclusions . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . 6.2 Synthesis of key findings . . . . . . . . . 6.3 Contributions . . . . . . . . . . . . . . . 6.4 Strengths and limitations of this research 6.5 Future research . . . . . . . . . . . . . . 6.6 Policy implications . . . . . . . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  . . . . . . .  177 177 179 181 182 184 185  Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188  Appendices Appendix A: Sample interview questions . . . . . . . . . . . . . 217 Appendix B: Anonymized list of interviewees . . . . . . . . . . 219 Appendix C: Constitutional division of powers Appendix D: Prescribed drinking water threats  . . . . . . . . . 221 . . . . . . . . 225  vi  List of Tables 1.1  Interviews by employer group . . . . . . . . . . . . . . . . . .  21  2.1 2.2 2.3  Jurisdictional and spatial scales in Canada . . . . . . . . . . . Sources of jurisdictional fragmentation in Canada . . . . . . . Descriptive table of governance patterns associated with jurisdictional fragmentation . . . . . . . . . . . . . . . . . . . .  27 28  4.1  39  4.2 4.3  Water quality mandates of the eight main federal ministries with water-related responsibilities . . . . . . . . . . . . . . . . 112 Direct and indirect provincial water management ministries . 114 MOE and MNR water divisions, branches, and programs . . . 117  5.1 5.2 5.3  Provincial and municipal land-use institutions . . . . . . . . . 132 Place-based plans and ministries . . . . . . . . . . . . . . . . 142 Ministries, land-use and water management institutions . . . 150  vii  List of Figures 1.1  Map of the Great Lakes Basin . . . . . . . . . . . . . . . . . .  18  4.1  Areas of Concern in the Great Lakes-St.Lawrence River Basin Basin in 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . .  95  5.1 5.2 5.3 5.4 5.5  The Greater Golden Horseshoe . . . . . . . . . . . . . . . . . The Greenbelt Plan, including the lands of the Oak Ridges Moraine and the Niagara Escarpment . . . . . . . . . . . . . . Places to Grow Concept, Schedule 2 to the Greater Golden Horseshoe Growth Plan, 2006 . . . . . . . . . . . . . . . . . . The Grand River Watershed including Regional Municipality of Waterloo and Six Nations Reserve . . . . . . . . . . . . . . Lake Erie Source Protection Region . . . . . . . . . . . . . . .  139 144 147 156 160  viii  List of Acronyms AOCs  Areas of Concern  CA Act  Conservation Authorities Act  CAs  Conservation Authorities  CCME  Canadian Council of Ministers of the Environment  CMHC  Central Mortgage and Housing Corporation  COA  Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem  CORE  Commission on Resources and Environment  DOE  Department of Environment  EBR  Environmental Bill of Rights  ECO  Environmental Commissioner of Ontario  ELTO  Environment and Land Tribunals Ontario  ERT  Environmental Review Tribunal  FBC  Fraser Basin Council  GGH  Greater Golden Horseshoe  GGH Growth Plan Greater Golden Horseshoe Growth Plan, 2006 GLWQA  Canada-US Great Lakes Water Quality Agreement  GRCA  Grand River Conservation Authority  GRCC  Grand River Conservation Commission  GRSPA  Grand River Source Protection Area ix  List of Acronyms GWP  Global Water Partnership  HVAs  Highly Vulnerable Aquifers  IPZs  (surface water) Intake Protection Zones  IWRM  Integrated Water Resources Management  LaMPs  Lakewide Management Plans  MMAH  Ministry of Municipal Affairs and Housing  MNR  Ministry of Natural Resources  MOE  Ministry of the Environment  MOEE  Ministry of Energy and the Environment  MOI  Ministry of Infrastructure  MOT  Ministry of Transport  NEP  Niagara Escarpment Plan  NEPDA  Niagara Escarpment Planning and Development Act  NGO  Non-governmental Organization  NRTEE  National Round Table on the Environment and the Economy  NTFEE  National Task Force on the Environment and the Economy  Oak Ridges Act  Oak Ridges Moraine Conservation Act  OCWA  Ontario Clean Water Agency  OMAFRA  Ontario Ministry of Agriculture, Food, and Rural Affairs  OMB  Ontario Municipal Board  ORMCP  Oak Ridges Moraine Conservation Plan  OWRC  Ontario Water Resources Committee  OWRCA  Ontario Water Resources Commission Act x  List of Acronyms OWRD Committee Ontario Water Resources Directors Committee OWRS Committee Ontario Water Resources Supply Committee PBH  Provincial Board of Health  PCB  Pollution Control Board  PLUARG  Pollution from Land Use Activities Reference Group  PPS  Provincial Policy Statement  PtG  Places to Grow Act, 2005  RAPs  Remedial Action Plans  RMW  Regional Municipality of Waterloo  SEVs  Statements of Environmental Values  SGRAs  Significant Groundwater Recharge Areas  SPA  Source Protection Authority  SPC  Source Protection Committee  SPR  Source Protection Region  TRSPA  Toronto Region Source Protection Area  UNWWAP  United Nations World Water Assessment Programme  WPAs  Wellhead Protection Areas  xi  Acknowledgements I am thankful to my supervisory committee for their dedication to, and support of, this project. Thank you to my supervisor, Karen Bakker, for her support, intellectual rigour, and dedication to research. Thank you to Doug Harris for sharing his expertise in property law and written composition, and to Leila Harris for her insightful questioning. Additionally, I thank Professors Terre Satterfield, Natasha Affolder, Wes Pue, and Michael Byers for the wise counsel they provided along the way. Thanks also to Hadi Dowlatabadi, who, over a coffee several years ago, gave me reason to think undertaking graduate studies at the Institute for Resources, Environment, and Sustainability might be a good idea—it has been a wonderful journey. Thank you to all those who participated in this research, and who took the time to discuss fragmentation with me. I am thankful for the administrative support at IRES, and to the Program on Water Governance, with special thanks to Gemma Dunn. This journey has been enriched by a great community of colleagues at UBC—a group that both works and plays hard, and believes in collaboration. Especially, thanks to the Group of Seven, Brian, Jacquie, Sarah, and the Toms. Thanks to Michael and Jen, for many great dinners and much fun at the movies and the symphony. Thanks to Jane, for the fantastic adventures in skate skiing. Thanks to Shauna, for always challenging me. Thanks to Sonja, for sharing. And, thanks to Alice, for walking so much of this journey with me as a colleague, and as a friend. To my friends outside of academia—thank you for not asking “are you nearly done” too frequently. Special thanks to Bill, Kristen, Ash, the folks at 4654, and Farhad. And, finally, to my parents, thank you for always being there for me.  xii  Dedication For the ladies at AYV who kept the light on.  xiii  Chapter 1  Introduction 1.1  General introduction  The purpose of this dissertation was to investigate (i) legal institutions that create conditions of fragmentation in water governance; (ii) the practices and patterns of governance thereby produced; and (iii) the consequences for water management. Three questions guided this research: (1) How did legal institutions create conditions in which governance is more or less fragmented? (2) How does fragmentation occur? (3) Is fragmentation a problem? In situating the answers to these questions in a comprehensive, but focused, historical review of water governance in Ontario, the dissertation shows how jurisdictional fragmentation is associated with different governance patterns. This study of fragmentation in Ontario water governance is positioned at the nexus of governance studies and the study of water management from a socio-legal perspective. It focuses on the interrelationship between legal institutions and the governance patterns they produce, to argue that the outcomes of jurisdictional fragmentation are varied. Jurisdictional fragmentation is associated with governance patterns that are cooperative, conflictual, or reactive; moreover, these patterns may vary over time. This is an important finding, for two reasons. First, it implies that jurisdictional fragmentation is not always negative; on the contrary, it may be functional in some contexts. Second, it implies that jurisdictional fragmentation is a reality that is unlikely to change (at least in Canada); however, given that a range of governance patterns may be produced, policy-makers can direct integration efforts more effectively. What is the relevance of a socio-legal study of jurisdictional fragmentation to water management (and, indeed, environmental management) more generally? Briefly, although threats to the sustainability of global water resources are multiple (e.g. increased human development and urbanization, pollution, climate change, and unsustainable use), poor governance—in both the developed and developing world—has recently been identified as a significant challenge. The developing world faces many of the greatest water governance challenges, but countries of the developed world are not 1  1.1. General introduction immune (UNWWAP, 2009), although they may be better placed to address such challenges given greater economic and technological capacities (Vörösmarty et al., 2010). Even Canada, with its considerable and enviable water resources, has acute water management and governance challenges (Sprague, 2007; Phare, 2009; NRTEE, 2010; Bakker, 2007; Council of Canadian Academies, 2009; Standing Senate Committee on Energy, the Environment and Natural Resources, 2005). Many of these stem from Canada’s overarching governance structures, which pose specific challenges for the management of water resources and the environment (Harrison, 1996; Parson, 2001; Paehlke and Torgerson, 2005). Within this broader context, fragmentation in water governance has increasingly been cited as a key challenge to improving water management outcomes in Canada and abroad. However, in these discussions (and particularly in Canada), jurisdictional fragmentation is rarely precisely defined, and its legal bases are rarely scrutinized. It is this gap that this dissertation addresses. Accordingly, the dissertation analyzes the dimensions, sources, and implications of jurisdictional fragmentation in water governance in Ontario, Canada. Ontario is a key site for examining jurisdictional fragmentation because it has long dealt with a high degree of jurisdictional fragmentation. Located on the shores of the Great Lakes, the Province of Ontario has long been engaged in transboundary water management along with the federal government and multiple American states. As well, the province was one of the earliest adopters, in Canada, of watershed management having established conservation authorities in 1946. Moreover, recent reforms in Ontario (notably legislation pertaining to source water protection, water supply and public health, and the governance and financing of water utilities) have placed it at the forefront of the sustainable water management agenda in Canada. The province is currently a leader in water governance reform and the results of its current experiments are being closely scrutinized. All of this implies that Ontario is a relevant case study within Canada, and indeed beyond.  1.1.1  Water governance debates in Canada: The legacy of Walkerton  The increased attention paid to water governance over the past decade must be placed in the context of Canada’s greatest water management tragedy to date. That occurred in Walkerton, Ontario, in May 2000, when drinking water contaminated with E.coli killed seven people and sickened over two thousand. Subsequent water quality management challenges in Canada have 2  1.1. General introduction included a Cryptosporidium outbreak in North Battleford, Saskatchewan; E.coli contamination in Kaschechewan, a First Nations community in northern Ontario; and various continuous boil-water advisories on many First Nations reserves1 and in rural communities (Phare, 2009; Eggertson, 2008; Ecojustice, 2010). Canada has not been immune to water quantity challenges either: drought and inundation have been felt across the country in the last decade (Summerland 2003; Tofino 2006; Alberta and Saskatchewan 2008, 2009; Richelieu, Assiniboine, and Fraser Rivers, 2011). The Walkerton tragedy brought new attention to water management, especially to water quality, in Ontario and across Canada. Led by Mr. Justice O’Connor, the Walkerton Inquiry examined the tragedy and called for a multi-barrier approach to drinking water security in Ontario, including binding drinking water quality standards. Ontario’s post-Walkerton innovations were implemented in the context of other changes in Canadian water governance, including increased delegation by governments and increased participation by citizens (Nowlan and Bakker, 2007).  1.1.2  Water governance and management in Canada: Definitions of key terms  Recent reports on water governance in Canada highlight its complexity and fragmentation as major contributors to poor water management outcomes (Ecojustice, 2010; NRTEE, 2010; Morris et al., 2007). In a review of water sustainability and the future of Canada’s natural resource sectors, the National Round Table on the Environment and the Economy (the “NRTEE”) notes “governance and management of water is very complex” leading to a number of challenges (NRTEE, 2010, p. 20). Here, the activities of governance and management are usefully distinguished. Governance is the process through which decisions regarding allocation, use, and access are taken. Management is the quotidian activity of executing the decisions made in the governance process. Regarding Canadian water governance, the NRTEE stated it “is a complicated and fragmented collection of statutes and policies, involving all levels of government” (NRTEE, 2010, p. 20). A group of Canadian water experts 1  See Ecojustice (2010) for summary of developments to April 30, 2010 on First Nations drinking water quality legislation. The federal government’s promise to develop a strategy on First Nations drinking water culminated in Bill S-11, Proposed Safe Drinking Water for First Nations Act that was introduced in the Senate on 26 May 2010 (Auclair and Simeone, 2010). The Bill met with opposition from First Nations leaders, who were especially concerned with the impact of the bill on their treaty rights (Fallding, 2010).  3  1.1. General introduction calling for federal government action on water policy argues key challenges of Canadian water governance include “jurisdictional fragmentation, gaps in responsibility, and a lack of coordination” (Morris et al., 2007, p. 26). These reports paint a picture of Canadian water governance in which “all levels of government” and innumerable statutes and policies leave gaps in responsibility and contribute to poor water management outcomes. For example, commentators have lamented the absence of federal drinking water legislation that would ensure all Canadians have access to safe water (Ecojustice, 2010). However, much to the frustration of many, the federal government resists legislating national water quality standards preferring to coordinate and cooperate with the provinces and territories to develop national guidelines. Importantly, water governance does not operate in isolation, but rather within a broader governance landscape. In Canada, provincial governments are primarily responsible for water management, although the federal government does have water-related legislative authorities (e.g. fisheries and navigation). In addition, municipalities have particular responsibilities to supply water services to their citizens. And, Aboriginal governments have an evolving (if unresolved) role in water management and governance. Within the levels of government, especially the federal and provincial governments, multiple departments, agencies, and ministries invested in the water portfolio create considerable inter- and intrajurisdictional fragmentation. To date, fragmentation has been minimally characterized and explained in Canada, although it has been lamented as a major barrier to improved water management outcomes in Canada. The dissertation is motivated by a desire to describe and explain fragmentation in water governance in Canada, generally, and Ontario, specifically, to better understand its consequences. Water management involves balancing “the interdependencies between, in particular, upstream and downstream effects, water quality and water quantity, and water and adjacent land-use resources” (Moss, 2004, p. 87). To do this balancing, the water management literature has encouraged increased integration and reduced fragmentation in water governance and management. Integration efforts are prescribed for both human systems and natural systems. In human systems institutions, sectors, territories, organizations are to be integrated (Fischhendler and Heikkila, 2010; Kidd and Shaw, 2007). Natural system integrations include land and water, surface and groundwater, water quantity and quality, upstream and downstream, and marine and freshwater (Kidd and Shaw, 2007, p. 318). Legal institutions can be key barriers to integration in environmental management, especially when they focus on single issues and objectives (Margerum, 1999, p. 155). Frag4  1.1. General introduction mentation or narrow focus in legal institutions “translate[s] through policies, structure and culture of an organization” (Margerum, 1999, p. 155). That is, legal institutions can impact governance practices and patterns by driving policies, as well as the structure and culture of government ministries and agencies.  1.1.3  Contributions of this dissertation  The dissertation makes three empirical contributions. First, it provides a comprehensive history of evolving water governance in Ontario in a multiscalar, multi-jurisdictional analysis. This analysis reveals that jurisdictional fragmentation is not a stable state, but rather, constantly evolving. Greater complexity and uncertainty in water management — in part, because of more and varied uses for water and, in part, because scientific advancements — are associated with the sustainability agenda from the mid 1980s onward. Second, the dissertation contributes an analysis of the socio-legal basis for jurisdictional fragmentation in Ontario water governance. The dissertation describes the legal institutional foundations of jurisdictional fragmentation to show that fragmentation is embedded in water governance. Most of the writing in this area has been done by water resources experts; this contribution is unique because it studies jurisdictional fragmentation from a socio-legal perspective. Third, the dissertation finds jurisdictional fragmentation may have multiple consequences. Importantly, cooperative governance patterns can be linked with innovation and progress on a management issue. Conversely, conflictual governance patterns may lead to stalemates; while reactive governance patterns may be likely to lead to piecemeal responses only addressing part of a problem. The dissertation makes three conceptual contributions. This is the first time that a systematic socio-legal perspective has been brought to bear on issues of jurisdictional fragmentation in water governance debates in Canada. The dissertation examines how legal institutions create conditions in which governance is fragmented and finds some legal institutions are more sedimentary, or foundational, than others. The articulation of the legal institutions of water governance shows that jurisdictional fragmentation can be met by a range of governance patterns. This insight reveals that the consequences of jurisdictional fragmentation are not automatic or predictable. Second, the dissertation problematizes assumptions about jurisdictional fragmentation. I frame the central challenge of water governance and management as a tension between integration and fragmentation and find the 5  1.2. Focus and scope of dissertation water management literature is under-critical of the benefits (and limits) of integration. For example, rescaling to the watershed, a form of integration, is a popular solution to water management challenges. It integrates issue management at a spatial scale, and through collaborative processes, increases the number of stakeholders engaged. But, since only some decision-making is relocated to the watershed, authority is often retained by delegating governments at different scales. Thus, integration at one scale may bely fragmentation at others. Fragmentation should be seen as a core feature of the Canadian federation. Moreover, collaborative governance initiatives that engage more stakeholders contribute more fragmentation to governance institutions. Certainly, fragmentation can challenge management efforts, but equally decentralized decision-making can produce better place-based management. In taking a more benign view of fragmentation, policy-makers, managers, and stakeholders can mediate between integration and fragmentation, recognizing that finding the appropriate balance and negotiating solutions will be time consuming. Third, the dissertation findings contribute to the literature in that it finds that “good” governance does not necessarily lead to “good” outcomes. It is a marker of good governance that management outcomes are not predetermined. Studies of water governance and management highlight the tradeoffs to be made between economic and environmental priorities.  1.2 1.2.1  Focus and scope of dissertation Research focus  Using the data described below in section 1.4, the subsequent chapters of the dissertation examine key legal institutions that are sources of jurisdictional fragmentation associated with governance patterns that may be cooperative, conflictual, or reactive. The analysis proceeds as an examination of the evolution of Ontario water governance, from Confederation to the contemporary period, and the associated governance practices and patterns that emerge in response to water management issues that are inter- or intra-jurisdictional. In examining governance patterns, the research does not specifically address electoral systems or political parties. Finally, it considers the consequences of fragmentation for water governance and management today. This serves three main purposes: 1. To discuss the legal institutional sources of jurisdictional fragmentation of water governance in Ontario; and 6  1.3. Theoretical framing 2. To describe and characterize types of governance patterns that are associated with jurisdictional fragmentation; and 3. To examine some of the consequences of jurisdictional fragmentation.  1.2.2  Scope  The dissertation is a case study of fragmentation in water governance in Ontario, Canada. It takes as a starting point that water governance in Canada is complicated, multi-scalar, and that it is fragmented inter- and intra-jurisdictionally. The focus is on the provincial level of government because it has the most direct responsibility for water. The dissertation is not an exhaustive study of water governance and management in Ontario — it does not examine hydro-electricity or water use for energy generation, and it does not attend to agriculture in any great detail. Instead, it focuses on the integration of land-use and water management in southern Ontario and the key provincial ministries in that context. The dissertation begins in 1867 at Confederation to ground the discussion of fragmentation in the foundational legal institutions of water governance in Ontario and Canada. Some of the early practices of water governance and management are still with us today having sedimented into particular patterns of governance. The dissertation moves through the contemporary period ending in 2010 focussing on developments in significant legal institutions. The historical analysis is necessary to demonstrate the changing implications of jurisdictional fragmentation on governance patterns and consequences thereof.  1.3  Theoretical framing  Two concepts run through the dissertation. Here they are briefly presented to foreground the dissertation. The first is the concept of governance as used in the government to governance debates found in the political science literature and cognate disciplines. The debates are helpful for defining governance and positioning jurisdictional fragmentation in broader governance trends, as well as for distinguishing water governance from water management. The second is the concept of water as an institution. Here, the discussion narrows in on property and other institutions to frame the institutional dimensions of water governance.  7  1.3. Theoretical framing  1.3.1  Governance and management  The governance of water has been impacted by broader trends in nation-state governing. Since the mid 1990s, scholars have remarked on changes in the traditional understanding of how nation-states are governed, especially in the advanced Western democracies (Pierre and Peters, 2000; Rhodes, 1996; Stoker, 1998; Jessop, 2004a). A broad and diffuse literature on governance discusses these observed trends in societal decision-making. Much of the literature postulates a shift (of some degree) from government — where the state exerts control over society, economy, and resources (Termeer et al., 2010) — to governance — where a variety of stakeholders, from the local to the global, are engaged in decision-making. The putative transition from government (state-centric, hierarchical, top-down governing) to governance is attributed to eight factors: the financial crisis of the state (1970s); the ideological shift towards the market; globalization; failure of the state; emergence of the new public management; social change and increasing complexities; new sources of governance (regional and international); and a legacy of traditional political accountability (Pierre and Peters, 2000). Some scholars have argued that the transition to governance in which state functions have been ‘rescaled’ — outward, upward, or downward — has been so significant as to ‘hollow out’ the core of the state’s power (Rhodes, 1996). Others see the transition as less dramatic arguing the role that government plays in governance is a variable and not a constant, and. . . there are models of governance that are statecentric and some that are more society-centric. Rather than as a sharp dichotomy, however, it makes more sense to conceptualize the role of government and the state in governance as a continuum. . . (Pierre and Peters, 2000, p. 23). The literature also notes that the state’s role may vary across policy areas. The state still retains a central role, but it may now be more variable and less hierarchical than in times previous (Peters and Pierre, 2001; Jessop, 2004b,a). In this vein, Mayntz (2003) argues governance represents a cooperative mode where the participation of both state and non-state actors occurs in networks that are both private and public. Bulkeley (2005) also sees a changed role for the state suggesting governance “implies a focus on systems of governing, means for ‘authoritatively allocating resources and exercising control and coordination’ (Rhodes, 1996, p. 653) in which state actors are not necessarily the only or most significant participants” (Bulkeley, 2005, p. 877). But shifts in governance do not necessarily amount to an abdication of state power (cf. 8  1.3. Theoretical framing Norman and Bakker, 2009). Where the putative shift toward governance has occurred, multi-level governance has emerged to some degree. Multi-level governance “refers to negotiated, non-hierarchical exchanges between institutions at the transnational, national, regional and local levels” and includes the “relationships between governance processes at these different levels” (Peters and Pierre, 2001, p. 131-2). The shift from government to governance has expanded traditional governing both vertically (up and down) and horizontally (away and within) from the state. Recent literature on Canadian federalism has indicated traditional patterns of governing are changing and multi-level governance is emerging in Canada (Meekison et al., 2004). Environmental governance, in particular, has moved toward multi-level governance including the introduction of non-state actors. In particular, two trends are well-established in Canadian water governance: collaborative processes and rescaling. The 1987 National Task Force on the Environment and the Economy (the “NTFEE”) introduced collaborative environmental governance in Canada (Dorcey and McDaniels, 2001). The federal government established the NTFEE to articulate a Canadian response to the newly introduced concept of sustainable development. The NTFEE approach engaged a “diverse mix of senior government and non-governmental” representatives that settled on a multi-stakeholder process for implementing sustainable development (Dorcey and McDaniels, 2001, p. 258). Subsequently, Canadian provinces adopted the multi-stakeholder approach, an exemplar being the British Columbia Commission on Resources and Environment (“CORE”) that was concerned with addressing land use conflict, especially in regard to forestry (Dorcey and McDaniels, 2001). Enthusiasm for collaborative approaches waned with the general retrenchment on environmental policy by governments in the mid to late 1990s (Dorcey and McDaniels, 2001, p. 260-1). Some of the processes were wound up (e.g. CORE), while others were adapted and persist today (e.g. Fraser Basin Council). The Fraser Basin Council (“FBC”) has been an active multistakeholder process for collaborative governance on BC’s Fraser River since its inception in 1997, and is frequently invoked as an effective model of multistakeholder governance (personal observation). The FBC “has proven to be an effective means of coordinating action between an extremely varied range of stakeholders over a large diverse area” (Kemper et al., 2007, p. 146). Although some of the collaborative fora of the 1980s have been abandoned, collaborative environmental governance continues today in Canada as “diverse citizens. . . expect to participate in collective decisions” (Rudd et al., 2011, p. 482). 9  1.3. Theoretical framing In water governance, collaborative processes have been a response to larger governance trends including globalization and neoliberalism (Sabatier, 2005; Imperial, 2005; Nowlan and Bakker, 2007). In practice, collaborative processes or shared decision-making includes finding solutions and applying them to environmental problems through consensus-based processes (Singleton, 2002). These processes can produce locally responsive adaptations, but they are “information and decision intensive” (Lach et al., 2005, p. 12). And, integrated decisions at the local level may not translate to integration at higher levels or on other scales (cf. Edelenbos and Teisman, 2011). Nonetheless, these approaches are frequently used to “manage a variety of intractable problems” concerning the environment (Singleton, 2002, p. 54). Two major critiques of collaborative processes are that they are an “abdication” of government roles and responsibility (Singleton, 2002) and arguably represent a democratic deficit (Pierre and Peters, 2000). As Dorcey and McDaniels (2001) note it remains to be determined if ad hoc governance processes can ever be considered a legitimate delegation of power in the absence of clearly established procedures that ensure accountability (cf. Tarlock, 1999). In other words, public engagement does not necessarily equate to good governance — three key features being transparency, inclusiveness, and accountability — and in turn, good governance does not necessarily lead to good management outcomes (Lautze et al., 2011). The legitimacy of collaborative processes remains unclear and certain publics have articulated a strong preference for decision-making by democratically-elected representatives (Stoker, 1998). However, collaborative processes may ease the policy implementation process (Ansell and Gash, 2008); and they may facilitate interaction across both inter-and intra jurisdictional fragmentation at levels and branches of government to improve governance (Singleton, 2002). In this sense, collaborative processes may work to address fragmentation amongst institutions and government levels. Further, even if implementation is uneven and incomplete, an ongoing multi-stakeholder process in which cross-scale (jurisdictional fragmentation) and cross-jurisdictional (or intra-jurisdictional fragmentation) challenges can be addressed may be useful (Kemper et al., 2007). Nonetheless, participatory processes may be plagued by problems of scale and linkages between them (Singleton, 2002). These enduring barriers to effective collaboration include resistance to power redistribution; lack of capacity; and lack of trust (cf. Norman and Bakker, 2009; Singleton, 2002; Michaels, 2001; de Loë, 1991). The second trend in the shift from government to governance, especially common in environmental policy areas, is rescaling. The downscaling and 10  1.3. Theoretical framing delegation of authority in water governance has been associated with the uptake of the watershed as a governance unit (Cohen and Davidson, 2011). The watershed is perceived as a means to both enact subsidiarity and improve integration. The principle of subsidiarity “prescribes that decisions affecting individuals should, as far as reasonably possible, be made by the level of government closest to the individuals affected” (Hogg, 1997, p. 112). The counter-principle to subsidiarity is harmonization which implies the senior level of government centrally coordinates policy “ensuring equality across jurisdictions” (Hill et al., 2008, p. 319). In federations, such as Canada, there can be tension between harmonization and subsidiarity in certain policy areas. When jurisdiction is fragmented between or among government levels it can create overlaps, gaps, and interdependencies in legislative authorities. This is inter-jurisdictional fragmentation. Fragmentation can also occur intra-jurisdictionally (within a level of government). Intra-jurisdictional fragmentation occurs when multiple departments, agencies, or ministries of a government level share decision-making authority on water-related issues, and if governance has been scaled outwards to include non-state actors. Inter- and intra-jurisdictional fragmentation occur in Canada and other countries because it is common that water governance “crosses multiple levels of government and several departments within each government” (Council of Canadian Academies, 2009, p. 81). The terms water management and water governance are often used interchangeably, especially, in the water management literature and integrated water resources management (“IWRM”) policy documents. In this dissertation, however, they are treated as distinct (although interacting) concepts. Governance describes the process through which decisions are made about resources — who gets what and who decides (Bakker, 2007; Reed and Bruyneel, 2010; Ansell and Gash, 2008). Management is where decisions about how to best implement and achieve policies — which were decided through governance processes — are made (cf. Ansell and Gash, 2008). Thus, governance describes the processes wherein decisions are made; management is the activity that implements those decisions. The term ‘water governance’ emerged at the Second World Water Forum in The Hague in 2000.2 After that, water governance was taken up in policy discussions, “emerging as the most important topic in the international water community in the 21st century” (Lautze et al., 2011, p. 1). In 2006, the 2  A search for “water governance” in the Web of Science database in March 2011 returned results with the earliest occurrence in 2001. As noted by Lautze et al (2011) this is after the term was introduced at the Second World Water Forum at The Hague in 2000.  11  1.3. Theoretical framing United Nations World Water Assessment Programme (“UNWWAP”), in its second report, elevated water governance to a worldwide challenge, noting that “the world water crisis is a crisis of governance — not one of scarcity” (UNWWAP, 2006). In its third report in 2009, the UNWWAP reported no improvement: “[D]espite the vital importance of water to all aspects of human life, the sector has been plagued by a chronic lack of political support, poor governance and underinvestment” (UNWWAP, 2009). Conflation of water management and water governance further complicates attempts at understanding a complex policy area.3 Governance is now well established as a challenge in the water sector, but its definition is unstable and it is sometimes used interchangeably with management. Among the earliest and most prominent definitions of water governance are those of the Global Water Partnership and UNWWAP (Lautze et al., 2011). In 2003, both organizations used the same definition of water governance, “the range of political, social, economic and administrative systems that are in place to develop and manage water resources and the delivery of water services, at different levels of society” (UNWWAP, 2003; Rogers and Hall, 2003, p. 7)4 . UNWWAP has twice modified its working definition of water governance. The 2006 definition contemplated the systems that affects use of water resources (UNWWAP, 2006). The significance of adding “use” to the definition is that it contemplates access and allocation institutions. Three years later, UNWWAP removed the reference to use: it reverted to its 2003 definition, but added legal systems to the range of systems that develop and manage water resources. This is another way of incorporating allocation and use institutions. Reflecting the rising prominence of the concept of ecological services (cf. Salzman et al., 2001; Daily et al., 1997, 2009; Norgaard, 2010; Costanza et al., 1998), the 2009 UNWWAP definition of water governance also “recogniz[es] the role played by environmental services” (UNWWAP, 2009, p. 242). The meaning of water governance is not yet fixed in the water research and practice community. Indeed, Wouters (2008), in focusing on the legal ramifications of this definitional morass, agrees: “the concept of water governance means very different things to many different 3  One GWP Technical Paper argues that in order to apply IWRM, effective governance needs to be in place (p.30) and concludes by arguing that putting IWRM into practice will “make water governance effective” (Rogers and Hall, 2003, p. 37). The circularity of this argument is but one example of the lack of clarity of definitions of governance and management in the IWRM literature. 4 The GWP definition appears not to have evolved. In a recent Technical Committee Background Paper, entitled Water Financing and Governance a definition of water governance is not provided (Rees et al., 2008).  12  1.3. Theoretical framing people and organizations” such that some legal scholars have suggested water governance is “a misnomer” (p. 531). Therefore, caution and close reading is advised when interpreting the meaning of water governance in the literature. The dissertation focuses on fragmentation of governance processes, which has significant implications for management, but, in practice, separating the two is not always straightforward.  1.3.2  Water: the institutional dimensions  In the social sciences, institutions have been defined as “commonly understood codes of behaviour that potentially reduce uncertainty, mediate selfinterest and facilitate collective action” (Ostrom and Cox, 2010, p. 454-5). For North (1990), institutions are the formal and informal rules of the game in a society; or as reinterpreted by Green (2007) “they are the humanly devised constraints that shape human interaction” (p. 112). Rubin (1997) defines law as “both a set of norms and a system of meaning,” which approximates the social science conception of institutions (p. 558). Thus, law is one institution — one set of norms, practices, and rules — among many in society. Ostrom and Cox (2010) suggest that a study of “property rights becomes part of a more expansive study of the institutions that affect environmental conservation and natural resource management” (p.455). A socio-legal approach adopts an institutional perspective to facilitate understanding of the operation of the law. On this point, Blomley notes that the law structures the very manner in which we experience and understand social life: “[N]ot only is there no legal concept that exists in isolation from social life, but it becomes increasingly difficult to describe social practices without recognizing the legal relations among the people involved” (Blomley, 1994, p. 12). Specifically, Wouters (1999) suggests “[W]ater law and its implementation can not and should not operate in a vacuum,” but rather as “a meaningful part of the larger [governance] process” (p. 80). Institutional analysis combined with legal studies can assist “legal scholarship to develop realistic models of the law’s relationship to society in general,” and social science to understand the importance of legal institutions (Rubin, 1997, p. 554). In examining fragmentation, the research adopts a socio-legal perspective that is warranted by the importance of legal institutions in water governance (Conca, 2005; Allan and Wouters, 2004; Falkenmark et al., 2004). Salman and Bradlow (2006) report that “declarations, resolutions, and action plans issued at” international conferences on water have, since Mar del Plata in 1977, demonstrated agreement on the “relevance and importance” of “regula13  1.3. Theoretical framing tory frameworks for water resources management” (p. 10-11). More directly, Falkenmark et al. (2004) state that: [I]n broad terms, water law—at the international, national and transnational levels—defines the rules of the game and ensures that all stakeholders are involved in and provided with the mechanisms to have their needs identified and enforced (p. 302). Importantly, law is connected to improved governance of water, but its “particular role...is, however, fluid, and changes according to the context” (Allan and Wouters, 2004, p. 5). The foundation of a legal framework for water includes allocation of enforceable rights of use, as well as ecosystem protection (Allan and Wouters, 2004). Additional legal institutions include “procedural rules for the administration of water entitlements, including permit allocation, registration of rights, and the rights and responsibilities of users” as well as “dispute resolution processes, and rights of access to justice embedded in the law” (Allan and Wouters, 2004, p. 6). Thus, a number of legal institutions are critical in water resources management and governance. Under Roman law, water was common property and was not to be held privately. To this day flowing water is incapable of ownership; it can only be used (Scott, 2008, p. 64). In Canada, water is not owned privately; it remains a commons resource, or, in western Canada, a “state” resource that is then licensed to individual (including corporate) users.5 A commons resource is shared amongst a group of people according to particular rules. It is distinct from open access where there are no rules or limits on the use of the resource. Commons management becomes more challenging as a resource approaches scarcity6 and its use becomes “congested” (Rose, 1991, p. 5-6). Often this requires a new approach to management. A commons resource becomes “congested” at the point when additional sharing or use of the resource results in “increasing detrimental consequences” for all resource users (Rose, 1991, p. 6). For example, in the case of water 5 There are four different regimes for water allocation in Canada. Prior allocation (BC, AB, SK, MB, NS in part); public authority (YT, NT, NU); riparian rights (ON, NB, PE, NF, NS in part); and civil code (QC). In addition, there are aboriginal rights which have priority over all other regimes (cf. Christensen and Lintner, 2007). 6 Water scarcity can be measured by combining the indices for water stress and water shortage. The water stress index evaluates the ratio of water use to availability and estimates demand-driven apparent scarcity by measuring how much water is withdrawn from rivers and aquifers—the blue water resources. The water crowding or water shortage index estimates population-driven real water shortages by measuring the number of people that have to share each unit of blue water resource (Falkenmark et al., 2007; Falkenmark and Molden, 2008).  14  1.3. Theoretical framing quality, a certain amount of pollution — the depositing of waste in the water — will be absorbed by the system. But there is a point at which the water quality will diminish below an ‘acceptable’ level leading to detrimental consequences for all users. The case of Lake Erie where deposits of pollutants culminated in its eutrophication in the late 1960s primarily from excessive loading of nitrates and phosphates (from water and land use) demonstrates this principle. Lake Erie was a commons resource that became congested thereby requiring mobilization of a variety of “users”, eventually in the form of the Great Lakes Water Quality Agreement.7 The agreement led to significant regulatory developments to reduce pollutant loading of the Great Lakes. In Ontario, water is held by the province in right of all Ontarians.8 Water use is allocated by common law and legislation. Large volume water users are subject to legislative provisions to acquire quantity permits and certificates of approval to deposit pollutants in water. Owners of lands adjacent to watercourses have common law riparian rights. As with any commons resource, water can become a ‘tragedy of the commons’ (Hardin, 1968) where it is “overused and abused due to lack of incentives for resource users to invest in its maintenance and protection” (Buzbee, 2004, p. 8). A number of scholars, most famously Ostrom (1990), has critiqued the tragedy of commons as presented by Hardin suggesting that commons issues may be addressed in ways other than privatization of resource rights and governmental regulation. In Ostrom’s (1990) studies, common pool resources imply collective resource management including ownership and decision-making authority.9 Ostrom (1990) demonstrated that common pool resources, including water, could, in some circumstances, be managed by a group. Rights to and management of water, a fugitive resource, can be difficult to constrain for effective common pool resource management. At common law, land and water have long been deeply connected. The regime of riparian rights recognizes rights to use water to owners of land that is adjacent to watercourses. This has been abandoned in arid climates in North America (e.g. Western USA, Western Canada) and replaced with prior appropriation or prior allocation legislative schemes in which landowners need not have land adjacent to a watercourse in order to secure a water 7 The Great Lakes Water Quality Agreement will be discussed further in the dissertation. 8 There is no document to support this, but it is definitively the provincial government’s stance [Interview 5]. 9 For Ostrom (1990) common pool resource (CPR) “refers to a natural or man-made resource system that is sufficiently large as to make it costly (but not impossible) to exclude potential beneficiaries from obtaining benefits from its use” (p.30).  15  1.4. Research methods and data collection allocation. However, even in the prior allocation regime water rights are appurtenant to land titles; one still needs to own land in order to obtain water rights. A fuller elucidation of property rights in water is beyond the scope of this dissertation. The point here is that land-use rights and water rights have long been connected, and at least three important governance implications follow from that connection. First, water management typically trails landuse decision-making or is secondary to land-use planning. Second, private land ownership causes fragmented landscapes (Tarlock, 1999; Karkkainen, 2002; Freyfogle, 2003). Third, private landowners impact water quantity and quality through land-use decisions made on their individual parcels; regulation of land-use goes some way to addressing this fragmentation, but enforcement is, in many cases, challenging.  1.4  Research methods and data collection  The dissertation focuses on the Province of Ontario, because water governance in Canada is a primarily provincial responsibility pursuant to the Constitution of Canada. (Greater context for the Ontario case and why it was selected is discussed further below.) The dissertation employs a case study research design to examine fragmentation across the multiple levels and scales of Ontario water governance (Yin, 2009). This is an “embedded case study” across multiple scales of governance within one jurisdiction, where the scales are “subunits of analyses, so that a more complex — or embedded — design is developed” (Yin, 2009, p. 52). Yin (2009) notes the embedded study of “subunits can often add significant opportunities for extensive analysis, enhancing the insights into the single case” (p. 52-3). Of course, one might argue that the analysis of multiple scales, and comparison of those analyses, are necessary to produce an understanding of fragmentation. In that case, the multiple scales may not be subunits of analysis, but simply represent the depth and breadth of the study. Cast either way, the dissertation is a case study of fragmentation in Ontario that reveals the complexity of fragmentation across and within jurisdictions in one province in Canada. Critics of case studies have maligned the method for a variety of reasons: using “subjective judgments” to collect data; for being a poor basis on which to make generalizations; and being of questionable reliability (Yin, 2009). Nonetheless, case studies have emerged as a major method of qualitative inquiry in the last two decades (Flyvbjerg, 2006; Gerring, 2004; Creswell, 2007). Gerring (2004) argues that the differences between case study and 16  1.4. Research methods and data collection non-case study work are better understood as “[T]radeoffs rather than dichotomies” (p. 341). In focusing on depth necessarily breadth may be sacrificed. Equally, the opposite is true. Both Gerring (2004) and Flyvbjerg (2006) note multiple definitions of ‘case study’ exist, adding confusion in the debate of the merits of the case study. Gerring (2004) proposes defining a case study as “an intensive study of a single unit for the purpose of understanding a larger class of (similar) units” (p. 342). That is my hope with this case study: to effectively describe and critique jurisdictional fragmentation in the Ontario case to help to understand jurisdictional fragmentation challenges in other Canadian provinces. Critically, Gerring (2004) states the distinguishing feature of the case study method is “its reliance on covariation demonstrated by a single unit and its attempt, at the same time, to illuminate features of a broader set of units” (p. 343). This study of Ontario should illuminate trends related to jurisdictional fragmentation in other provinces (with sufficiently similar contexts).  17  Figure 1.1: Map of the Great Lakes Basin  ONTARIO  QUEBEC  MINNESOTA Lake Superior  St. Lawrence River  Georgian Bay  WISCONSIN Lake Huron  Lake Michigan  Lake Ontario  MICHIGAN  NEW YORK  Lake Michigan  LEGEND  Lake Erie  Drainage Basin Lake Erie ILLINOIS  PENNSYLVANIA  Lake Huron Lake Michigan Lake Ontario  18  INDIANA  OHIO  St. Lawrence River Lake Superior  qre—t2v—kes2f—sin  0 35 70  140  210  280 Kilometers  Source: Ontario Ministry of Natural Resources  This map is for illustrative purposes only. Do not rely on it as a precise indicator of feature locations. Published 28 June 2005. 2005 Queen's Printer for Ontario Ministry of Natural Resources  1.4. Research methods and data collection  1.4.1  Case study: Ontario  Fragmentation is a reality for water governance (and indeed other policy issues) across the country, but Ontario is a particularly good place to examine jurisdictional fragmentation in water governance. The province has engaged with multiple levels of government to manage its large territory for several decades. The province, in the aftermath of the Walkerton Tragedy, is a leader in water management reforms in Canada. Implementing the Walkerton Inquiry recommendations has focused the water policy efforts of provincial government since its publication in 2002. Ontario has three major watersheds: the Nelson River, Hudson’s Bay, and the Great Lakes. The Nelson watershed in the western part of the province and the Hudson’s Bay watershed in the North are less populated than the Great Lakes Watershed and therefore have been less central in Ontario’s water governance reforms. The dissertation focuses on the developments in the Great Lakes basin, shown in Figure 1.1.10 Ontario includes portions of four of the five Great Lakes and this means it necessarily deals with transboundary water management issues. It has co-managed the Great Lakes with the federal government, and several American states, for several decades. As well, having established conservation authorities in the 1940s, the province has a long experience in watershed management. Ontario’s struggles with fragmentation may be acute, but as a committed member of the Canadian federation (unlike provinces such as Quebec and Alberta that have, at times, expressed desire to leave the federation) Ontario will continue to negotiate with the federal government. There is a stability to the relationship despite serious disagreements. Taken together, these factors make Ontario a rich place in which to examine jurisdictional fragmentation in water governance.  1.4.2  Data collection  The dissertation relies on four sources of data: a review of federal and provincial government documents in Canada; engagement with the academic literature and jurisprudence; and data derived from interviews and direct observation in academic and professional water policy conferences. Multiple sources are critical to ‘triangulation’ or corroboration of evidence because they allow “the development of converging lines of inquiry” and therefore 10  The unique geography of Ontario allows the possibility of water transfers through the Great Lakes basin (i.e. from Lake Huron to Lake Ontario across a thin isthmus of land) which it has recently prohibited.  19  1.4. Research methods and data collection make the case study findings more compelling (Yin, 2009, p. 115). As is commonly the experience in case study research, I engaged with these four data sources intermittently and repeatedly. That is, the study began with review of the literature, jurisprudence, and government documents. Then, I conducted a first set of interviews and reviewed more literature before I conducted a second set of interviews. Finally, I conducted follow up interviews to clarify key elements in the dissertation. During my research, I attended four conferences related to water management and governance in Canada. One of the meetings specifically addressed a water strategy for Canada, and each of the meetings offered insight into how water managers, policy-makers, and researchers think about fragmentation in Canadian water policy. The four academic and professional water policy conferences were: the Canadian Foundation for Climate and Atmospheric Sciences Water Symposium on Canadian Water Security, May 27-28, 2010, Ottawa, ON; the Canadian Water Network Project Leaders and Program Leaders Annual Meeting, June 9, 2010, Toronto, ON; the Canadian Water Resources Association National Conference June 15-18, 2010, Vancouver, BC; and the Canadian Water Resources Association Canada-Wide Water Strategy Meeting, September 29, 2010, Toronto, ON. At these conferences, I gained insight into how academics and water professionals perceive and problematize jurisdictional fragmentation in Canadian water governance. Law and policy review The focus of the inquiry into jurisdictional fragmentation is on legal institutions. The dissertation begins with a review of the legal institutions that create the four levels of political jurisdiction in Canada. It then focuses on the legal institutions that have been used in multi-level governance to respond to particular water management issues that are complicated by jurisdictional fragmentation. The legislative and policy review is not exhaustive. Directed by both the academic literatureI reviewed, and the interviews I conducted, I focused on particular and key legal institutions — agreements, statutes, regulations, and policies — that are associated with water governance patterns in Ontario. Interviews Talking with people engaged in water management and governance was critical to appreciating the dimensions of fragmentation. The interview expanded my understanding of water governance in Ontario and the implications of  20  1.4. Research methods and data collection  Table 1.1: Interviews by employer group Employer Group Number of Interviews  Number of Individuals  Provincial (Ontario) government  10  13  Federal government  8  8  Conservation Authorities  5  5  NGOs  9  10  Municipal representatives  1  1  Total  33  37  fragmentation, far beyond what I gleaned from documentary sources and what I might have obtained from a survey. I conducted thirty-three interviews with thirty-seven people involved directly in, or with professional interest in, water management or governance in Ontario. Most of the interviews were with water policy-makers and managers at the provincial and federal governments, including a range of different ministries and agencies. Several interviews were conducted with staff members at conservation authorities, and with staff members at environmental NGOs engaged in Ontario water governance (see Table 1.1). The research design granted interviewees confidentiality, thus I am unable to reveal names of interviewees. Nor can I refer to interviewees by their specific job titles as this may reveal their identities. More than half (55%) of the interviews were conducted in May and June 2010 in Toronto; more than a third (36%) were conducted in October 2010 in Ottawa; and the remaining interviews (9%) were conducted by telephone from Vancouver between June 2010 and September 2011. The majority of the interviews was conducted in person (79%); the remainder was conducted by telephone. The semi-structured interviews lasted from thirty minutes to two hours during which I explored questions related to fragmentation: How is Ontario water governance fragmented? Why is water governance fragmented in Ontario? What are the consequences of fragmentation in water governance? How is fragmentation in Ontario water governance addressed? Appendix A provides a sample list of interview questions; questions were tailored to the individual being interviewed. Most interviews were digitally recorded and transcribed, except when the physical space was not conducive to recording (e.g. excessive background noise or a telephonic setup that did not permit recording). No interviewees refused to 21  1.5. Dissertation structure and outline be recorded. The interviews served two main purposes. Most importantly, they helped me to identify the processes of jurisdictional fragmentation and the associated governance practices and patterns that respond to jurisdictional fragmentation; and the consequences for Ontario water management. Secondly, they served to guide the research by highlighting key features and significant events in Ontario water policy. Selection of interviewees was based in part on contacts made at water policy conferences in Canada by me or by my colleagues at the Program on Water Governance. The initial group of interviewees were selected based on their demonstrated interest in water policy in Canada and willingness to participate in social science research. Additional interviewees were contacted through the snowball method in which I asked interviewees if they could suggest someone else with whom I should speak. I contacted interviewees in the first instance through email in which I provided a description of the project, an invitation to participate in the project, and a consent form in accordance with The University of British Columbia’s Behavioural Research Ethics Board requirements. The confidentiality provisions of the consent form provided that interviewees would not be identified. Therefore, throughout the dissertation, I provide minimal details in order to preserve the interviewees’ anonymity. Appendix B is an anonymized list of interviewees and their organizations.  1.5  Dissertation structure and outline  There are six chapters in the dissertation. Chapter 2 sets out the conceptual framework of the dissertation and explains the socio-legal perspective of water management. It examines the integration-fragmentation challenge in water governance, explains why fragmentation has been considered problematic, and explores how and why integration has been proposed to resolve complex water management problems. The analysis explains and describes the changes in federalism, a major institution of governance in Canada that results from the key legal institution, The Constitution of Canada, 1867. The inter-jurisdictional fragmentation in Canada prescribed by the Constitution of Canada has been mediated by socio-political institutions that have changed the nature of federalism over the years. Chapter 3 presents a historical review focused on the legal institutions of Ontario water management and governance dating from 1867 (the date of the Confederation of Canada). This historical review demonstrates that 22  1.5. Dissertation structure and outline fragmentation is not new in Canada, but is, in fact, part of the fabric of the federation. The chapter extends to 1985, the approximate time at which Canada’s approach (including Ontario’s) began to transition from more traditional water management to more integrated ecosystem approaches. The chapter shows that three types of governance patterns — cooperative, conflictual, and reactive — may emerge as a result of jurisdictional fragmentation. It examines two foundational legal institutions that have set a foundation of jurisdictional fragmentation in Canadian water governance. First, the common law connects water and land, such that water allocation is based on land ownership. This results in both integration and fragmentation in that water management typically trails (and is dependent on) land-use planning institutions and fragments the management of a commons resource — water — amongst countless private property rights holders. Second, the Constitution of Canada is further explored in the context of managing the Great Lakes: arguably the most complex, and high-profile fresh water bodies in Ontario, Canada (and indeed, globally). Chapter 4 builds on the historical review in Chapter 3 to examine water governance in Ontario from 1985 to 2010: a period in which governments grappled to implement more integrated approaches to water management. During this time period, with foundational legal institutions still in place, governments commenced with strong efforts (at the federal and provincial levels and at multiple spatial scales) to improve integration; efforts that were largely stymied by financial challenges until the Walkerton tragedy. The chapter demonstrates the continuing impact of Canada’s constitutional design, but then adds on the challenges of integration brought by new environmental management approaches. The chapter analyzes how the Walkerton Inquiry recommendations have influenced Ontario water policy in the last decade. This period shows that both inter- and intra-jurisdictional fragmentation are associated with variable governance patterns and consequences. In response to the Walkerton Inquiry, Ontario initiated a number of new policies, but has stopped short of a comprehensive water strategy. Together, Chapters 3 and 4 provide depth to the examination of jurisdictional fragmentation, and illustrate the fact that the more historical challenge of interjurisdictional fragmentation is now eclipsed by the increasingly deepening challenge of intra-jurisdictional fragmentation. Chapter 5 delves into a specific issue in current Ontario water governance that emerged from the Walkerton Inquiry: the integration of land-use and water management planning. The chapter provides a detailed analysis of the major land-use institutions in Ontario, with a focus on regional growth planning and water management provisions. Specifically, the chapter 23  1.5. Dissertation structure and outline explores the source protection program, a flagship of innovation in Ontario water governance, to analyze the extent of integration of land and water in Ontario. This analysis demonstrates that intra-jurisdictional fragmentation, especially the prioritization of land-use planning over water management, can be associated with reactive governance patterns characterized by piecemeal and minimally integrated management. Chapter 6 synthesizes the findings and concludes the dissertation. Key findings include: 1) legal institutions create conditions of jurisdictional fragmentation; 2) jurisdictional fragmentation is associated with a variety of governance patterns; 3) the water governance and management literature has been under-critical of the fragmentation-integration challenge, jurisdictional fragmentation may or may not be a problem.  24  Chapter 2  Water management and governance in Canada: A socio-legal perspective 2.1  Introduction: The challenge of fragmentation  In Canada, fragmentation in water management and governance — defined as the allocation of responsibility (for water management and governance) amongst multiple actors and/or agencies, with relatively little or no coordination (Hill et al., 2008) — is framed as persistent challenge in solving complex water management problems (NRTEE, 2010; Morris et al., 2007; Council of Canadian Academies, 2009). Practitioners and theorists interested in water management, in particular proponents of Integrated Water Resources Management (“IWRM”), conventionally identify integration as a solution to complex water management problems. This call for integration presupposes that one of the key impediments to improved water management is fragmentation, including jurisdictional fragmentation. Jurisdictional fragmentation is the fragmentation created by the interaction of political and legal institutions that hold or assign authority in a territory. A key response to jurisdictional fragmentation (including the associated problems of jurisdictional mismatch or scalar misfit) has been rescaling: governments have tried to shift the scale of governance to better fit the environmental management scale. In Ontario, watershed management is led by conservation authorities (“CAs”), but their limited mandate does not fully integrate land-use planning and watershed management. In these Canadian discussions, jurisdictional fragmentation is rarely specified or defined, and its legal bases are rarely scrutinized. This dissertation addresses this gap and argues that the implications of jurisdictional fragmentation on governance are varied and may change over time. In particular, this chapter outlines a socio-legal perspective for analysis of jurisdictional fragmentation in water management and governance in Canada. Chapter 3 then  25  2.2. Types of fragmentation analyzes the development of water management and governance institutions, with an emphasis on legal institutions, in Ontario from 1867-1985. Taken together, these chapters provide the reader with an understanding of the legal bases of jurisdictional fragmentation in Ontario water governance. This provides the necessary context for the analysis of inter- and intra-jurisdictional fragmentation in the past twenty-five years as governments have grappled with integrated management approaches in environmental and water governance in Ontario, as presented in Chapters 4 and 5. A fugitive resource, water transgresses boundaries, moving in and out of political jurisdictions, and challenging management and governance institutions. The vast and varied geography of Canada, combined with its federal structure, and many transboundary watercourses means fragmentation (of various types) is inevitable in Canada. In the Great Lakes basin responsibility for water management (e.g. drinking water quality and sewage treatment) and water-related management (e.g. fisheries and navigation) is shared by two countries, eight American states, two Canadian provinces, and myriad municipal and Aboriginal governments within the basin. In Canada, water management and governance are multi-scalar and multi-jurisdictional: multiple governments and, increasingly, non-government actors (the private sector and civil society) work at multiple scales, with non-state actors participating most frequently at the watershed level (Norman and Bakker, 2009). When multi-scalar, multi-jurisdictional water management problems arise government responses are in the context of jurisdictional fragmentation. The chapter examines the types of fragmentation, and the integration-fragmentation challenge as articulated in the water governance and management literature. Finally, the chapter examines the Canadian context for jurisdictional fragmentation by looking at the Constitution’s division of powers and the institution of federalism. The changing nature of federalism demonstrates that governance patterns in response to jurisdictional fragmentation are variable over time.  2.2  Types of fragmentation  The Oxford English Dictionary defines jurisdiction as the division of legal authority or power that extends over a territory. Thus, jurisdictional fragmentation is the fragmentation created by the interaction of political and legal institutions that hold or assign authority in a territory. In this dissertation, jurisdictional fragmentation is understood to exist when responsibility for water governance is shared amongst multiple government actors in a spatial 26  2.2. Types of fragmentation  Table 2.1: Jurisdictional and spatial scales in Canada Jurisdictional Scale  Spatial Scale  Federal government  international, national, provincial, regional, local  Provincial government  international, provincial, regional, local  Aboriginal (self-)government  (international), national, regional, local  Municipal government  regional, local  scale. Jurisdictional fragmentation can also produce a governance gap (an absence of institutions) when jurisdictional responsibility is uncertain. Table 2.1 shows the four levels of government and the scales at which they most frequently operate. Jurisdictional fragmentation, according to this definition, is of two types: inter-jurisdictional between the four levels of government in Canada; and intra-jurisdictional, within each level (when authority for matters such as land, water, and fish are divided amongst different ministries). There are, of course, many potential objections to this definition, given the multiple agencies and actors (both governmental and non-governmental) in water governance at multiple scales. But, some of these actors are subsidiary to a specific level of government: regional governments are a form of municipal government; conservation authorities, Ontario’s watershed agencies, are creatures of provincial statute. Thus for the sake of simplicity, when I refer to inter-jurisdictional fragmentation I am referring, specifically, to the inter-jurisdictional fragmentation that exists between and among levels of government. The jurisdictional fragmentation that occurs within each of those levels (or scales) is intra-jurisdictional fragmentation. The jurisdictional, territorial, and scalar fragmentation inherent in Canadian water governance (Bakker and Cook, 2011) produces a number of jurisdictional mismatches (Moss and Newig, 2010). One approach to the classic problem of institutional fit in which the boundaries of a biogeophysical system and management system do not match is rescaling — by making smaller or larger — the management system, or the framing of the biogeophysical system (Cash and Moser, 2000). Rescaling in water governance, to the regional or watershed scale, has been a popular means to improve the fit of institutions to the biogeographical system. But, the nature of water is to 27  2.2. Types of fragmentation  Table 2.2: Sources of jurisdictional fragmentation in Canada Legal Institutions  Administrative-executive institutions  constitutions statutes  cabinet ministries  regulations  Minister  common law  agencies  international treaties policies  committees  transgress political boundaries so that a perfect fit is elusive. Geographers caution against the viewing of scales as ‘ontological’, or given, and argue scales are socially constructed (Herod, 2011; Sayre, 2005; Marston, 2000; Marston et al., 2005; Moore, 2008; Kaiser and Nikiforova, 2008). However, recognizing the social construction of scale does not preclude its use as an analytical tool in the examination of fragmentation in water governance. In the dissertation, I use the concept of scale as a tool to locate the governance implications of jurisdictional fragmentation at both jurisdictional and spatial scales. The dissertation traces the implications of jurisdictional fragmentation for Ontario water governance. Having defined jurisdictional fragmentation as the fragmentation created by the interaction of political and legal institutions, the dissertation focuses on those two groups of institutions as sources of fragmentation (see Table 2.2). Legal institutions that are potential sources of jurisdictional fragmentation include constitutions, statutes, regulations, common law rules, international treaties, and policies. Political institutions, more particularly, the administrative–executive institutions that are sources of fragmentation include ministries, ministers, agencies, and committees that execute the government’s jurisdiction. Although water governance often includes non-state actors they are beyond scope of this analysis. Other types of fragmentation include temporal, territorial, and biophysical. Temporal fragmentation exists when there is a disconnection between legal institutions in time, so that the effectiveness of one institution is stymied by the existence of another institution from a different era. For example, an older piece of legislation may contain purposes or provisions that are at odds  28  2.3. The integration-fragmentation challenge with newer policies (e.g. the Drainage Act 11 and wetlands policy in Ontario). Or, different geographic territories may not be on the same timeline, such as southern and northern Ontario growth planning. Territorial fragmentation can describe the mismatched territories of different ministries and agencies within a government level. For example, in Ontario, MNR and MOE do not have co-extensive branch office territories. This fragmentation adds complication to coordination of operational efforts. Biophysical fragmentation is a catch-all category for the fragmentation in natural systems that can result from human systems; this includes fragmentation between land and water, surface and groundwater, water quantity and quality, upstream and downstream, or marine and freshwater systems (Kidd and Shaw, 2007). These categories are not absolute, nor are they exhaustive. Additional categories of fragmentation certainly may exist (such as data, financial, or cultural). However, they are beyond the scope of the dissertation, given my socio-legal focus.  2.3  The integration-fragmentation challenge  The latter part of the 20th century revealed the complexity of water management (Lach et al., 2005; Freeman, 2000). Various scholars in the last decade (Wallis and Ison, 2011; Morrison, 2006; Head, 2008) have described water problems as “wicked” in that they are “ill-defined; and they rely upon elusive political judgment for resolution” (Rittel and Webber, 1973, p. 160) and are “characterised by uncertainty, complexity, and multiple perspectives that are multi-causal and are interconnected with other issues” (Wallis and Ison, 2011, p. 1). The wickedness of natural resource problems includes diverging ideas and values, and “is also implicated in structures, processes, and institutional arrangements including power, authority, and procedural rules” (Head, 2008, p. 104). In water management, complex problems have been met with calls for integration, particularly of institutions (Wallis and Ison, 2011; Kidd and Shaw, 2007). The premise is that better institutional arrangements will address the complexity of socio-ecological systems (in our “postmodern, fragmented and rapidly changing information society” (Connick and Innes, 2003, p. 178)) and inadequate management, particularly of water resources (Kidd and Shaw, 2007). Around the world, water governance is characterized by 11  R.S.O. 1990, C. D.17.  29  2.3. The integration-fragmentation challenge [F]ragmented administrative structures in which policy and operational responsibilities are divided between a disparate array of organisations, narrow sectoral decision-making systems with competing and contradictor[y] objectives, a disconnection between national, regional and local-level activities and the lack of effective planning and management at the catchment level...(Kidd and Shaw, 2007, p. 313). The fragmentation described here is both intra- and inter-jurisdictional; at spatial and jurisdictional scales. The separation of policy and operational responsibilities and competing objectives are typical characteristics of intrajurisdictional fragmentation. Disconnection between multiple government levels is characteristic of inter-jurisdictional fragmentation. Commentators have emphasized the jurisdictional characteristics of fragmentation in Canada: . . . water governance in Canada is a complicated and fragmented collection of statutes and policies, involving all levels of government. (NRTEE, 2010, p. 20) Canadian water governance is beset by jurisdictional fragmentation, gaps in responsibility, and a lack of coordination.(Morris et al., 2007, p. 26) These statements suggest that jurisdictional fragmentation in Canada is not addressed satisfactorily. But these critiques have stopped short of characterizing or defining jurisdictional fragmentation. The meaning of jurisdictional fragmentation in the Canadian context has been under-explored as have its sources and consequences. Among the putative consequences of the current ‘fragmented’ state of Canadian water governance is that it “. . . undermine[s] the capacity to protect our [Canada’s] freshwater legacy” (Morris et al., 2007, p. 26). According to the National Round Table on the Environment and the Economy (“NRTEE”) (2010), national water governance “is not currently positioned to respond to expected increasing pressure on our water resources” (p. 21). Further, NRTEE (2010) stated water governance in Canada suffers from “jurisdictional complexity, inconsistent approaches across the country, policy fragmentation, a lack of resources, and insufficient technical, scientific, and policy capacity” (p.21). Jurisdictional fragmentation has been identified as problematic, and has produced calls for greater and better integration to improve water management in Canada. 30  2.3. The integration-fragmentation challenge The remainder of this section considers how fragmentation and integration have been defined in the literature, and particularly how integration has been suggested as a solution for fragmentation.  2.3.1  Fragmentation as a problem  Although the term ‘fragmentation’ is often used in the water management literature it is rarely defined. One definition of fragmentation is the “allocation of responsibility for water governance amongst multiple actors and/or agencies with relatively little or no coordination” (Hill et al., 2008). This definition of fragmentation is mostly concerned with jurisdictional overlap and coordination. Another definition of jurisdictional fragmentation suggests that it exists among public agencies and “makes concerted governmental effort on shared problems such as water supply or transportation almost impossible through the traditional institutional forms” (Connick and Innes, 2003, p. 179). Governments are increasingly reaching out to other stakeholders to resolve public policy problems, especially related to environmental issues, and this is making more complex. The academic literature on fragmentation in environmental governance has focused on federations, on the United States and Canada, Australia, and the European Union (Morrison, 2006; Wallis and Ison, 2011; Benson and Jordan, 2010), and global environmental governance (Biermann et al., 2009).12 A key observation global from global environmental governance is that fragmentation can be understood as diversity that is simply part of the governance structure which may, in fact, add value (Biermann et al., 2009). The literature on the US and Canada tends to focus on the changing nature of federalism and its institutional limitations (Blank, 2010; Gerlak, 2006; Skogstad, 1996; Rabe, 1999). The literature on the EU engages with federalism theory, but has developed the concept of multi-level governance to explain the complexity in environmental governance in the EU (Bache and Flinders, 2004b; Hooghe and Marks, 2003; Marks and Hooghe, 2004). Scholars in political studies developed the notion of multi-level governance to describe developments in the EU where “nested governments” at var12  The researchers provide a useful review of the literature that has informed the perspective on fragmentation in international governance studies literature (Biermann et al., 2009, pp. 16-19). For example, the United Nations has been working to address fragmentation since 1998 (United Nations General Assembly, 1998). UN 1998 “In making its recommendations, the Task Force proceeded on a commonly shared conviction that the institutional fragmentation and loss of policy coherence as a result of the number of separate environment-related intergovernmental processes had resulted in a loss of effectiveness in the work of the United Nations in the area of environment and human settlements.”  31  2.3. The integration-fragmentation challenge ious levels engaged in “continuous negotiation” and explicitly contemplated inter- and intra-jurisdictional dimensions (Bache and Flinders, 2004b, p. 3). Concomitant with the shift from government to governance, multi-level governance expanded to include negotiations beyond the state (cf. Bache and Flinders, 2004b; Stein and Turkewitz, 2010; Hooghe and Marks, 2003; Marks and Hooghe, 2004; Bache and Flinders, 2004a). This is not to suggest the role of the state has diminished, but rather that governance increasingly engages more levels of government and more stakeholders and that the role of the state is changing (Jessop, 2004a,b). In a federation like Canada, this affects both the provincial and federal governments, since each has considerable legislative powers. Additional levels of governance may not have jurisdictional authority, but the institutions and actors at those scales can be important sources of fragmentation in environmental and water governance. Scholars working on global environmental governance have described a fragmented global governance architecture as being: marked by a patchwork of international institutions that are different in their character (organizations, regimes, and implicit norms), their constituencies (public and private), their spatial scope (from bilateral to global), and their subject matter (from specific policy fields to universal concerns) (Biermann et al., 2009, p. 16). The architecture of Canadian environmental governance can also be seen as a patchwork of different institution with different constituencies, spatial scopes, and subject matter. Biermann et al. (2009) make three points about fragmentation in global governance that have purchase in discussions of the Canadian case. First, a non-fragmented, or universal, architecture is theoretically impossible because it would require all countries in a policy area to be accept the same regulatory framework, the same decision-making process, and the same commitments (p. 18). Equally, it is unreasonable to expect Canada, a diverse federation, to achieve a ‘universal’ architecture for a policy area as complicated as water. The amount of existing fragmentation might be reduced, but it is unlikely to be fully removed. Second, they attach no value to ‘fragmentation’; it is neutral. This is an important point because it suggests the possibility that fragmentation may have positive and negative consequences. This runs counter to much of the literature on fragmentation in Canada which focuses on the negative aspects of fragmentation. Third, they note that the amount of institutional fragmentation is relative to the political and spatial scales at which it is observed. At larger spatial scales we should expect more fragmentation. This is perhaps an obvious point, 32  2.3. The integration-fragmentation challenge but it is worth reminding the reader that scales of observation are critical in fragmentation studies. For example, rescaling to the watershed scale does not necessarily resolve fragmentation at other scales.  2.3.2  Integration as a solution  Concern with integration of governance is not restricted to the field of water management. Scholars in public administration began to call for greater integration in the 1990s to increase organizational functions that were flagging because of excessive fragmentation. But, they note, fragmentation has been a governance solution since Adam Smith “introduced the division of labour as an instrument to improve the efficiency and productivity of organizations” (Edelenbos and Teisman, 2011, p. 11). Henry Ford’s revolutionary assembly line is the modern archetype of fragmentation improving efficiency through specialization. Indeed, fragmentation is often motivated by “the search for control and reduced transaction costs” (Edelenbos and Teisman, 2011, p. 12). The deconstruction of complicated problems into more manageable pieces can facilitate solutions. Dividing, or fragmenting, tasks and problems can make “unmanageable governmental challenge[s] into manageable and therefore more controllable tasks” (Edelenbos and Teisman, 2011, p. 8). However, a system with too many separate actors and actions can become dysfunctional, in which case, integration becomes attractive as a means to improve efficiency and coordination (Edelenbos and Teisman, 2011, p. 13). Thus, effective governance must balance fragmentation and integration. Water experts noted the problem of fragmentation in water governance at the first international water conference in Mar del Plata in 1977. They reported “existing legislation in many countries is often complex, lags behind modern water management practices and techniques, and perpetuates an undesirable fragmentation of responsibilities between different entities within a government” (Salman and Bradlow, 2006, p. 2). More specifically, the experts at Mar del Plata noted the problem of undesirable fragmentation in several countries was characterized by: provisions that regulate water resources are scattered through different laws and regulations, and in some instances they may even be incompatible with each other or with existing practices and traditional rights. Overlapping jurisdiction of different entities working on water resources management is also common (Salman and Bradlow, 2006, p. 2). The experts at Mar del Plata found legal institutions to be sources of frag33  2.3. The integration-fragmentation challenge mentation because water resource provisions were spread throughout much legislation in many countries. Fragmentation persists (at least in Canada) and is unlikely to ever be fully resolved, in part, because, typically, water is regulated through its uses rather than in the abstract. Indeed, recently, the UNWWAP reported, “[I]n many countries water governance is in a state of confusion: in some countries there is a total lack of water institutions, and others display fragmented institutional structures or conflicting decisionmaking structures” (UNWWAP, 2006, p. 44). Since the early 1990s, IWRM, which was for many a new management approach, but in fact drew on watershed management as it had been practiced since the 1800s, has been a major tool of integration for water management (cf. Blomquist and Schlager, 2005). The emergence of IWRM and its imperative to coordinate economic, social, and ecosystem components can be traced to the sustainability agenda introduced by the publication of Our Common Future by the Brundtland Commission in 1987.13 In the years following the report, water professionals and government policy makers began to take up the concept of sustainable development in the context of water management. A core vision for IWRM emerged from the International Conference on Water and the Environment at Dublin in 1992 and, a few months later, was incorporated into the 1992 United Nations Conference on Environment and Development’s Rio Earth Summit documents. Specifically, Chapter 18 of Agenda 21 — the document that gave guidance on implementing the Rio principles — stated, at Chapter 18.6: [T]he holistic management of freshwater as a finite and vulnerable resource, and the integration of sectoral water plans and programmes within the framework of national economic and social policy, are of paramount importance for action in the 1990s and beyond (UN Department of Economic and Social Affairs, Division for Sustainable Development, 1993). The ‘integration’ imperative of Chapter 18.6 of Agenda 21 has become a key feature of IWRM. Sometimes it is expressed as coordination, but the theme remains the same: integrate the three pillars of sustainability (economic, environmental, social) when managing water. The Global Water Partnership definition of IWRM is an example of the centrality of integration to definitions of water management: 13  Note that a discussion of the concept of sustainable development is beyond the scope of this dissertation. For such discussion see Lélé (1991); Mebratu (1998); Robinson (2004).  34  2.3. The integration-fragmentation challenge a process which promotes the coordinated development and management of water, land and related resources, in order to maximise the resultant economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems (Global Water Partnership, 2008; Global Water Partnership Technical Advisory Committee, 2000). This aspirational definition introduced an ecosystem-based approach to water resources management in that it sought to unify management of land, water, and related resources (Conca, 2005). Fischhendler and Heikkila (2010) state the intent of IWRM is “to bring together fragmented water institutions and users into an integrated planning, allocation, and management framework” usually at the watershed scale (p. 5). However, since institutions are so diverse and the contexts so variable there is no single blueprint for moving toward IWRM (Martinez Austria and van Hofwegen, 2006). And, “integration per se cannot guarantee development of optimal strategies, plans and management schemes” (Global Water Partnership Technical Advisory Committee, 2000, p. 23). In practice, the implementation of IWRM remains unclear. Commentators have argued that ambiguity in the definition of IWRM (such as the GWP definition above) belies the disagreement between policymakers on the development and implementation of water management policies (Biswas, 2004; McGinnis, 1999). Critics have noted the difficulty of IWRM implementation (Blomquist and Schlager, 2005; Watson, 2007), its over-reliance on a regulatory regime, and its developed world policy prescriptions (Lankford and Hepworth, 2010). A number of scholars from different disciplines have pointed out that implementation of IWRM is fraught with challenges around the world (Biswas, 2004; Conca, 2005; García, 2008; Lankford and Hepworth, 2010; Martinez Austria and van Hofwegen, 2006; McDonnell, 2008). But, despite its shortcomings and conceptual fuzziness, the concept of IWRM has tremendous appeal as a process to ensure sustainable water management (Molle, 2008). And its ‘integration’ imperative has certainly gained traction. But, some in the water community have argued that IWRM’s goal of integration, and its putative benefits, have been accepted without sufficient examination (Biswas, 2004). Indeed, the imperative of integration in the water management literature often overlooks the reality of political and legal institutions that divide decision-making authorities: in part, for the pragmatic reasons of efficiency and, in part, to prevent accumulation of power. Improved integration in water management may be desirable, but what is to be integrated will depend on context and there will be a limit to how much 35  2.3. The integration-fragmentation challenge integration can be done. One review of the IWRM literature found a broad range of issues to be integrated under the concept of IWRM and little agreement about how to integrate the issues, who would “do the integration and why, what processes will be used for integration (do such processes currently exist?), or will the integration, if at all it can be done” deliver the expected benefits (Biswas, 2004, p. 251). Some scholars suggest that integration in IWRM is about better coordination and overcoming administrative fragmentation and duplication of effort amongst actors in the water sector (Watson, 2007). But, coordination is only effective if the issues are framed commonly (Dewulf et al., 2011). Determining what to integrate and who to engage in IWRM is complicated. Participation is a key IWRM principle that dates from the Dublin Conference. But, engaging citizens at the local level does not necessarily improve integration (Blomquist and Schlager, 2005). In fact, broader governance processes can create more fragmentation by introducing a multitude of new stakeholders and institutions. Regarding what to integrate, Fischhendler and Heikkila (2010) find “much of the literature agrees that the ‘integrated’ component of IWRM involves physical, sectoral, and organizational integration” (p.5). Within human systems integration objectives include institutions, sectors, territories, and organizations (Fischhendler and Heikkila, 2010; Kidd and Shaw, 2007). In natural systems integration objectives include land and water, surface and groundwater, water quantity and quality, upstream and downstream, and marine and freshwater (Kidd and Shaw, 2007, p. 318). Some scholars have emphasized the moral and power dimensions and social constructions that shape institutional integration (Blackmore et al., 2007; Morrison, 2006). This view holds that “integrative initiatives, therefore, will always be deeply conflicted and contested” (Morrison, 2006, p. 150). The recognition that integration will not be attained, but rather worked toward, opens up space for considering how integration and fragmentation might be balanced effectively to improve governance. For example, in an Israeli case integration was found to have a cost: it hampered the “reforming and implementing [of] new water management policies and strategies, which are increasingly needed to deal with today’s changing water supply and demand conditions” (Fischhendler and Heikkila, 2010, p. 13). It might be that “institutional complexity and dynamism are strengths rather than weaknesses”(Morrison, 2006, p. 15). In an Australian case, centralization of governance responsibilities was found to “increase[] complexity by layering new reporting and funding pathways over existing mechanisms and at the same time oversimplif[y] governance at the regional 36  2.4. Governance patterns and fragmentation level through a ‘one-size-fits-all’ approach”(Wallis and Ison, 2011, p. 12). Because institutional complexity is highly contextual, integration efforts will be specific to the situation (Wallis and Ison, 2011). And, as Morrison (2006) states: “institutional integration is not just about designing rules, law, and governance but also about changing behavior, norms, and values” (p. 150). The recognition that “[E]nvironmental management involves intense negotiation between an ever-increasing array of government and non-government actors at multiple scales” (Morrison, 2007, p. 236) should encourage researchers to query long-standing views on integration and fragmentation. Imperial (1999) advises that “researchers should guard against jumping to the conclusion that the fragmentation and duplication of authority are always bad” (p.461). Further he notes that researchers should “recognize that the integration of policies is not synonymous with the centralization of authority” (Imperial, 1999, p. 461). Integration does not necessarily require centralization, and centralization does not necessarily achieve integration at multiple scales. Indeed, the complexity of water governance precludes a reductionist view of integration. As McDonnell (2008) states: [A]t present the possibilities for truly integrated water resources management are limited, not by a conceptual framework, but by the ability to really represent the full dimensions of variables, interactions and complexity that come into play in any water management project or policy (p.142). Fragmentation is not necessarily the opposite of integration. And, unity and simplification are not always achievable, or necessarily preferable. Some fragmentation may bring diversity, innovation, and functionality to governance.  2.4  Governance patterns and fragmentation  To consider the effects and consequences of jurisdictional fragmentation in the Ontario case, I sorted the historical governance patterns of water management in Ontario by their degree of coordination (or effective integration) and their consequences. Biermann et al. (2009) developed a typology to describe three types of fragmentation in global environmental governance: synergistic, cooperative, and conflictive (p. 19-20). In that typology, the three types of fragmentation are differentiated based on “characteristics of institutional arrangements, shared norms, and their support by relevant actors ” (Biermann et al., 2009, p. 19). An important contribution of Biermann 37  2.4. Governance patterns and fragmentation et al. (2009)’s typology is the observation that fragmentation exists in more than one form and can at times be functional. On the value of their typology of fragmentation of global environmental governance architectures Biermann et al. (2009) state it is: a conceptual tool for comparative empirical analysis in order to advance understanding of the causes and consequences of fragmentation in global governance architectures [that makes it] possible to analyze in much more detail possible political, legal, and institutional solutions to problems of fragmentation, which may depend on the types and degrees of fragmentation at hand (p. 20). I have adapted Biermann et al.’s (2009) typology to the Ontario case to summarize some of the characteristics and consequences of fragmentation on governance patterns (see Table 2.3). I suggest three types of governance patterns emerge from jurisdictional fragmentation in Ontario. The three types of governance patterns — cooperative, conflictual, and reactive — are differentiated based on characteristics of institutional arrangements (degree of coordination, clarity of roles and responsibilities, and degree of shared goals and norms), consequences and type of jurisdictional fragmentation (inter or intra). Cooperative fragmentation is characterized by governments working together through a coordinating institutions toward a common goal. This typically produces innovation or progress on a key water management issue at one or more spatial scales and jurisdictional levels. Conflictual fragmentation is characterized by limited coordination or some conflict between jurisdictions, typically a disagreement on responsibilities and sometimes conflict on norms or goals. This pattern of governance often results in stalemate where progress is stymied because it necessarily requires coordination of jurisdictional levels. Reactive fragmentation is similar to conflictual fragmentation, but typically occurs within a jurisdiction. Reactive fragmentation does not produce a stalemate, but rather piecemeal responses to the focal point of a water management issue or crisis. Each of the examples is discussed in greater detail in chapter 3 or 4.  38  Table 2.3: Descriptive table of governance patterns associated with jurisdictional fragmentation Cooperative  Conflictual  Reactive  coordinating institution  limited or no coordination or some conflict  limited or no coordination or some conflict  clear (enough) roles and responsibilities  disagreement on roles and responsibility  clear (enough) roles and responsibilities  similar enough norms common goal  may or may not have common norms or common goal  different norms typically no common goal  Consequences  innovative, progressive  stalemates, unresolved  piecemeal, responds to focal point of crisis within a single jurisdiction  Scale  at one or more levels inter- and intra-jurisdictional  usually between levels inter-jurisdictional  more frequently within level intra-jurisdictional  Characteristics  Example  Great Lakes Water Quality Agreement (1972-1994); Sewage Stalemate (1950s), Great Lakes-St.Lawrence Great Lakes Water Quality River Basin Sustainable Agreement (1994-2010) Water Resources Agreement (2005)  Typhoid fever management (1912-1918)  39  2.5. The Canadian context  2.5  The Canadian context  This section presents an extensive review of the jurisdictional fragmentation rooted in the Constitution of Canada, specifically, the division of powers. It then proceeds to examine federalism, a main governance institution of the federation. Section 2.5.2 follows the developments of federalism to show that governance practices and patterns change over time, and indeed, issues. The nature of Canada as a federation contributes to fragmentation in governance of many policy areas. This section describes the main features of the Canadian federation as well as the division of legislative powers related to water. And, it considers the usefulness of the concept of multi-level governance to understanding jurisdictional fragmentation in Canada today. The structure of government of Canada is based on a blended constitution, comprising twenty-five documents and a host of customary practices that render the country a parliamentary-cabinet democracy in the Westminster tradition (Stein and Turkewitz, 2010).14 Each level of government has three branches — the executive, the legislative, and the judicial. Responsible government in Canada is underwritten by a single rule: the confidence convention (Aucoin et al., 2004). This means that the executive must always have the confidence of a majority of the elected members of the legislative branch or legislature (called Parliament at the federal level).15 Though the executive and legislative branches of government are, in part, blended in Parliament, the executive remains responsible to the legislature (Aucoin et al., 2004). The confidence convention applies to both the federal and the provincial governments. Ostensibly, it prevents the accumulation of power in one branch of government, thereby requiring continuous negotiation on issues of public policy. This fragmentation was intended to facilitate the sharing of power. In practice, at both the federal and provincial levels of government, the legislature passes legislation (which is typically proposed by the executive); the executive makes policy and subordinate laws (regulations, orders-incouncil); and the judiciary keeps an eye on both by interpreting the Constitution of Canada and legislation, applying the law, adjudicating matters of rights and liabilities, and reviewing administrative decisions16 taken by the 14  Canada is concurrently a constitutional monarchy: the official head of state is Queen Elizabeth II. 15 For greater clarity, the term executive refers to the executive branch of government, as in the Cabinet, the elected members of the legislative branch that make up the government: “[F]unctionally, Ministers exercise the executive powers assigned to the Crown under the written constitution and by ordinary law” (Aucoin et al., 2004, p. 90). 16 Administrative decisions can also be reviewed by administrative tribunals which are an  40  2.5. The Canadian context executive (Muldoon et al., 2009, p. 37). This structure, within each level of government, creates a certain amount of political fragmentation which serves to divide, or fragment, decision-making and to disperse power. Canada’s structure is rooted in the UK tradition (although the UK is a unitary state, not a federation). In the United States, the system of ‘checks and balances’ serves a similar purpose. A major goal of federations is “to divide power and to promote diversity” (Bakvis and Brown, 2010, p. 484). The central government makes decisions that relate to the country as a whole while regional governments have a certain amount of “self-rule” to manage matters of a more local nature to express regional identity within the federation (Bakvis and Skogstad, 2002, p. 3). The Constitution Act, 1867 17 assigns legislative powers to the federal Parliament18 and the provincial Legislatures.19 Despite a few powers to the contrary, the prevailing spirit of Canadian federalism is the principle of subsidiarity where the level of government closest to the issue, and the people affected by it, is considered best positioned to govern it (Hogg, 1997, p. 112). For the most part, the federal level governs matters of national interest while the provincial level focuses more on regional matters. Some matters simply transgress these divided powers, landing squarely in neither or both jurisdictions and setting up jurisdictional fragmentation. In Canada, environment and health are familiar examples of these transgressing policy issues between the provincial and federal governments. The principle of subsidiarity is also in play between provincial and municipal governments. Municipalities are often described as creatures of provincial statute because provinces are given authority over them in s.92(8) of The Constitution Act, 1867. This control includes setting geographical boundaries, assigning responsibilities, as well as creation and re-creation (or termination) of local government (Siegel, 1997). Siegel (1997) suggests provinces do not use their important extension of the executive and legislative branches of the government. Tribunals are common in the field of environment where the statutory schemes are often complex and dispute resolution often benefits from expertise in the field (Muldoon et al., 2009). Tribunal decisions may be appealed to the courts and, sometimes, the Cabinet. Like the courts, tribunals are empowered to review decisions made in the first instance within fragmented statutory schemes in a rather more integrated manner. 17 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App.II, No.5. 18 The federal Parliament has power to legislate for the territories pursuant to the Constitution Act, 1871, s.4. However the federal Parliament has granted extensive powers of self-government to the three territories, within the limits of the list of subjects allocated to the provincial Legislatures (Hogg, 1997, p. 312). A further discussion of jurisdictional authority of the three territories is beyond the scope of this dissertation. 19 Hogg is the principal authority on the legal interpretation of these provisions  41  2.5. The Canadian context powers in an unrestrained matter, but Cameron and Simeon (2002) argue: provinces tend to control the structure and powers of local governments tightly, robbing the very governments that are closest to the citizen and the most involved with the quality of their daily lives of much of their potential dynamism and vitality (p.70). This latter view has important implications for implementing the subsidiarity principle. If local governments are tightly controlled by the province, then their ability to adapt and respond to local circumstances may be reduced. As the level of government closest to the people, municipalities serve two main functions. They are an accessible level of government for citizens and they delivery a variety of services (including water services). These two functions can exist in tension (Siegel, 1997). Determinations of service needs are best done at the local level where the particular character of a community is better understood and citizens can access municipal council meetings to voice their opinions. Economies of scale in service delivery exist in tension with access because the greater the size of the service delivery unit the lesser the ability for citizens to access the government (Siegel, 1997). The division of powers in the Constitution is not exhaustive. Some matters not enumerated in the Constitution, such as environment (Vanderzwaag and Duncan, 1992, p. 4), assumed increasing importance in the latter third of the 20th century leaving the judiciary to determine which level of government has authority. On the environment, LaForest, J., stated [I]t must be recognized that the environment is not an independent matter of legislation under The Constitution Act, 1867 and that it is a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty.20 Matters of environment (including water), in other words, the management of natural resources, are jurisdictionally fragmented: the provincial and federal governments share decision-making authority or sometimes neither has jurisdiction, an uncertainty that can create gaps. Where jurisdictions intersect and overlap, levels of governments use legal or administrative-executive institutions to address a management issue, and occasionally, they engage 20 Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 64.  42  2.5. The Canadian context the courts to adjudicate jurisdiction.21 Thus, jurisdictional fragmentation is a fundamental component of Canadian environmental governance. The principle of subsidiarity is not always useful in the context of environmental problems since many of them transgress scales. Often “[I]t is difficult to develop consistent policies across jurisdictions and to determine the mostappropriate level of governance to address a given environmental problem” (Rudd et al., 2011, p. 482). In the absence of a specific head of power for environment or for water, the federal and provincial governments share responsibility through related management issues. For example, the federal government is responsible for fisheries and the provincial governments for natural resources, including water.  2.5.1  Constitutional water-related authorities  In practice, the provinces have assumed primary authority for water management under the Constitution of Canada (see Appendix C for the text of the main sections referred to in this discussion.) Provincial authority for water is derived from section 109 of The Constitution Act, 1867 which grants provinces jurisdiction over land and, by extension, proprietary rights in water (Kennett, 1991; Gibson, 1969).22 In addition to section 109, a number of provisions in section 92 of The Constitution Act, 1867 supplement provincial legislative jurisdiction over freshwaters. These include authority over the management and sale of the public lands belonging to the province (s.92(5)); over property and civil rights in the province (s.92(13)); over generally all matters of a merely local or private nature in the province (s.92(16)); and over local works and undertakings (s.92(10)). Also, provinces have jurisdiction over municipalities (s.92(8)), which provide local water and wastewater services. Concurrent with the federal government, provinces share power over agriculture (s.95), a major water user. Finally, the “resources amendment” (s.92A) gives provinces the exclusive right to legislate regarding the “development, conservation and 21 The Supreme Court of Canada has held that the federal government has sufficient constitutional powers to regulate certain matters of the environment as matters of national concern or as criminal matters (cf. Crown Zellerbach and Hydro-Quebec). However in practice, the tight imbrications of water with natural resources — a clear provincial responsibility — makes federal action highly unlikely in the current political climate. This means exercise of jurisdiction is more about political powers than about legal interpretation(Vanderzwaag and Duncan, 1992, p. 8). 22 Section 109 did not always apply to equally to all provinces. It came into effect in the Prairie Provinces in 1938. As a result the history of resource ownership on the Prairies is somewhat different.  43  2.5. The Canadian context management of sites and facilities in the province for the generation and production of electrical energy” (Kennett, 1991; Saunders, 1988). In sum, the provincial powers related to water are broad, making them responsible for intra-provincial water management, and for creating effective governance institutions to facilitate that management. Constraints on provincial authority include specific federal heads of power (found primarily in s.91 of The Constitution Act, 1867 ), Indian land trusts, Aboriginal and treaty rights to water, public rights such as the right to fish in tidal waters, and extra provincial rights (Kennett, 1991, p. 25). The federal government’s trade and commerce power (s.91(1)) gives it authority for transboundary waters, but compared to the provincial government, the federal government’s domestic water jurisdiction is more limited and more specific.23 Many federal water-related authorities intersect with provincial authorities. For example, public works and property in provinces such as national parks; Indian reserves (wholly located within provinces); and interests in canals and public harbours. Over the years, the power over navigation and shipping (s.91(10)) has been invoked and navigable waters have been broadly interpreted to permit the federal government to regulate aspects of some provincial projects such as dams and flood control projects (Kennett, 1991). The seacoast and inland fisheries power (s.91(12)) has given the federal government some scope to address water quality, especially through the federal Fisheries Act.24 Additional federal water-related legislative authority includes Indian lands administration (s.91(24)); the concurrent agriculture jurisdiction (s.95); and the ‘remainder basket clause’ (s.91(29)) in which all classes of subjects which are expressly excepted in the constitutional enumeration, and are not assigned to the provinces, are assigned to the federal government, together with federal works and undertakings (s.92(10)). Twice in the first half of the twentieth century, the federal government sought to clarify its water management role. First, it put the Water Powers Reference of 1928 to the Supreme Court of Canada, but received little guidance from the Court (Saunders and Wenig, 2007). Second, at the 1945 Dominion-Provincial Conference on Reconstruction, “the federal government took on leadership responsibilities for national water research but also asserted an interest in assuring the rational development of interprovincial water basins” (Saunders and Wenig, 2007, p. 125). The federal government was particularly engaged in water research from the 1960s to the 1980s and 23 The federal crown owns comparatively little land south of the 60th parallel. That is, most federal lands are in the territories, not in the provinces. Provincial crowns hold most of the land within their jurisdictional territory, thereby circumscribing federal authority. 24 R.S.C. 1985, c. F-14.  44  2.5. The Canadian context it has been engaged in interprovincial water basins, but its commitment to both has varied over the years. Two ‘general’ federal powers have been much discussed in the last three decades, but rarely employed because they tread precariously upon provincial powers (Morton, 1996). The first is the spending power, which is comprised of three specific powers — section 91(3), the power to tax; section 91(A), the power over public property; and section 106, the power to appropriate federal funds.The federal government has used the spending power to compel provinces to meet federal standards where the federal government lacks the direct constitutional authority to legislate (Richer, 2007). The second is the “peace, order, and good government” (“POGG”) provision in the preamble of The Constitution Act, 1867. Similarly, the federal government may use the the POGG power to legislate in matters that are not specifically set out in the Constitution. The POGG power has two branches: national concern and emergency matters. The Supreme Court of Canada expanded the view of the national concern branch of the POGG power in its 1988 decision, R. v. Crown Zellerbach Canada Ltd.25 At issue in this case was whether the federal government had jurisdiction to legislate dumping of waste in provincial marine waters. The Court found that s.91(12) of The Constitution Act, 1867 was insufficient to give constitutional validity to the section at issue in the federal Ocean Dumping Control Act,26 but the POGG power was sufficient. The Court held that the extra-provincial nature of marine pollution, and its international implications, meant that it was a matter of national concern to the whole of Canada. The federal government has been reluctant to use the Crown Zellerbach decision to legislate gaps in environmental protection. Kennett (1991) suggests this reluctance is because the decision is both too broad and too narrow, making it difficult to apply (pp. 199–204). Less than a decade later, in R. v. Hydro-Québec,27 the Supreme Court of Canada added to the federal government’s ability to legislate environmental protection. The Court found the federal criminal law power (s.91(27)) extended to constitutional authority to regulate local pollution in order to protect public health (cf. Boyd, 2003, p. 222). The Court held that “[T]he protection of the environment, through prohibitions against toxic substances, seems to me to constitute a wholly legitimate public objective in the exercise of the criminal law power” (para 132, per La Forest). The federal government 25  [1988], 1 S.C.R. 401. S.C. 1974-75-76, c. 55 (now presumed by the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33). 27 [1997] 3 S.C.R. 213. 26  45  2.5. The Canadian context may rely on “its criminal law power to create complicated environmental regulatory schemes” so long as they retain the character of criminal law in which prohibition is coupled with penalty (Wood et al., 2010, p. 21). Thus, the Supreme Court of Canada has twice expanded the federal government’s ability to regulate the national natural environment, first, under the POGG power, and then under the criminal law power. But, the federal government has steadfastly pursued a policy of “federal deference” to provincial legislative authorities that relies on cooperation and harmonization (Wood et al., 2010, p. 22). Interviews conducted for this dissertation in 2010 confirm that the federal government prefers to stay well within its constitutionally-defined legislative powers on the water file. In particular, the concern is that federal legislation in “murky areas” of authority would compel reaction from the provinces and likely result in protracted legal proceedings on the limits of constitutional authority [Interview 32].  2.5.2  Federalism  The division of powers set out in the Constitution of Canada and their subsequent interpretation by the judiciary has constructed Canada as an increasingly decentralized federated state (Weibust, 2009). Mediating legal institutions of decentralization is the political institution of federalism — intergovernmental relations between the federal and provincial governments — which has shifted along a continuum of regional and central strength28 (Hogg, 1997, p. 102). After World War II, the balance of power began to shift toward the provinces (Hogg, 1997, p. 103). As well, increased government activities in the post-war period led to greater government interdependencies (Meekison et al., 2004, p. 6). Ottawa led on coordinating federal-provincial relations in the 1950s, a period that is known as cooperative federalism (Meekison et al., 2004, p. 4). This gave way to a more competitive dynamic by the 1970s that was fomented by two phenomena: nationalism in Québec and regionalism in the West (Cameron and Simeon, 2002, p. 51). This more competitive dynamic was accompanied by a shift to “executive federalism” in which a small group 28  The conventional language in discussion of federations is to speak of two levels of government, one higher than the other (Hogg, 1997). This is because of the convention that “in every federation, in the event of inconsistency between a federal law and a provincial or state law, it is the federal or national law which prevails” (Hogg, 1997, p. 102). However, caution is necessary because it must not be implied “that the regional authorities are legally subordinate to the centre; on the contrary, they are coordinate or equal in status with the centre” (Hogg, 1997, p. 102). See also Young and Leuprecht (2006, p. 4-5).  46  2.5. The Canadian context of ministers of “functionally specific policy areas” meet to conduct intergovernmental policy-making became increasingly common (Stein and Turkewitz, 2010, p. 185-6). In the 1980s, federal-provincial conflict peaked over the repatriation of the Constitution and national energy policy ultimately resulting in what may be remembered as a “painful public debate” on the vision of Canada (Cameron and Simeon, 2002, p. 51). The failures of the Meech Lake (1987) and Charlottetown (1992) Accords that sought to bring Québec into the Constitution showed the limits of constitutional change and helped to reshape the federalism dynamic toward “collaborative federalism” (Cameron and Simeon, 2002, p. 52). The current “collaborative” dynamic of federalism and the political climate of Canada have chilled direct engagement by the federal government in environmental management (Harrison, 1996; Paehlke and Torgerson, 2005; Parson, 2001; Weibust, 2009). As noted earlier, the federal government prefers to collaborate rather than strictly exercise its legal authorities. For many Canadian provinces, resource development — which environmental governance often affects — remains a major source of income and an issue through which to continuously reassert provincial autonomy. At the same time, there are few incentives for the federal government to compete with the provinces in environmental matters. Indeed, much of the time, for the federal government, the costs of taking action on environment have been too concentrated while the benefits have been too diffuse (Harrison, 1996). Only when environment is a major issue in the polls does the federal government have a concentrated benefit — in the form of votes — to engage directly in environmental governance (Harrison, 1996). These factors have resulted in the federal government often avoiding exercise of environmental authority it clearly possesses (Parson, 2001; Vanderzwaag and Duncan, 1992). According to Cameron and Simeon (2002) federalism is now a collaborative “process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the 11 governments and the territories acting collectively” (p. 54). In the last decade, the premiers created a new intergovernmental coordinating institution, the Council of the Federation (the “Council”). The ten provinces and three territories are members, but the federal government is not included. Formalized in December 2003, the Council is meant to meet the challenge of “a new era in collaborative intergovernmental relations” (Council of the Federation, 2011a). The intent is for the Council to “play a leadership role in revitalizing the Canadian federation and building a more constructive and cooperative federal system” (Council of the Feder47  2.5. The Canadian context ation, 2011a). The development of the Council evidences further evolution of the federalism dynamic in Canada, and the embracing of collaborative federalism by the premiers. With respect to water policy, the Council of the Federation has a specific interest in water governance that has been under development in 2010 and 2011 (Council of the Federation, 2011b). Meanwhile a more traditional institution of executive federalism, the Canadian Council of Ministers of the Environment (“CCME”), continues work on its water agenda. The CCME is comprised of the environment ministers of all the provinces and territories, as well as the federal government. The CCME has developed a number of guiding documents for water governance including the Review and Assessment of Canadian Groundwater Resources, Management, Current Research Mechanisms and Priorities (2010); Water Valuation Guidance Document (2010); and the CCME Setting Strategic Directions for Water (2009). More broadly, the CCME works to coordinate federal, provincial, and territorial environmental policy. One of the CCME’s main efforts to coordinate environmental policy is the 1998 Canada-Wide Accord on Environmental Harmonization (the “Accord”). The Accord between the federal government and the provinces (except Quebec) and territories attempts to allocate issues to jurisdictions, and to establish processes for federal, provincial and territorial jurisdictions to work together (in particular, environmental standards, environmental assessment and enforcement) (Harrison, 2002; House of Commons Standing Committee on Environment & Sustainable Development, 2007). Some commentators have disagreed with the Accord’s approach to harmonization suggesting that it “will obligate the federal government to refuse to exercise some of its jurisdiction in environmental matters, and thus lead to a diminution in environmental protection for Canadians.” 29 The Accord envisages “[G]overnments working in partnership to achieve the highest level of environmental quality for all Canadians” (Canadian Council of Ministers of the Environment, 2009). Its objectives are to “enhance environmental protection; promote sustainable development; and achieve greater effectiveness, efficiency, accountability, predictability and clarity of environmental management for issues of Canada-wide interest” (Canadian Council of Ministers of the Environment, 2009). These aspirational objectives suggest a commitment to harmonize to standards that will improve environmental quality. But, the Accord requires consensus in order to set standards. Although there are advantages to this approach, one of the main disadvantages is that most CCME guidelines often 29  Canadian Environmental Law Association v. Canada (Minister of the Environment), [1999] F.C.J. No. 588.  48  2.5. The Canadian context merely reiterate the status quo and are rarely innovative. In the absence of consensus, each government is free to act within its existing authority (Canadian Council of Ministers of the Environment, 2009). Even when standards are agreed to, governments are not obligated to adopt the standards within a particular time frame. To date, the Accord has produced a number of guidelines rather than a comprehensive framework of harmonized strong standards for environmental quality. Moreover, Aboriginal governments and municipal governments are not involved, and public consultation is limited. The CCME has no authority to compel provinces to implement laws and policies: it is a coordinating institution. But, as Harrison (1996) has argued, the CCME’s political function is dual: not only does it reduce administrative costs through coordination of efforts, it also it serves, as a key institution of collaborative federalism, to “restrain federal autonomy” ( p. 155). Collaborative federalism entrenches executive federalism, in that the executive branches still drive policy development (Meekison et al., 2004, p. 5), but the federal government is no longer leading (cf. Council of the Federation, 2011a). But, executive federalism has governance limitations. Governments are unable to bind future legislatures so executive intergovernmental arrangements — be they intergovernmental accords, declarations, or framework agreements — are not legally binding or enforceable. This results in “a deep tension between the logic of collaborative intergovernmentalism and the logic of responsible parliamentary government” (Cameron and Simeon, 2002, p. 63). As discussed above, the confidence convention is the fundamental tenet of responsible government under which the legislature retains control over government. Executive federalism produces policy quickly, but can fail to meet governance expectations of democracy: legitimacy, accountability, and transparency (Cameron and Simeon, 2002; Stein and Turkewitz, 2010). The current practice of intergovernmental relations where agreements are made between executive branches (executive federalism) removes control from the legislative branch of the government. Despite the deficiencies associated with executive federalism, it remains an important tool to managing intergovernmental relations in Canada (Stein and Turkewitz, 2010). La Forest, J., in R. v. Hydro-Québec explained that the Court was increasingly being asked “to consider the interplay between federal and provincial legislative powers as they relate to environmental protection” (para 85). Elaborating on the nature of the Court’s challenge, La Forest, J., stated: [T]he all-important duty of Parliament and the provincial legislatures to make full use of the legislative powers respectively assigned to them in protecting the environment has inevitably 49  2.5. The Canadian context placed upon the courts the burden of progressively defining the extent to which these powers may be used to that end. In performing this task, it is incumbent on the courts to secure the basic balance between the two levels of government envisioned by the Constitution. However, in doing so, they must be mindful that the Constitution must be interpreted in a manner that is fully responsive to emerging realities and to the nature of the subject matter sought to be regulated. Given the pervasive and diffuse nature of the environment, this reality poses particular difficulties in this context (para 86). Provincial-federal sharing of legislative authority in the area of environmental protection is complex and evolving. It is mediated by judicial interpretation of constitutional powers as well as intergovernmental relations, especially federalism. A key point here is that federalism is evolving toward multilevel governance to include a greater role for municipalities — particularly the large urban centres that drive Canada’s economy (Young and Leuprecht, 2006; Bakvis and Brown, 2010) — and Aboriginal governments. Municipalities are delegated their authority by provincial legislatures. Aboriginal governments are in transition to take on the authorities of, sections 91 and 92 of the Constitution, to share legislative authorities with the federal and provincial governments, as appropriate to the circumstances. When the British asserted sovereignty over Canada, the pre-existing laws and interests of Aboriginal societies were absorbed into the common law, as rights and title to the land vested in the Crown.30 Concomitantly, a fiduciary duty — an obligation of the Crown’s to treat aboriginal peoples fairly and honourably and to protect them from exploitation — arose.31 The Constitution Act, 1867, section 91(24) gives the federal government legislative authority for “Indians and Land reserved for the Indians.” 32 . Provincial Crowns hold most land in provinces and hold many of the legislative authorities relevant to natural resources management, including land-use planning. Those provincial laws will apply to Indian lands, unless provincial legislation treads upon federal jurisdiction or goes to a matter central to Indians (“Indianness”)(Hogg, 1997, p. 566). This framework continues to evolve as 30  Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911 at para 10. Note that there are multiple dates of assertion of sovereignty in Canada as British settlement moved west across the continent. 31 Ibid., para 9. 32 The term “Indian” was later defined in the Indian Act R.S.C., 1985, c.I-5. at s. 2(1) as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.”  50  2.5. The Canadian context Aboriginal self-government is established. In 1982, Canada repatriated its constitution. The Constitution Act, 1982 33 included a provision that changed the relationship of Aboriginal peoples34 with the governments of Canada. Specifically, section 35 recognized and affirmed Aboriginal and treaty rights of the Aboriginal Peoples of Canada. By giving constitutional protection to Aboriginal and treaty rights, section 35 “operates as a limitation on the powers of the federal Parliament, as well as the provincial Legislatures” (Hogg, 1997, p. 564). It means that governments cannot use legislation to affect Aboriginal or treaty rights; they can only be extinguished by surrender or constitutional amendment (and by way of s.35.1 of The Constitution Act, 1982, Aboriginal peoples would be involved in such discussions to constitutionally amend their rights)(Hogg, 1997). Section 35 recognized Aboriginal governments as a level of government and a new role for Aboriginal peoples and their governments (including relating to natural resource governance) began to be carved out. Aboriginal peoples’ engagement in water governance is through Aboriginal, treaty, and reserve rights to water and Aboriginal and treaty rights to self-government. The first means that Aboriginal rights to water resources will need to be considered when making allocation decisions: Aboriginal rights may be exercised in priority to other rights to the same resources (in effect a prior allocation). Any limitations on the exercise of an Aboriginal right35 must be justified.36 Rights to self-government ensure Aboriginals have an expanded role in natural resource governance. The Canadian government has recognized the inherent right to self-government as giving Aboriginal peoples “the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources” (Aboriginal Affairs and Northern Development Canada, 2010, p. 2). The right is thus limited and “operates within the framework of the Canadian Constitution” (Aboriginal Affairs and Northern Development Canada, 2010, p. 2). But, issues of jurisdictional fragmentation will persist. 33  being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. In section 35 of The Constitution Act, 1982, “Aboriginal Peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.” 35 The onus to show infringement is on the party claiming the right. 36 R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Gladstone, [1996] 2 S.C.R. 723. 34  51  2.6. Conclusions  2.6  Conclusions  This chapter frames jurisdictional fragmentation as an emergent property of the interaction of political and legal institutions that hold or assign authority in a territory. This framing seeks to contribute to the conceptualization of jurisdictional fragmentation in the Canadian context. Based on this framing, this chapter defined jurisdictional fragmentation and analyzed its multi-level and multi-scalar dimensions. The analysis then explored in detail two key nodes of fragmentation — legal institutions and administrative-executive institutions. Moreover, the chapter explored the relevance of the challenge of balancing integration and fragmentation in the water governance and management literature. It found that integrated water resources management has called for more and better integration as a solution to complex water management problems. The chapter then presented a summary table of the characteristics and implications of jurisdictional fragmentation for governance to describe and explain three types of governance patterns that emerge in response to jurisdictional fragmentation. The chapter then examined the foundation of jurisdictional fragmentation in Canada, the division of powers in the Constitution. And, it reviewed the development of federalism in Canadian governance over time to show how it has evolved toward multi-level governance. At the core of the integration-fragmentation challenge is the question of the appropriate degree of centralization of power (and authority in decisionmaking) and the appropriate scale of decision-making. Sometimes centralized decision-making is appropriate; other times it should be distributed. In some issues of resource management and public policy there is more consensus and the determination of the degree of centralization and scale of decision-making is more straightforward. Water is unique in that it is simultaneously a life necessity, an industrial input, and a waste receptacle. There is a finite volume of water distributed unevenly in Canada (and around the world). The quality of water is impacted by myriad land-use activities, many of which are typically governed without direct consideration of their effects on water. In the developed world, the connectedness of human activity and water management described by the binaries of upstream-downstream, quality-quantity, land-water means that most human activities have an impact on water. All these factors complicate the management of water, and mean that the balance between integration and fragmentation in water governance must be actively negotiated.  52  Chapter 3  The evolution of Ontario water governance 3.1  Introduction  This chapter presents an historical review of water governance in Ontario focused on key legal institutions. An historical approach is critical to showing that jurisdictional fragmentation is part of the fabric of the federation in which water governance patterns have emerged. I argue that foundational legal institutions create jurisdictional fragmentation, but the consequences of jurisdictional fragmentation depend on governance practices and patterns that respond to jurisdictional fragmentation in respect of a particular management issue. An historical approach reveals these patterns. I find evidence to support this argument in the long history of evolving Ontario water governance from Confederation in 1867 to the early days of the so-called sustainable development era in 1985. Complicating the inherent inter- and intra-jurisdictional fragmentation in political and legal institutions were a limited understanding of hydrology and ecosystems, as well as, a humanfocused management approach. The chapter describes three formative features of Ontario water governance. First, the common law connects water and land, such that water allocation is based on land ownership. This creates fragmentation and integration in that water management typically trails land-use planning, and water is managed through land-use regulation. Moreover, private land ownership may fragment the management of a commons resource, water, amongst countless private property rights holders. Second, the Constitution of Canada divides water and water-related management between the federal and provincial governments. Third, Ontario’s geographic location on the Great Lakes (large, connected, international freshwater lakes) means that much water governance and management in the province occurs on multiple scales from the international to the local. The history of water governance in Ontario grounds the analysis of juris-  53  3.2. Water law at Confederation in Ontario dictional fragmentation in the remainder of the study. It shows that different governance patterns — cooperative, conflictual, and reactive — emerge in the context of multi-jurisdictional, multi-scalar water issues. During the period covered in this chapter, the connection between water and disease and, eventually, pollution, became clear to scientists and gave impetus to a number of changes in water policy.  3.2  Common law institutions of Ontario water governance at Confederation  British law was adopted in Ontario in 1791 when Upper Canada (the colony that would become Ontario) was founded (Gall, 2004).37 Thus, the laws that were in effect in Great Britain at the time were “received” in Upper Canada and formed the legal foundation for the new colony (La Forest, 1973). The received laws included case law and statutes relating to water allocation and use (La Forest, 1973). This section introduces the two foundational common law institutions of water governance to show the connection of land and water in common-law legal institutions.38  3.2.1  Riparian rights  Before the Industrial Revolution, use of water resources was fairly stable over time, and riparian doctrine was an effective means of local environmental control (Ziff, 1996). But, competition for water resources intensified as the Industrial Revolution demanded more water for new uses, including to generate power (Rose, 1994). From the mid 18th century to the latter part of the 19th century riparian doctrine in England was highly unstable (Getzler, 2004). It took nearly a century and a half for riparian doctrine to settle, in large part because the nature of water fit poorly with the legal standards of possession: “[F]lowing water cannot be possessed in a tangible fashion like land, [but] only quasi-possessed or appropriated by [a] user” (Getzler, 2004, p. 2). As British, American, and Canadian courts struggled to balance the 37  This was done under: An Act to repeal certain Parts of an Act, passed in the fourteenth Year of his Majesty’s Reign, intitled, An Act for making more effectual Provision for the Government of the Province of Quebec, in North America; and to make further Provision for the Government of the said Province 31 George III, chapter 31 Parliament of Great Britain 1791. 38 For more on the history of common law water law in England and Canada see Getzler (2004); La Forest (1973).  54  3.2. Water law at Confederation in Ontario multiple interests of “rivalrous users” in a rapidly industrializing world, riparian doctrine lurched between two approaches: natural flow and reasonable use (Getzler, 2004; Rose, 1994).In this period of unsettled riparian doctrine, the courts sought to balance competing uses, and especially, to support the use of water as an industrial input. At common law, flowing water belongs to everyone and cannot be privately owned (Getzler, 2004; Rueggeberg and Thompson, 1984; Hodgson, 2006). The riparian doctrine granted a basket of water rights to owners of land that abuts a body of water (i.e. river or lake or other bodies of water) (Rueggeberg and Thompson, 1984; Ziff, 1996).39 Thus, certain types of landholding included certain rights in water. Riparian owners held a number of usufructuary rights “which entitled them to receive the flow of water to their property undiminished in quantity and unimpaired in quality, to gain access to navigable rivers, to fish, and to protect their land from flood water” (Percy, 1988, p. 3).40 More particularly, riparians had the right to withdraw water for ordinary domestic purposes, and a limited right to withdraw for extraordinary, non-domestic purposes. The key to this limited right was that the use of the water must “not perceptibly diminish the flow of the stream and thus interfere with the rights of other riparians” (Percy, 1988, p. 3). The basket of riparian rights included the ability to sue if those rights were interfered with (Rueggeberg and Thompson, 1984). Only riparians owning the bed of the watercourse had a right to fish (Percy, 1988, p. 3, fn7). The ability to own the land underneath a water body, and the right to fish, depended on particular characteristics of the water body (Ziff, 1996, p. 95). The boundaries of a parcel of land that borders a non-navigable, non-tidal river extend to the middle of that river.41 In contrast, the boundary of a parcel of land adjacent to a tidal, navigable river stops at the high water mark (Ziff, 1996). As long as there were few user rivalries, and conflicts were mostly between just two users, riparian doctrine was relatively stable (Rose, 1994). However, industrialization and population growth increased competition for water use and associated conflicts. The natural flow theory held that riparian owners were entitled to “use of the natural flow of the stream so long as it was not 39 Riparian rights still exist today, but the basket of rights will vary by jurisdiction. Most jurisdictions are now hybrid, based on common law and statutory institutions (Hodgson, 2006). 40 Usufruct is defined by the Oxford English Dictionary (2011) as “the right of temporary possession, use, or enjoyment of the advantages of property belonging to another, so far as may be had without causing damage or prejudice to this.” 41 This rule is often called by its Latin name: ad medium filum aquae.  55  3.2. Water law at Confederation in Ontario diminished and all water was returned to the watershed of origin” (Tarlock, 1997, p. 186). Over time, the natural flow theory had the effect of limiting industrial expansion so some courts adopted an alternative theory — reasonable use — as a balancing test to permit entry of more ‘efficient’ forms of property (Horwitz, 1977). Reasonable use permitted new uses, it gave upstream users the right to use water for non-domestic purposes, including industrial uses, so long as they did not interfere unreasonably with the rights of other riparians (chiefly, that water remained undiminished quantity and unimpaired quality). The reasonable use theory loosened the restrictions on upper riparian owners by permitting upstream users to affect the nature and timing of the flow for downstream users (La Forest, 1973, p. 208-9). However, downstream riparians were now at risk of appreciable injury from the “reasonable use” of the upper riparian. Courts determined the reasonableness of the use by considering “all of the circumstances, including the size of the stream, the season of the year, the nature of the use and of the operation involved” as well as the state of industrial processes (La Forest, 1973, p. 209). If the use were not reasonable, it was a nuisance and had to be halted, modified, or required payment of damages to the affected riparian. Reasonable uses were determined in the context of human uses of water, not in the context of aquatic ecosystems42 (Benidickson, 2007). By the 1860s, English courts resolved their position on riparian doctrine by settling on “a natural incident theory of riparian rights” (Getzler, 2004, p. 44). This theory achieved a balance amongst competing users by establishing “a discretionary standard of reasonable usage of natural flow” and limiting “the class of legitimate users to riverbank owners” 43 (Getzler, 2004, p. 44). Until then, English riparian doctrine was characterized by “a striking complexity and confusion of common-law entitlements accorded to property owners” (Getzler, 2004, p. 43). American and Canadian courts faced similar challenges to resolve riparian rights (Horwitz, 1977; Percy, 1988; La Forest, 1973; Rose, 1994). 42  This perspective with its omission of ecological considerations persists today (Benidickson, 2007, pp. 28-9). 43 Getzler (2004) notes that in 19th century England “the diversification of industrial and urban water uses” meant that “the enjoyment of water could be divorced from association with neighbouring land” (p. 44). The effect was to multiply the number of legislative users of water and the number of conflicts over water appropriation. Thus, the courts’ new theory was in part a return to the old doctrine where water rights extended only to riparian lands.  56  3.3. Governing water in a new province  3.2.2  The rule of capture  Riparian rights do not extend to owners of land that has subterranean water resources (Rueggeberg and Thompson, 1984). At common law, groundwater is governed by the “rule of capture.” The rule of capture entitles owners to abstract an unlimited volume of water. Compared to riparian rights, groundwater rights at common law are insecure because there is no cause of action against another owner whose abstractions interfere with the water to the detriment of the first owner (Lucas, 1990). Despite their differences, riparian rights and the rule of capture share the key feature that certain water rights are dependent on land ownership. In Ontario, the two common law institutions of water governance were modified by a statutory scheme in the 1960s.  3.3  Governing water in a new province  The Constitution Act, 1867 created the federation of Canada and assigned legislative authorities to the federal and provincial governments (as was discussed in detail in Chapter 2). In its early years, Ontario did not actively manage water, but rather attended to water management through its waterrelated legislative authorities, and in reaction to issues that arose within its territory. The federal government’s engagement with water, from Confederation to the post-World War II period was, for the most part, merely “incidental to other pursuits [rather] than [as] a coherent subject area” (Quinn, 1985, p. 23). In the main, the federal government focused on its constitutional heads of power related to water — fisheries, navigation, boundary waters — and other important federal policy matters including surveys (census and statistics) and settlement of the Western half of the country44 (Quinn, 1985). This section is divided into three subsections, each of which approximately span the years from Confederation to the early post-World War II era. The first section details the early efforts to provision town-dwellers with water. The second section introduces the challenges of Great Lakes water governance and management particularly related to water quality. The third section introduces watershed and water quantity management. 44  A territorially small Manitoba joined the federation in 1870. British Columbia and PEI joined in 1871. In 1905, Alberta and Saskatchewan were whittled out of Rupert’s Land to join Canada as provinces.  57  3.3. Governing water in a new province  3.3.1  Municipal waterworks in southern Ontario  At the midpoint of the 19th century, the growing and increasingly urban population of nearly one million in pre-Confederation Ontario was beginning to need networked water supply services (Jones and McCalla, 1979).45 Many people needing water in urban areas were not riparians and thus “lacked direct access to natural water supplies” (Benidickson, 2007, p. 57). For non-riparians, alternative water supplies included urban wells, “communal pumps, commercial carters and water bearers, and rooftop rain-collection systems feeding cisterns” (Benidickson, 2007, p. 57). By 1840 the need for water supply in the fast-growing City of Toronto (incorporated in 1834) had been apparent for some time, but no waterworks had been constructed (Jones and McCalla, 1979).46 From the 1840s to the 1870s, Toronto’s water services were provided by a private company, Toronto Gas, Light and Water Company (Jones and McCalla, 1979). During that time, the city had considered providing waterworks itself, but financing proved a major constraint (Jones and McCalla, 1979). After Confederation, the province began to legislate municipalities to provide water supplies, thus, gradually, private water provisioners were supplanted by municipalities in Ontario. In 1872, Ontario enacted the Toronto Water Works Act,47 prompting the construction of water works in the City of Toronto. The Act’s preamble stated its impetus to improve “grave and frequent complaints. . . against the quality and supply of water. . . to the city; and grievous and serious injury to property and to the city generally”. The serious injury to property had resulted from insufficient water supplies for firefighting (Benidickson, 2007). In 1882, a legislative committee determined privies were polluting at least three-quarters of Ontario’s water supply causing widespread disease (Benidickson, 2007). With few remedial measures in place, the committee demanded the creation of a provincially appointed board of health (the “Provincial Board of Health” or “PBH”) (Benidickson, 2007). Ontario en45  The Population of Upper Canada (Canada West) was estimated as follows 1806– 70,718; 1811–77,000; 1814–95,000; 1824–150,066; 1838–399,422; 1851-52– 952,004; 1871 –1,620,851 (Statistics Canada, 2000). 46 According to Jones and McCalla (1979, fn3), the population of Toronto (then York) was in 1830 under 3000; in 1834 more than 9000; in 1841–14000; in 1851–31000; in 1861– 45000; in 1871–59000; in 1881–96000; and in 1891–181000. Statistics Canada reports the population of Ontario in 1871 at 1,620,851. Therefore, more than 1/10th of the population of Ontario lived in Toronto in 1871. 47 1872, c. 79. At the same time the province enacted other water works statutes relating to Ottawa, Yorkville, and Brampton.  58  3.3. Governing water in a new province acted the Municipal Waterworks Act 48 to give all municipalities the “power to construct, build, purchase, improve, extend, hold, maintain, manage and conduct water-works” (s. 2). Still, the Act was permissive: municipalities had the power, but were not compelled, to create municipal water utilities (Strategic Alternatives, 2001). The province promoted the development of water works infrastructure without increasing its debt, stipulating that municipalities would raise funds through municipal taxes to finance infrastructure (Strategic Alternatives, 2001). Unsurprisingly, the PBH found itself at pains to convince local councils to invest in sewage infrastructure. So the province mandated municipalities build waterworks, and submit plans for public water supply and sewage systems to the PBH (Bryant, 1975). Now, the PBH would oversee water quality, in particular sources of water pollution — including municipal water supply and sewage works, private septic systems, and the discharge or deposit of material into a watercourse — through public health legislation (Bryant, 1975; Berry, 1959). The PBH worked to coordinate water quality policy for public health safety at the provincial and municipal levels. By 1914, eighty percent of the “more than five hundred waterworks suppliers” in Canada were municipally owned (Benidickson, 2007, p. 68). The municipal commitment to develop water supply systems rested on “the interests of economic advancement, fire protection, civic pride and general concerns with sanitation” (Benidickson, 2007, p. 77). The convenience of piped water systems to residences had profound impacts on water consumption, not least in its use for domestic waste removal. Indeed, the invention of the “water closet” created a new stream of wastewater that would soon present a major governance challenge.  3.3.2  The IJC and managing the Great Lakes  Meanwhile, in Ontario sewage treatment was minimal, consisting “mainly of dilution of the effluent from the outflow pipes. Aerobic bacteria were expected to decompose the organic matter in the sewage as it dispersed into the receiving waters” (Davey, 1985, p. 9). Unfortunately, sewage outfalls were often located in close proximity to drinking water intake pipes (Davey, 1985). Not surprisingly this woefully insufficient treatment impacted public health: from 1903-1913 in Ontario the typhoid fever death rate per 100,000 people was three times the rate in large European cities (Davey, 1985). This was the case for at least two reasons: an over reliance on dilution as the 48  S.O. 1882, c.25  59  3.3. Governing water in a new province solution to pollution, and a failure to treat drinking water. Typhoid fever in the Great Lakes Deaths from typhoid fever were not just a problem in Ontario; they were equally problematic around the Great Lakes. In 1912, Canada and the United States put the first reference to the newly formed International Joint Commission (“IJC” or “the Commission”), created by the Boundary Waters Treaty of 1909. The 1912 reference, entitled Pollution of Boundary Waters, asked the IJC “to investigate the location, extent, and causes of boundary water pollution that was injurious to public health and rendered the affected waters unfit for domestic or other uses” (Benidickson, 2007). In the 1914 interim report (on the 1912 reference), the IJC found that the high prevalence of typhoid fever in the Great Lakes basin was “due in greatest measure to sewage pollution of interstate and international waters used as a source of public water supplies [and that] such water [is] unfiltered or untreated or by faulty operation or poor efficiency of filter plants” (IJC, 1914, p. 349). The IJC recommended daily examination of drinking water for bacteria and installation of proper water and sewage treatment (Davey, 1985). In its final report on the reference in 1918, the IJC concluded that pollution was “very intense along the shores of the Detroit and Niagara Rivers and in the contaminated areas in the Lakes” (IJC, 1918, p. 51). Moreover the pollution was so severe that “conditions exist[ed] which imperil[ed] the health and welfare of the citizens of both countries in direct contravention of the Treaty” (IJC, 1970, p. 1). The IJC found the source of the Great Lakes pollution was “the sewage and storm flows from the riparian cities and towns and the sewage from vessels” (IJC, 1918, p. 51). Shore pollution was so bad in some places that municipalities issued ordinances prohibiting public bathing (IJC, 1918, p. 51). The IJC made three recommendations to “prevent or remedy pollution” of both “boundary waters and waters crossing the boundary” that would not impose “an unreasonable burden upon the offending communities” (IJC, 1918, p. 52). First, city sewage should be addressed by “installation of suitable collecting and treatment works.” Second, vessel sewage should be disinfected before discharge. Third, garbage and sawmill waste discharge should be prohibited and discharge of other industrial wastes “causing appreciable injury” should be restricted as “prescribed” (IJC, 1918, p. 52). The idea of prescribing limits on contaminant release was forward thinking, but who would do the prescribing? Jurisdiction for water quality in the 60  3.3. Governing water in a new province Great Lakes was (and remains) divided across national lines down to the municipalities that were meant to address city sewage. In light of the interjurisdictional fragmentation the Commission recommended it be conferred “ample jurisdiction to regulate and prohibit this pollution” (IJC, 1918, p. 52). In 1920, the Canadian and US governments asked the Commission to prepare a convention that would give the IJC the suggested jurisdiction with a focus on preventing pollution rather than trying to clean it up. The convention was not negotiated to a final agreement. This was, in part, because despite the IJC’s findings, the problem of pollution in the Great Lakes was secondary to larger political economic challenges in the post World War I period; and, in part, because there was a “general belief that there was an inexhaustible supply of clean, fresh water to dilute all wastes, the expenditures of large sums of money on waste treatment facilities did not appear to be urgent” (IJC, 1970, p. 2). Moreover, the IJC plan would have required Canada and the USA to delegate regulatory authority to a transnational institution. The implications of this on state sovereignty no doubt gave pause to politicians. Arguably, the most successful outcome of the IJC 1912 Pollution of Boundary Waters Reference — the increased treatment of municipal water supplies with chlorine that resulted in decreased mortality from typhoid fever — was also its greatest shortcoming. The language in the 1918 final report makes it clear that even though human health, there was no mention of ecosystem health, was the greatest reason to control pollution in the Great Lakes it was not to be protected without limit. The IJC cautioned “[W]hile public health is the paramount consideration, it must be looked upon, however, as only one of a large number of elements in the many-sided and complex question of the public weal” including industrial and economic development (IJC, 1918, p. 32). The 1918 final report emphasized the primacy of “sanitary considerations” while being sensitive to the need to balance, “properly”, a number of “conflicting elements existing in the individual cases” (IJC, 1918, p. 52). The ‘proper balancing’ reflects the classical riparian rights dilemma of balancing water uses. To demand sewage treatment was to risk overburdening an upstream polluter by potentially “retard[ing] its progress both industrially and in respect to population” (IJC, 1918, p. 38). In the postwar era, restricting industrial growth was an unpopular option. In the end, each municipality chlorinated its drinking water and improved public health independently of other communities. With no coordinating mechanism to guarantee that other municipalities would invest in sewage treatment, there was no incentive for any municipality to invest. In this case, inter-jurisdictional fragmentation is associated with reactive gov61  3.3. Governing water in a new province ernance patterns characterized by the piecemeal response of drinking water treatment despite the acknowledged sewage problem. The widespread use of chlorine addressed the crisis at hand — typhoid fever. The dilemma of resolving sewage treatment was left for another day. Industrial pollution in the Lower Great Lakes Chlorination improved drinking water but did nothing to address water quality in the Great Lakes. In 1946, the Canadian and US governments put another reference to the IJC. This time the Commission was to study the pollution of boundary waters, focusing on the rivers connecting the Lakes — the St. Marys River, the St. Clair River, the Detroit River, and the Niagara River — using the 1918 IJC report data as a baseline. In 1950, the IJC found water quality much diminished: Despite the partial treatment afforded the major portion of domestic sewage, the bacterial concentration in these waters is in places three to four times greater, on the average, than it was in 1912. The total discharge of municipal wastes into the boundary waters under reference is about 750 million U.S. gallons (625 million Imperial gallons) daily. About one-fifth of this amount is untreated and practically all of the remainder is only partially treated (IJC, 1950, p. 5). In addition to domestic waste (sewage), the IJC found that industrial waste was now a major source of pollution. Not only were there numerous chemical pollutants, but the biological oxygen demand49 of the industrial waste was greater than “the combined total of the domestic wastes of the area” (IJC, 1950, p. 5). Vessel sewage continued to be a problem and, newly, dredging of channels for navigation was contributing to the diffusion of pollution and increasing the chemical load of the Detroit River in particular (IJC, 1950). The combined pollution caused a “serious health menace” as well as “adverse economic effects” (IJC, 1950, p. 5). Menaces and costs included increased treatment costs for domestic water and in some communities domestic water tasted “objectionable.” And, the pollution forced beach closures and reduced waterfront property values. 49 Biological oxygen demand, now more commonly known as biochemical oxygen demand, is a measure of the oxygen needed by aerobic microorganisms to consume the oxidizable material in a water sample. Oxidizable material (sewage, factory effluents, agricultural run-off), thermal pollution, and biomass (e.g. algal blooms) can all deplete oxygen supply in a water body. The higher the number, the lower the amount of dissolved oxygen available for aquatic life (Bunce, 1994, pp. 131-37).  62  3.3. Governing water in a new province In the 1950 report, the IJC made an environmental finding on the Great Lakes: “[F]ish and wildlife are destroyed by a number of industrial pollutants” (IJC, 1950, p. 5). The immediate concern here was the impact on recreation and the economy, rather than the health of aquatic ecosystems. Nonetheless, the IJC did cast doubt on the limitless assimilative capacity of the Great Lakes finding that [I]n general, the cumulative effect of uncontrolled waste disposal into these boundary waters seriously reduces the capacity of the waters to perform many beneficial and necessary functions vital to the health, recreation and economy of the people of the area (IJC, 1950, p. 5). Dilution might not be the solution to pollution after all: the Great Lakes were not an inexhaustible supply of clean fresh water. As to whether pollution on one side of the boundary adversely affected the other side, the IJC was definitive, “[T]he interchange of waters across the boundary is such that any pollution on either side is a matter of concern to both countries” (IJC, 1950, p. 6). The IJC did not reintroduce the idea from 1918 that it should be given jurisdiction to regulate the Great Lakes; but clearly, the Great Lakes needed to be managed at multiple spatial scales from the international to the local by multiple levels of government. The 1950 report detailed a series of recommendations to address the pollution problem called the “Objectives for Boundary Waters Quality Control” (the “Objectives”) made up of general and specific objectives. The general objectives required that all waste (sanitary sewage, storm water, and industrial effluents) should be treated sufficiently so as to not, upon discharge, adversely effect sources of domestic water supply or industrial water supply, navigation, fish and wildlife, bathing, recreation, agriculture, and other riparian activities (IJC, 1950, p. 6). The specific objectives detailed limits of contamination for particular types of waste (IJC, 1950).The IJC urged the US and Canada to implement the objectives, but because it lacked regulatory authority it could not enforce them. The 1950 report refocused attention on the problem of city sewage that had been largely unaddressed in the three decades since the 1918 report. The Commission recommended all municipalities install primary treatment of sewage “by sedimentation and disinfection of the effluent” and secondary treatment where required by the Objectives (IJC, 1950, p. 9). The Commission invoked “polluter pays” and recommended “the costs of the necessary remedial measures should be borne by the municipalities, industries, vessel 63  3.3. Governing water in a new province owners and others responsible for the pollution” (IJC, 1950, p. 9). But just where would Ontario municipalities find the money? Municipal financial constraints had long been a major reason for limited sewage treatment in Ontario. Amendments to the Municipal Act in 1943 had permitted municipalities to establish user rates for services, but the economic reality of the interwar period meant that water and wastewater infrastructure languished (Strategic Alternatives, 2001). Massive investment would be necessary. The infrastructure deficit in water and wastewater in Ontario in the postwar era was extreme, “especially on the sewage side, following a 15-year disruption accompanied by substantial population increase and industrial growth” (Benidickson, 2002, p. 56). Municipalities would need senior government help to upgrade water and wastewater infrastructure. In the immediate aftermath of the 1950 Report, the IJC was directed to create a permanent Technical Advisory Board (the “Board”) to supervise remedial measures to control boundary waters pollution. The Board’s powers were few, but it encouraged border municipalities to adopt the 1950 report’s “Objectives” (Read, 2000, p. 341). In Canada, the Commission’s directions for improving water quality in the Great Lakes proved difficult to implement, not least because of inter-jurisdictional fragmentation, especially related to which level of government would finance sewage infrastructure upgrades. Each of the three levels of government — municipal, provincial, and federal — had some responsibility for water quality in the Great Lakes basin and all agreed with the IJC’s findings that municipal sewage facilities needed to be installed or upgraded. Despite this agreement, there was insufficient coordination to effect progress. It would take nearly a decade to resolve the issue of financial responsibility for sewage infrastructure in Ontario (Read, 2000, p. 339). Meanwhile, to address industrial pollution, Ontario created a Pollution Control Board (the “PCB”) in 1952. The PCB was intended to coordinate provincial efforts on pollution. To address intra-jurisdictional fragmentation, the PCB had a mandate “[to coordinate] all government pollution management functions. . . ,[to advise] the government on all aspects of domestic and industrial waste control, and [to integrate]” existing efforts “involved in pollution abatement research” (Read, 2000, p. 342). The PCB was an “interdepartmental coordinating body” meant to “pursue legislative reform” much as had been done in the US and the UK (Benidickson, 2002, p. 54-55). Members on the PCB represented a number of Ontario provincial departments: Agriculture, Health, Lands and Forests, Mines, Municipal Affairs, Planning and Development, and the Ontario Research Council (Benidickson, 2002). The PCB marked a concerted effort by Ontario to address intra-jurisdictional 64  3.3. Governing water in a new province fragmentation in water governance, albeit on the narrow matter of pollution.  3.3.3  Watershed management in Ontario: Creating Conservation Authorities  Water quantity concerns in Ontario, particularly for agriculturalists, were as pressing at times as water quality concerns. As early as 1869, the Province of Ontario began subsidizing wetland drainage to promote agricultural development, in effect, managing Ontario’s natural systems to meet the needs of a rapidly increasing human population (Mitchell and Shrubsole, 1992). As in domestic water provision, early efforts to manage water for agriculture through dam and locks projects were directed by both private navigation companies and municipal governments (Mitchell and Shrubsole, 1992). These interventions did little to reduce the impacts of severe inundation events that continued to cause havoc in increasingly populated communities. The Grand River Valley of southwestern Ontario, where the risk of inundation was particularly acute, would become the province’s prototype for watershed management. In 1912, an extensive spring flood spurred the creation of a short-lived flood-prevention agency — the Grand River Improvement Association — that failed in its efforts to stem inundation events (Mitchell and Shrubsole, 1992). Over the next three decades, Ontario worked toward finding a permanent solution to regular flood damage, especially in agricultural areas of southern Ontario. Seeking water management solutions, the Ontario government commissioned engineering research in 1930s on “municipal water supply, sewage disposal, flood control, power development possibilities, and afforestation” (Mitchell and Shrubsole, 1992, p. 40). Concurrently, Ontario experimented with watershed management. Under the Grand River Conservation Commission Act,50 municipalities in the Grand River basin created the Grand River Conservation Commission (the “GRCC”), the province’s first watershed management entity. The GRCC constructed a reservoir to restore minimum flow to the river; prevent flood damages; and restore — “within practical limits” — the Grand River’s “traditional status of wealth, convenience, and comfort to its communities” (Mitchell and Shrubsole, 1992, p. 46, quoting Acres Report of February 15, 1939). The GRCC constructed multipurpose dams to control river flow, the sites for which were evaluated primarily, if not exclusively, on the basis of engineering standards (Mitchell and Shrubsole, 1992). Nevertheless, the “integrated administrative approach” to water management 50  S.O. 1938, c.15.  65  3.4. Water governance in post-war Ontario of the GRCC from 1938 to 1946 made it the “vanguard in water management and development in Canada,” and the first Canadian example of joint provincial-municipal water planning and cost-sharing among levels of government (Mitchell and Shrubsole, 1992, p. 56). The basin-wide management approach of the GRCC addressed some inter-jurisdictional fragmentation, between municipal and provincial governments and among municipalities, by rescaling to the watershed. In the early 1940s, the demands to support the war effort peaked and connected natural resources management to economic development in Ontario (Mitchell and Shrubsole, 1992). The Ontario government developed a natural resources management scheme to “ensure a firm foundation on which to build an economically prosperous Ontario”(Mitchell and Shrubsole, 1992, p. 57). In 1946, the provincial legislature, settled on a natural resource management scheme, in the form of the Conservation Authorities Act 51 (the “CA Act”), which was based on the experiences with the GRCC and the model of the Tennessee Valley Authority.52 Under the CA Act local conservation authorities together with the Ontario Department of Lands and Forests (the precursor to the Ministry of Natural Resources) to manage water resources (mostly as flood control) on a watershed basis (Shrubsole, 1996). The CAs were explicitly responsible for intergovernmental collaboration in the basin-wide management of natural resources. The impacts of and response to Hurricane Hazel in 1954 emphasized the importance of the role of CAs in flood control and watershed management (Mitchell and Shrubsole, 1992; Benidickson, 2007). However, watershed management by CAs had a limited mandate; municipalities remained responsible for human water services provision. The rescaling to the watershed scale was narrowly focused on water resources management and did not address quality. Meanwhile, sewage treatment in southern Ontario remained woefully insufficient. The Ontario government would soon introduce new institutions in an attempt to improve the management of water quality and quantity.  3.4  Water governance in post-war Ontario  By the mid 1950s water contamination and pollution were particularly acute in the Windsor-Sarnia area and in Metropolitan Toronto and little progress 51  R.S.O. 1990, C. C.27. The Tennessee Valley Authority was the leading example of basin-wide management in North America in the early 20th century. 52  66  3.4. Water governance in post-war Ontario had been made toward the 1950 IJC Report’s Objectives.53 At the same time, some inland communities (especially in the Grand River Valley) faced water shortages.54 In terms of sewage infrastructure Ontario was still grossly deficient: in 1955, there were 69 municipalities with sewers but without treatment facilities: 15 cities, 38 towns, and 16 villages and townships. In addition, a number of treatment works needed enlarging, including 18 over-loaded plants scattered throughout the 13 municipalities that were consolidated into Metropolitan Toronto in 1954; other centres still lacked even sewers (Benidickson, 2002, p. 58). To address these challenges, Ontario began to restructure its water governance framework, adding new legal and administrative-executive institutions.  3.4.1  A stalemate in multi-level governance  In southern Ontario, the post-war period had produced substantial industrial and population growth that showed few signs of slowing and a voracious need for sufficiently good quality water (Berry, 1959). The IJC final report in 1950 on Pollution of Boundary Waters had been clear: the pollution problems reported by the Commission in 1918 persisted, and now were coupled with a large problem of industrial wastes (IJC, 1950). Ontario and Canada needed to take decisive and urgent action to reduce pollution in the Great Lakes. Unfortunately, they managed neither, in part due to inter-jurisdictional fragmentation. Inter-jurisdictional fragmentation drove a competitive governance pattern that stymied progress on reduction of pollution in the Great Lakes. There was a clear common goal to reduce pollution, but there was no clarity regarding roles and responsibilities, and no coordinating institution. In 1953, the Mayor of Sarnia (located on the St. Clair River at the southern edge of Lake Huron) had requested funding for municipal sewage infrastructure (Read, 2000). The provincial government withheld funding, based on the belief of provincial health officials that border communities (such as Sarnia) were delaying installation of sewage facilities in an effort to secure provincial funds that they could then “use for more attractive vote-catching projects” (Read, 2000, p. 343). Although municipalities had long struggled to finance 53 54  Ontario, Legislative Assembly, Debates (28 February 1956), at 555 (Mr. Frost). Ontario, Legislative Assembly, Debates (28 February 1956), at 557 (Mr. Frost).  67  3.4. Water governance in post-war Ontario water services infrastructure, Frost’s government was concerned that assistance for Sarnia might set a “dangerous precedent” obliging the province to finance sewage facilities across the province, not merely those discharging into the Great Lakes (Read, 2000). While Sarnia waited for funding, in the summer of 1954, the IJC Canadian chair sent a sharp letter to Ontario regarding its complete inaction sewage infrastructure. Meanwhile, Michigan had successfully obtained community compliance with the Commission’s 1950 “Objectives” (Read, 2000, p. 344). Michigan was incensed by Ontario’s inaction and threatened legal action against Ontario if it continued to stall; Ontario’s pollution was damaging Michigan people and property in violation of the Boundary Waters Treaty of 1909 (Read, 2000). Finally, the federal government waded into the fray in late 1954. By letter Prime Minister St. Laurent asked Premier Frost for an update on Ontario’s pollution abatement policy (Read, 2000). In reply, Premier Frost explained the stalled action on the 1950 “Objectives” on pollution abatement was due to post-war financial stringency and a lack of construction material. At the same time Premier Frost launched the opening salvo in the federal–provincial negotiations on funding, arguing that the federal government should finance pollution prevention of boundary waters because, as Canada’s industrial powerhouse, Ontario necessarily produced more pollution (Davey, 1985, p. 88, quoting letter of December 23, 1954, from Frost to St. Laurent ). In reply, St. Laurent advised that “abatement of pollution in boundary waters cannot usefully be considered within the context of federal/provincial fiscal arrangements” (Davey, 1985, p. 88-9, quoting letter). Thus, despite the “urgent necessity to find a solution to boundary waters pollution” the federal government remained convinced “the prime responsibility for funding the solution rests. . . with the Province of Ontario and the municipalities” (Davey, 1985, p. 88-9, quoting letter). Signalling the negotiations were stalled, Frost was noncommittal in the spring of 1955, telling St. Laurent Ontario “would do what is feasible to bring about an abatement of this problem” (Read, 2000, p. 346). Yet another year would pass before Ontario did much of anything on the sewage problem. In the spring of 1955, an independent committee from the Waterloo region advised Premier Frost that water shortage challenges in southwestern Ontario needed government action (Read, 2000). By May 1955, the Ontario Water Resources Supply Committee (the “OWRS Committee”) was struck and charged to examine the state of the province’s water resources, including supply and pollution issues (Mitchell and Shrubsole, 1992). The OWRS Committee’s mandate included two tasks that contemplated the multi-level governance of water resources in Ontario. But, the OWRS Committee ar68  3.4. Water governance in post-war Ontario ticulated a specific and narrow view of multi-level governance, where the province kept control over water resources, especially those subject to “international boundary water treaties and any other relevant statute” but coordinated municipal and provincial activities.55 Unfortunately, the OWRS Committee did not consider the relationship between the federal and Ontario governments in water management. The OWRS Committee’s report resulted in the Ontario Water Resources Commission Act (the “OWRCA”)(Berry, 1959). Premier Frost did not understate his objectives for the Act. He introduced the bill to the legislature stating: “[I]ts implications are very great. It provides the method by which the problems of water and pollution may be dealt with on an area basis.” 56 Regarding finances, Premier Frost reiterated his government’s firm position that municipalities had responsibility for addressing the problem of “the contamination of our own lakes and streams with all of its undesirable effects upon the people of the areas and affecting great natural assets such as fish and wildlife.” 57 And, Frost acknowledged that the stalemate on pollution reduction was “also causing increasing embarrassment in our relationships with neighbouring provinces and states.” 58 Evidently, the embarrassment had not been enough to spark the province to find a definitive solution to financing sewage infrastructure. The provincial stance on responsibility of municipalities for water distribution and sewage treatment remained unequivocal: “[T]he distribution of water and the elimination of pollution is essentially a municipal problem. Both are very clearly duties and responsibilities of municipal governments.” 59 Here it is worth recalling that the municipal mandate is set exclusively by the provincial government. Short of lobbying the provincial and federal governments for money, there is little municipal politicians could do to finance sewage infrastructure. The debate was squarely between the federal and Ontario governments. Charitably, the province recognized that municipalities, which relied mainly on taxes with minimal user rates to raise funds for water infrastructure, had struggled to provide water services to growing populations. The provincial government conceded that under the existing arrangement, municipalities were incapable of improving water management outcomes. During the second reading of the bill, Premier Frost stated: The financing problem, however, is so formidable that many of 55  Ontario, Ontario, 57 Ontario, 58 Ontario, 59 Ontario, 56  Legislative Legislative Legislative Legislative Legislative  Assembly, Assembly, Assembly, Assembly, Assembly,  Debates Debates Debates Debates Debates  (28 (23 (28 (28 (28  February February February February February  1956), 1956), 1956), 1956), 1956),  at at at at at  556 447 558 558 556  (Mr. (Mr. (Mr. (Mr. (Mr.  Frost). Frost). Frost). Frost). Frost).  69  3.4. Water governance in post-war Ontario them [municipalities] are simply unable to obtain the money, with the result that there are places which feel that, in the matter of sewage and pollution, there is nothing to be gained by them doing anything when others cannot or will not.60 The statement acknowledges the multi-scalar and multi-jurisdictional nature of the sewage problem, and the need for a coordinating institution. The IJC had found every community on either side of the Great Lakes was contributing to the pollution problem. To begin to reduce pollution, governments at all levels needed to implement the 1950 “Objectives”. But, unless a community could be sure its neighbours were also investing in sewage infrastructure, it really had no incentive to do so itself. The OWRCA created a new institution, the Ontario Water Resources Committee (the “OWRC”), to coordinate municipal action in water services provision. Frost explained that the OWRC was necessary as “an auxiliary to municipal government which can provide for the form of partnership required under which municipalities can work.” 61 The OWRC was given the Department of Public Health’s powers regarding municipal sewage plants and the ability to arrange financing for municipalities. Together the Act and the OWRC “permit[ted] more effective control” of water supply and pollution by the province (Berry, 1959, p. 290). But, even with the OWRC coordinating, the sewage stalemate dragged on. By 1958, the OWRC was, reportedly, a “water management agency concerned with all aspects of the ‘water part’ of the natural environment” (Bryant, 1975, p. 164). In fact, the OWRC mandate was distinct from the mandate of conservation authorities, which remained concerned with managing water resources on watershed basis. The creation of the OWRC signalled that Ontario had “adopted a program of pollution abatement and the full protection of all watercourses in the Province” (Berry, 1959, p. 293). Reflecting on the OWRC’s progress on its mandate, the General Manager and Chief Engineer stated: It is not possible to predict with accuracy the length of time needed to deal with all sources of pollution now reaching the streams, but the work is proceeding at a rapid pace, and there has been real cooperation received from municipalities and from industry. . . Cooperation of all concerned, which is the basis of this program, cannot fail to achieve the desired results (Berry, 1959, p. 294). 60 61  Ontario, Legislative Assembly, Debates (28 February 1956), at 558 (Mr. Frost). Ontario, Legislative Assembly, Debates (28 February 1956), at 555 (Mr. Frost).  70  3.4. Water governance in post-war Ontario Berry’s favourable outlook on his agency’s work is not surprising, but it did gloss over the fact that not all municipalities were cooperating with the OWRC. The province’s high regard for the OWRC was not shared by Ontario’s larger municipalities. Some, including Sarnia, found the OWRC and its financing arrangements for sewage infrastructure to be heavy-handed. The OWRC controlled the details of municipal water and sewage projects and “forc[ed] the community to pay for them” (Read, 2000, p. 350).62 Even with the OWRC, the sewage stalemate was not immediately resolved; it was a coordinating institution, but municipalities disagreed with the OWRC’s outline of roles and responsibilities. Throughout the 1950s, the federal and Ontario governments were under considerable political pressure to address boundary waters pollution from municipalities, American states, and the IJC. Although Canadian governments in the Great Lakes basin shared a common goal of improved sewage treatment and reduction of pollution, they did not agree on which level had responsibility to finance it. Moreover, there was no coordinating institution to bridge the differences and direct action on sewage treatment. From interjurisdictional fragmentation, competitive governance patterns emerged and delayed effective action on this serious environmental problem for nearly ten years. Finally, in 1960, the federal government, under Prime Minister Diefenbaker took definitive action on sewage facilities. Amendments to the National Housing Act 63 allowed the Central Mortgage and Housing Corporation (the “CMHC”, now known as the Canada Mortgage and Housing Corporation) to assist municipalities in construction of sewage treatment facilities (Read, 2000; Quinn, 1985).64 Sarnia was among the first cities to participate in the CMHC program (Read, 2000). The federal government offered an additional impetus for municipalities to begin work immediately: up to one quarter of the total loan would be forgiven. Forthwith, municipalities installed sewage facilities and Canada slowly began to address pollution in the Great Lakes. Ontario, continued through the 1960s to fund the OWRC to facilitate the construction of municipal water and sewage works (de Loë, 1991). By 1960, the sewage stalemate had been resolved as “all three levels of 62 And, the OWRC’s financing program ran afoul with the Ontario Municipal Board (the “OMB”), the provincial agency charged with overseeing municipal expenditures. The OMB vigilantly enforced ‘fiscal responsibility’ and opposed OWRC projects where the municipality’s debt would exceed the set threshold of 15% of the municipalities total assessment (Read, 2000, p. 348). 63 R.S.C. 1985, c. N-11. 64 In 1980, the federal government wound up the CMHC program (Quinn, 1985, p. 27).  71  3.4. Water governance in post-war Ontario government had finally accepted their respective responsibility for sewage treatment” (Read, 2000, p. 354). Arguably, the conflictual governance pattern that characterized the sewage stalemate may have been fueled in part by partisan interests (a Liberal Prime Minister and Conservative Premier from the start of the stalemate until 1957), as well as an evolving federalism dynamic. Importantly, resolution of the sewage stalemate was not done chiefly by an inter-jurisdictional coordinating institution: resolution came from two different programs, one led by the federal government, the other by the province, to fund municipalities.  3.4.2  Coordinating multi-level governance in the Great Lakes  The resolution of the sewage stalemate did not stop the continuing deterioration of the Great Lakes water quality. By 1966, 30 million North Americans lived in the Great Lakes basin (IJC, 1970). In 1964, Canada and the US put yet another reference to the IJC. This reference, entitled Pollution of Lake Erie, Lake Ontario, and the International Section of the St. Lawrence River,65 examined pollution in what are known as the Lower Great Lakes, the downstream waterbodies located closest to the St. Lawrence River and ocean. Even though Ontario and the eight states bordering on the Great Lakes (the “Great Lakes States”) were not formally involved in the IJC, this reference required significant resources from them, in addition to the requesting federal governments. The final report on the reference was delivered in 1970. The IJC noted the Great Lakes basin waters were used for “municipal and industrial water supplies, cooling purposes, recreating, navigation, commercial fisheries and wildlife. . . [and] for domestic and industrial waste water disposal” and that had rendered them gravely polluted (IJC, 1970, p. 13). For the third time, the IJC reported deteriorating water quality. The study conducted by the two IJC advisory boards for the reference (the International Lake Erie Water Pollution Board and the International Lake Ontario-St. Lawrence River Water Pollution Board), was, at the time, “the most extensive water pollution study to be undertaken anywhere” and included a series of public hearings, held in a variety of border municipalities (IJC, 1970, pp. 15-17). The public hearings were spurred in part by a growing citizen movement 65 The reference asked about pollution of the waters — Lake Erie, Lake Ontario, and the International Section of the St. Lawrence River — as well as the potential for oil pollution in Lake Erie. “The International section of the St. Lawrence River extends from Lake Ontario to Cornwall, a distance of 112 miles” (IJC, 1970 p. 12).  72  3.4. Water governance in post-war Ontario on environmental issues that had emerged in response to handful of environmental crises around the Great Lakes, including windrows of algae piled up on Lake Ontario beaches, a massive die-off of alewife66 in Lake Michigan, the burning of the Cuyahoga River, the eutrophication of Lake Erie, and the discovery of high levels of mercury in Lake St. Clair and Lake Erie (Botts and Muldoon, 2005). The study found: The introduction and accumulation of untreated or partially treated wastes from tributaries, municipalities and industries has limited the legitimate uses of the Lakes, caused unfavourable biological changes, and destroyed much of the general satisfaction and enjoyment that we refer to as the Lakes’ contribution to the quality of life (IJC, 1970, p. 21). Especially grave was the eutrophication of Lakes Erie and Ontario caused by reduced dissolved oxygen and attributed to “[I]ncreased population, industrialization, intensified agricultural practices and the use of phosphorus-based detergents since the late 1940’s” (IJC, 1970, p. 22). Other concerns included bacterial contamination, virus contamination, accumulation of solids, organic contaminants, oil, radioactivity, calefaction67 , and toxics (IJC, 1970). Against this laundry list of concerns, the Commission recommended “adoption and adherence” to its “General and Specific Objectives as a matter of urgency” (IJC, 1970, p. 81). More particularly, the Commission urged: immediate reduction of the phosphorus68 content in detergents; the prompt implementation of a vigorous programme to provide the necessary municipal and industrial waste treatment facilities and to reduce the phosphorus inputs into the above waters and their tributaries; and making provision for continuous surveillance and monitoring (IJC, 1970, p. 81-2). In the lower Great Lakes, not only did day-to-day management practices need attention in Canada, but emergency response plans to acute pollution events were inadequate (IJC, 1970). On the heels of the 1970 IJC report, the United States and Canadian governments began negotiations for a binational agreement to clean up the Great Lakes. Canada’s newly created 66  A species of fish, Clupea serrata, resembling herring. Thermal pollution by discharge of heated waters to the Lakes. 68 Nitrogen was also a problem, but phosphorus presented the better opportunity for reductions with existing technology, chiefly by removal from detergent, to decrease eutrophication. 67  73  3.4. Water governance in post-war Ontario Department of the Environment commenced negotiations with the US Environmental Protection Agency. Sixty years after putting the first reference to the IJC on water quality in the Great Lakes, Canada and the US signed a bi-national agreement on water quality — the Canada US Great Lakes Water Quality Agreement of 1972 (the “1972”). The 1972 GLWQA was a major innovation to coordinate Great Lakes basin water quality governance (Botts and Muldoon, 2005). The 1972 GLWQA was established as a standing reference under the Boundary Waters Treaty, that in its amended form (the 1987 GLWQA), animates the Treaty’s anti-pollution provision (Botts and Muldoon, 2005). Although the Canadian government is responsible for international negotiations, it cannot implement international agreements that pertain to issues of provincial authority. The federal and provincial governments made an agreement in 1971 — the first Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (the “COA”) — to effect implementation of the 1972 GLWQA. As well, the 1971 COA showed Canada and Ontario were committed “to stemming the tide of environmental degradation within the Basin and to restoring the Ecosystem’s health.” 69 The 1950s sewage stalemate had been embarrassing for Canada and Ontario. The GLWQA offered the potential to coordinate international as well as federal and provincial efforts in Great Lakes basin management. The Agreement between Canada and the United States of America on Great Lakes Quality, 1978 (the “1978 GLWQA”) replaced the 1972 GLWQA. The 1978 GLWQA introduced the ecosystem approach (although undefined in the agreement) to management of the Great Lakes (Botts and Muldoon, 2005, p. 69). In the agreement, the ecosystem approach was meant to integrate management across the previously separated media of the environment — air, water, and land — to produce better environmental protection. Over the next three decades, Canada and Ontario would struggle to implement an ecosystem approach.  3.4.3  Linking land and water governance  Ontario had recognized intra-jurisdictional fragmentation and created the PCB and the OWRC to coordinate provincial actions, but both efforts were focused on specific issues. The ecosystem approach,70 demanded broader 69  Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem, 2002, p. 3. Sometimes understood as “[T]he holistic, interdisciplinary management of the interconnected earth systems, including organisms and humans” (Imperial, 1999, p. 451). 70  74  3.4. Water governance in post-war Ontario integration, and especially, the integration of land-use planning and water management. In Ontario, local governments implemented land-use plans and conservation authorities managed watersheds, both in accordance with provincial legislation. Land-use planning — due, in part, to the ability of land to be owned by individuals, and to generate income from developers and taxes — has largely taken precedence over water management. In the late 1960s, under public pressure to take action on environmental issues and to deal with the negative effects of urbanization, including sprawl and overcrowding, the Ontario government clarified the role of regional governments and created a Ministry of Environment. These institutions did not close the gap between water management and land use planning. In 1972, the Government Reorganization Act restructured water governance in Ontario creating the Ministry of the Environment (“MOE”) and the Ministry of Natural Resources (“MNR”) (Winfield, 1994). The OWRC was dissolved and its powers under the Ontario Water Resources Commission Act (now renamed the Ontario Water Resources Act) were transferred to the new MOE (Bryant, 1975; Shrubsole, 1990). The semi-independent structure of the OWRC that had kept responsibility for environmental control separate from line departments had become a “less viable administrative form” (Bellinger, 1975, p. 5). In the face of growing public concern for environmental issues Ontario’s Cabinet needed more direct control over environmental management. Although Ontario had always had two-tiered municipalities, the 1969 reforms formalized the roles of the upper and lower tiers. According to Feldman (1974) the reforms created “mini–metros” across the province. The result “reallocate[d] services and functions” so that “most local government units would remain governmentally intact. [But] [A]t the lower tier, most often they [local governments] were rendered functionally impotent” (pp. 14-15). The Municipal Act 71 assigned regional governments were “significant responsibilities including assessment, planning, arterial roads, health and welfare” as well, they were typically responsible for water services provision (Feldman, 1974, p. 20). With respect to land-use, the Planning Act 72 obligated regional municipalities to prepare official plans and lower tier municipalities to prepare plans that were consistent with the regional official plan (Shrubsole, 1990). Ostensibly, the point was to integrate planning and service delivery across the upper-tier municipality’s territory, capturing economies of scale. 71 72  S.O. 2001, c. 25. See s.11. R.S.O. 1990, C. P.13.  75  3.4. Water governance in post-war Ontario Two statutes guided the new MOE’s mandate — the Environmental Protection Act 73 and the Ontario Water Resources Act 74 —making it responsible for drinking water quality and some water quantity management. Additionally, MOE had oversight of municipal water services provision managed within the regional government structure.75 In 1961, the OWRA had been amended to include a permit regime in order to limit the volume of industrial and commercial water withdrawals (municipal and agricultural water rights were minimally affected) (Percy, 1988).76 It grandfathered water takings by well, surface, or for diversion or storage, or a combination thereof, as long as the infrastructure was constructed before, and remains unchanged since, March 29, 1961.77 Newcomers would now require permits and be assessed a fee for withdrawal in excess of the statutory limit.78 MNR was established out of two existing provincial departments — Lands and Forests and Mines and Northern Affairs. MNR was responsible for water quantity management through the development of watershed management plans which conservation authorities would implement under its oversight (FitzGibbon and Plummer, 2004). The structure of conservation authorities requires further explication. Conservation authorities are guided by a board of directors that are appointed from the municipal councils that are geographically within the CA basin. In a sense, then, a conservation authority is a regional government 73  R.S.O. 1990, c. E.19. The EPA prohibits discharge of any contaminant to the environment in amounts exceeding limits prescribed by the regulations; prohibits discharge of contaminants into the environment that cause or are likely to cause adverse effects; requires spills of pollutants to be reported and cleaned up promptly; and establishes liability on the party at fault. 74 R.S.O. 1990, C.O.40. The purpose of the Ontario Water Resources Act is to conserve, protect, and sustainably manage Ontario’s surface and ground waters. To do this it enables the passage of regulations regarding Ontario’s water supplies; regulates sewage disposal and “sewage works”; prohibits discharge of materials that may impair water; regulates water-taking by requiring permits for the taking of more than 50,000 litres of water per day from a ground or surface source of water; regulates well construction, operation and abandonment; and regulates the approval, construction and operation of water works. 75 Or perhaps not managing water at all. Lower and upper tier municipalities may have representatives on conservation authority boards. However, since upper tier municipalities are typically responsible for water services provision, lower tier municipalities may not have actually provide water services see Municipal Act, 2001. 76 Ontario Water Resources Commission Amendment Act, 1960-61, S.O. 1960-61, c.71. These amendments did not extinguish riparian rights in Ontario. Therefore,Ontario water allocation is a hybrid of common law and statutory law (Hodgson, 2006; Tarlock, 1997). 77 This remains the case. See Ontario Water Resources Act. 78 Both volumetric limits and fees have changed over the years.  76  3.4. Water governance in post-war Ontario that does watershed management. In their role as CA board members, municipal representatives are meant to keep in check their municipal perspectives, in order to focus on the regional, watershed basin management challenges. A provincial review of conservation authorities in 1979 sought to clarify their role in future programming directions for resource management (Mitchell and Shrubsole, 1992; Shrubsole, 1996). Noting the link between land-use planning and water management, the 1979 report suggested that: given the interrelated nature of Conservation Authorities’ programs and the need for Conservation Authorities to relate to a number of other resource management institutions at all levels of government, a comprehensive planning process is essential (Mitchell and Shrubsole, 1992, p. 74, quoting the Report of the Working Groupon the Mandate and Role of the Conservation Authorities of Ontario 1979). Echoing the findings of an earlier provincial review of CAs, the 1979 review recommended CAs prepare watershed plans (Mitchell and Shrubsole, 1992). Although the reviews acknowledged the relationships between land and water, the provincial government did not make changes that effectively facilitated the integration of land use planning and water management. Only water provision services were integrated into land-use planning through the regional government structures. Mitchell and Shrubsole (1992) argue that the assigning of regional planning authority to upper tier municipalities ensured that conservation authorities would have restricted ability to control land-use planning; land-use planning and watershed management would occur in separate forums. Municipal governments and the Ministry of Municipal Affairs and Housing managed land-use. Conservation authorities and MNR managed watersheds. In between, MOE was engaged in environmental protection and, after 1976, environmental assessments for major public or designated private undertakings.79 Though Ontario had earlier addressed some intra-jurisdictional fragmentation, these efforts did not close the gap between land-use planning and water management. An integrated ecosystem approach (that the province had endorsed in the 1978 GLWQA) required that previously separated media of the environment be managed in an integrated fashion. Land-use planning legislation and water management legislation were not integrated, nor were the ministries doing much to coordinate their approaches. Municipalities and CAs were given no formal process through 79  Pursuant to the Environmental Assessment Act, R.S.O. 1990, C. E.18.  77  3.5. Conclusions which to coordinate their planning efforts. This last point is somewhat curious, given that CA boards are comprised of municipal representatives. That is, some of the same people may have been involved in both processes. Nonetheless, the CA mandate remained limited to natural resource management of the watershed unit; this did not include human drinking water. The processes are only marginally connected in that CAs, through their staff, are empowered to comment on municipal official plans.  3.5  Conclusions  This chapter has provided a historical overview of the evolution of Ontario water governance from Confederation in 1867 until the early days of the sustainable water management period that began approximately in 1985. As such, it grounds the analysis of jurisdictional fragmentation in the remainder of the study. During this period, governance patterns ranging from cooperative to conflictual to reactive emerged in response to water management issues subject to jurisdictional fragmentation. The 1918 IJC report, described in this chapter, found that pollution, especially from sewage, was affecting the water quality of the Great Lakes. The IJC found a link between outbreaks of typhoid fever and untreated drinking water. In response to the reports, governments resolved the crisis by chlorinating drinking water which dramatically reduced typhoid fever deaths, but continued to deposit untreated sewage into the lakes. This response can be characterized as reactive because it dealt with the ‘end of the pipe’ symptoms and not the causes (the sewage), largely because there was no mechanism to ensure that efforts by one government to reduce pollution would be met by another. The 1950 IJC Report found pollution of the Great Lakes had worsened, but action was delayed during the sewage stalemate. Arguably, the conflictual governance pattern that emerged was facilitated, in part, by the absence of an overall water policy in Toronto and Ottawa. Without a roadmap to anticipate developments or to coordinate the multiple spatial scales and jurisdictional levels, especially, the federal and provincial governments, crisis management drove water policy and, in turn, deepened fragmentation with conflictual and reactive governance patterns limiting the integration of management. The nature of the Canadian federation divides responsibility for water between the federal and provincial governments. In turn, provinces delegate water services provision to municipalities. The story of the sewage stalemate explored how jurisdictional fragmentation led to protracted ne78  3.5. Conclusions gotiations for resolution, centred on which level of government would take responsibility to fund infrastructure. Dissolution of the OWRC, and dispersal of its functions to MOE and MNR, divided the main provincial water management mandate into its current structure. The province delegated to conservation authorities a mandate to manage natural resources on a watershed basis, but did not include authority for land-use planning which it remained the purview of regional municipal governments. This intra-jurisdictional fragmentation — the separation of land-use planning from watershed planning — produced reactive governance patterns, characterized by piecemeal, uncoordinated management. This reactive governance pattern can be distinguished from the cooperative pattern set by the 1972 GLWQA. There, a common goal, with a strong coordinating institution served to facilitate progress water quality management. The introduction of new more integrative management approaches in the mid 1980s would highlight the need for comprehensive planning across and within levels of government. In particular, the Pearse Report set a new tone and marked a potential transition in Canadian water policy. Nevertheless, as the next chapter discusses, increased complexity and uncertainty in the sustainable water management era led to increased legal and administrativeexecutive institutions, and in some cases, governance processes that created greater intra-jurisdictional fragmentation.  79  Chapter 4  Jurisdictional fragmentation in contemporary Ontario water governance 4.1  Introduction  The defining event in Ontario water management in the contemporary period was the 2000 Walkerton tragedy; E. coli in the town’s drinking water killed seven people and left thousands sick. While the deadly contamination and its aftermath refocused the province’s attention on water management, that attention largely fell into the reactive governance pattern, which kept Ontario water policy fragmented and without an integrating, overarching policy agenda. This chapter, therefore, has a two-fold purpose. First, it examines how increased water management complexity, along with reactive responses to a crisis, continue to exacerbate the effects of inter- and intrajurisdictional fragmentation. Second, it examines current water policy to understand Ontario’s response to intra-jurisdictional fragmentation today. Chapters 2 and 3 explained and analyzed the historical and legal bases of jurisdictional fragmentation in Ontario water governance. This chapter examines governance patterns over the last twenty-five years in Ontario water governance. In particular, this chapter asks: how did interand intra-jurisdictional fragmentation challenge the implementation of integrative management approaches? What governance patterns emerged in response to jurisdictional fragmentation in the context of integrative management approaches? The changes in water governance took place within a context of broader shifts in prevailing political attitudes toward government, including the new complexities precipitated by the sustainable development concept and the shift from “government to governance.” The examination begins with the 1985 review of federal water policy and continues through to the present, focusing on key events and initiatives, such as the response to Walkerton, the source water protection program, and the governance of  80  4.2. Implementing integrated approaches in water governance water quality and quantity in the Great Lakes. The twenty-five year time span covered in the chapter begins with what might be called the “sustainable water management” period, which was initiated with the Pearse Inquiry into federal water policy. After the federal water policy review, in 1987, Canada developed a new water policy and restructured its departments to focus on water management functions. Similarly, the province restructured to improve integration. But, before long, changed budget priorities led to retrenchment on environmental and water policy, through most of the 1990s, at both the federal and provincial levels. The Walkerton tragedy refocused Ontario’s attention on water. The Walkerton Inquiry made one hundred and twenty-one recommendations that have directed Ontario water policy since 2001. Despite the Inquiry’s strong suggestion that Ontario develop a comprehensive water policy, the province remains without one and the challenges of intra-jurisdictional fragmentation persist.  4.2  Implementing integrated approaches in water governance  This section reviews the efforts to implement integrated approaches to water governance by both the federal and provincial governments. The approaches taken by each level of government to integrate within their jurisdictions are presented separately. The subsequent section examines water quality and water quantity governance in the Great Lakes basin to show the different governance patterns that have emerged in response to multi-level governance of different issues in the Great Lakes basin.  4.2.1  Federal water governance  To support the efforts of the IJC reference on the Lower Great Lakes (made in 1964), the Canadian government created the Inland Waters Directorate and the Freshwater Institute, institutions that greatly expanded the federal government’s expertise in water research (Quinn, 1985; IJC, 1970). As well, it enacted the Canada Water Act 80 that established “a framework for federal-provincial planning and cooperation,” especially regarding water quality (IJC, 1970, p. 65). The Canada Water Act has mostly been used to coordinate interprovincial water management efforts. Its limited use has 80  R.S.C., 1985, c. C-11.  81  4.2. Implementing integrated approaches in water governance restricted its impact on coordinating broader water governance practices in Canada. The federal government formed a Department of Environment (“DOE”) in the early 1970s. The new DOE was comprised of a “complex mix of organizational orphans”, chiefly, the “water sectors” of the several other departments (Quinn, 1985, p. 30) (Doern and Conway, 1994, p. 16). Originally, the DOE was envisaged as “ecosystem manager” or “renewable resource manager” but, in the end, the DOE was rather more narrowly concerned with end of pipe pollution (Doern and Conway, 1994, p. 20). In January 1984, the federal Minister of the Environment commissioned an Inquiry on Federal Water Policy,81 widely known as the “Pearse Inquiry” after its chair, Dr. Peter Pearse (Pearse et al., 1985). The Pearse Inquiry, struck in response to a growing public environmental consciousness and concern for water, was charged with advancing visionary policies for water management (Pearse et al., 1985). Through extensive consultation and research, the Pearse Inquiry assessed the ability of federal institutions to adapt to changing environmental conditions, considered emerging issues in water management, as well as the state of water resources and the inter-jurisdictional dimensions of water resources management (Pearse et al., 1985). The Pearse Inquiry reported that the complexity of water policy in Canada in 1985 surpassed any previous understanding: We found it [water policy] inextricably involved with environmental concerns, the economy, political relations, and social and heritage values. It also became clear that anxiety about our environment in general and about water in particular had become widespread (Pearse et al., 1985, p. 7). The finding that water policy was “inextricably involved” with multiple other factors may seem trite now. But, at the time, it was illuminating for many. It served to focus attention on the importance of balancing values, interests, and uses in water management. The Pearse Inquiry was at the vanguard of a new understanding of water management that would gradually supplant the traditional paradigm of “exploitation and use” that had dominated Canadian water management (Mitchell and Shrubsole, 1994, p. 338-9). The Pearse Inquiry’s report set the foundation for the 1987 Federal Water Policy (the “1987 Policy”) and its two goals — to protect and enhance the quality of the water resource; and, to promote the wise and efficient 81  The Inquiry was commissioned under the authority of section 26 of the Canada Water  Act.  82  4.2. Implementing integrated approaches in water governance management and use of water (Pearse and Quinn, 1996). The 1987 Policy acknowledged the complexity of water management and endorsed what today might be called a “sustainable water management” paradigm (Pentland and Hurley, 2007): [W]e must manage water like any other valuable resource — with care. The object should be to use it in our own time in a way that leaves it unimpaired for our children and their children after them. Most of all, we must recognize its worth” (Environment Canada, 1987).82 This captured the spirit of the sustainable development agenda in advocating for future generations. It also, in part, recalls the objective of riparian rights and places it on a temporal scale: to use water without impairing its quality or quantity for others, now and for future generations. Further, the 1987 Policy advocated attaching “real value” to water as a resource as well as engaging Canadians in water governance (Environment Canada, 1987). Canada’s new vision for water management invoked the concept of sustainable development introduced by the Brundtland Commission’s Report, Our Common Future in 1987 (Brundtland and World Commission on Environment and Development, 1987).83 And, it focused particular attention on water as a resource; it sought to integrate water management functions (in this way it reflected an IWRM approach). The 1987 Policy did not adopt the ecosystem approach, even though the federal government had endorsed it in the 1978 GLWQA. Instead the 1987 Policy adopted an “integrated approach” that took “into account all water users and water related activities within whatever political, administrative, economic or functional boundaries they are defined” (Environment Canada, 1987). The 1987 Policy was never fully implemented, but the policy has never been replaced. It proved difficult to implement, and the broad uptake of sustainable development across the country by the early 1990s, displaced much of the 1987 Policy and focused efforts on implementing the ecosystem approach which moved away from a single resource management approach (Mitchell and Shrubsole, 1994). In the end, the federal and most provincial governments lost “interest in managing water as a resource in its own right” (Pearse and Quinn, 1996, p. 335). To implement a more integrated, ecosystem approach, in the early 1990s the federal government undertook a 82  Online version, no page number. Kennett (1991) suggests the Brundtland Report had a direct influence on developments in Canadian environmental policy starting from the 1987 Report of the National Task Force on Environment and Economy (p. 22). 83  83  4.2. Implementing integrated approaches in water governance “functional reorientation” (Pearse and Quinn, 1996; Mitchell and Shrubsole, 1994). Federal water institutions were reoriented in three ways: they were wound up (the Inland Waters Directorate and the Interdepartmental Committee on Water), shelved (the 1987 Policy), or had their budgets slashed (the Canada Water Act and the Freshwater Science Program) (Pearse and Quinn, 1996, p. 335-6). The recession of the early 1990s produced further federal reorientation. Retrenchment on environment began with the February 1995 federal program review budget that substantially reduced Department of Environment program funding; from 1995 to 1998 the federal government reduced spending on its environmental mandate by 32% (Paehlke, 2000). Federal disengagement from environmental matters was, in part, financially motivated, and, in part, the result of Canada’s political climate. In the early 1990s, Québec began to prepare for the second referendum on sovereignty to be held in 1995. Natural resource management has long been a marker of provincial autonomy and the federal government treads carefully, unless provincial and federal policy concerns are well-aligned, and especially when the political climate is tense. As well, environmental concerns that, at the Rio Earth Summit in 1992, had seemed to dominate public opinion soon ebbed in Canada, signaling the end of the second wave of sustainability (Dorcey, 2004). With it, the electoral incentives to encourage the federal government to act in environmental matters evaporated (Harrison, 1996). The apparent and relative abundance of water in most of Canada, and the reliability and quality of water services provision means most Canadians84 have few water concerns day-to-day85 (Sprague, 2007). Federal engagement in water policy has ebbed and flowed over the years. At times, such as with the 1987 Policy, water has been a high priority for the federal government. At other times, in fact, more regularly, water has been a lower priority for the federal government as it has focused on staying clear of provincial jurisdiction. The federal government’s restructuring displaced and diffused water expertise so significantly that it had to assemble an in-house “Where’s Water?” team to assess whether its water mandate was being met (Booth and Quinn, 1995). In 1996, commentators remarked that the federal government’s disinterest in water policy seem to “run counter to a growing 84  Of course, as noted previously Aboriginal and rural communities are important exceptions. 85 Canadians remain more concerned about health care than the long-term supply and quality of Canada’s freshwater, and continue to be profligate water user, having a daily average use of 329 litres per person per day (Ipsos Reid, 2011).  84  4.2. Implementing integrated approaches in water governance consensus that water is emerging as a critical need around the world” (Pearse and Quinn, 1996, p. 336). In late 1996, Environment Canada launched internal consultations on a new freshwater policy (Pearse and Quinn, 1996). Those efforts culminated in 2000 with a federal discussion document that, after review by other federal departments, provincial governments and NGOs, was shelved before the planned public consultation and completion of the policy’s development (Quinn, 2008). All the while, a coordinated approach between the federal and provincial governments continued to be an ongoing challenge (Parson, 2001).  4.2.2  Provincial water governance  Ontario entered the sustainable water management era with two core ministries, MOE and MNR, that, in collaboration with conservation authorities, shared the bulk of the provincial water management mandate. MOE remained primarily responsible for “ensuring a high quality environment” and MNR was responsible for “flood control, related water quantity issues, wildlife, and land resources” (Shrubsole, 1990, p. 58). In the 1980s, as today, MOE regulates and manages water for humans and MNR manages water for nature. Two other ministries with mandates affecting water policy are the Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”) and the Ministry of Municipal Affairs and Housing (“MMAH”). OMAFRA’s mandate intersects with the mandates of both of MOE and MNR to the extent that agricultural practices affect water quality and require water supply. MMAH’s mandate includes liaising with and supporting municipalities, and directing land-use planning. Under provincial legislation, Ontario municipalities deliver water, manage wastewater effluent, and develop official plans86 that set out municipal land-use practices which impact water quality, including storm water management.87 In the late 1970s, research in the Great Lakes, connected to the 1972 Great Lakes Water Quality Agreement found that land use activities contribute to point, and non-point, sources of pollution of water (Botts and Muldoon, 2005). Point sources are localized such as industrial discharges and sewage-treatment effluents. Non-point sources are more diffuse such as 86  Official plans have been required since the early 1970s: “All plans of the individual municipalities had to conform to the regional plan. This planning process was the heart of the integrated approach to resource management advocated by regional governments” (Shrubsole, 1990, p. 57). Since at least the mid 1970s, CAs have been commenting on official plans, but most of the comments are simply advisory [Interview 1]. 87 Chapter 5 examines more closely the intersection of land use and water use.  85  4.2. Implementing integrated approaches in water governance the atmosphere or land runoff. A reference, built into the 1972 GLWQA on pollution from land-use activities, resulted in a number of reports by the international research group, known as the Pollution from Land Use Activities Reference Group (“PLUARG”). Over several years PLUARG began to connect land use to water quality.88 In its 1978 report, PLUARG found diminished water quality in the Great Lakes basin due to runoff from a variety of land uses that included: construction sites and storm water; pesticides; fertilizers and feedlots in agriculture; soil erosion; and toxic and hazardous wastes (Castrilli and Dines, 1980). In reviewing the challenge of regulating storm water in Ontario, Castrilli and Dines (1980) noted that the “agencies with the greatest environmental expertise [had] the least legislative authority under the municipal development planning process” (p.10). The land-use planning process was (and is) led by MMAH; MOE and MNR, the environmental experts, had limited engagement or authority in land-use planning. Indeed, this intra-jurisdictional fragmentation served to isolate land-use planning from environmental protection.89 In 1987, a committee of the provincial cabinet once again reviewed the mandate and funding of conservation authorities (Shrubsole, 1996; Mitchell and Shrubsole, 1992). Conservation authorities were meant to be working with MNR on watershed management, but beyond that the CA mandate was fuzzy. The committee found “with the exception of flood control, there was a lack of agreement between the province and municipalities about the specific responsibilities of conservation authorities” (Mitchell and Shrubsole, 1992, p. 76). For forty years CAs had been ‘coordinating’ governments in their watersheds, whatever that meant in a particular watershed. Watershedbased ecosystem planning was meant to “promote more effective and efficient consideration of water and related land resources in decision making for resource allocation and land use planning and development”, which was fine in principle, but, in practice, roles and responsibilities were unclear among the province, municipalities, and CAs (Mitchell and Shrubsole, 1994, p. 20). The obviously fragmented responsibility for watershed management “highlight[ed] the need for interagency collaboration” (Shrubsole, 1990, p. 60). As part of its effort to implement the ecosystem approach that it said was essential to sustainable development, in 1990, Ontario restructured MOE and 88  The PLUARG reports would lay the foundation for later developments in the implementation of ecosystem approach that were part of the 1987 GLWQA(Botts and Muldoon, 2005). 89 This will be discussed in more detail in Chapter 5.  86  4.2. Implementing integrated approaches in water governance MNR.90 Adjusting administrative-executive arrangements within a ministry is one way of addressing intra-jurisdictional fragmentation. Some interviewees cautioned that this approach often causes significant upheaval with limited benefits [Interview 19]. MOEE(as MOE then was) and MNR coauthored a trio of policy documents on watershed planning (Ministry of Environment and Energy and Ministry of Natural Resources, 1993a,b,c).91 The three documents were intended to “assist those undertaking watershed planning in their communities” for two years, while MOEE, MNR, and MMAH “develop[ed] optimum methods and processes for applying water management policies in the municipal land-use planning process” (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c, p. 3). The trio of watershed policy documents drew on the findings of the Royal Commission on the Toronto Waterfront (completed in 1992) to define the ecosystem approach as a holistic approach to managing human activities to deal with environmental problems (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c). Specifically, MOEE and MNR stated: [A]n ecosystem approach to land-use planning requires that boundaries for land-use planning is based on biophysical boundaries as the context for examining the relationships between the natural environment and human activities (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c, p. 4). The use of the watershed was meant to facilitate integration and reduce the likelihood that land-use decisions would “jeopardize ecosystem and human health” (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c, p. 4). This iteration of watershed management agreed with previous provincial statements in that conservation authorities would continue to coordinate watershed planning. And, this time there was more guidance. Specifically, CAs were to “assist municipalities and planning boards to 90  As part of the restructuring, MNR was given responsibility for two new statutes that took a more “integrative approach” to water and land management. The Lakes and Rivers Improvement Act, R.S.O. 1990, C.L.3, regulates public and private use of lakes and rivers by regulating construction, repair and use of dams and prohibiting deposits of refuse, matter or substances into lakes and rivers contrary to the purposes of the Act. The Public Lands Act, R.S.O. 1990, C. P.43, regulates the use, management, sale and disposition of public lands and forests by regulating public and private roads on public lands and empowering the province to construct and operate dams. 91 The three policy documents were entitled — Watershed Management on a Watershed Basis: Implementing an Ecosystem Approach, Sub Watershed Management, Integrating Water Management Objectives Into Municipal Planning Documents.  87  4.2. Implementing integrated approaches in water governance incorporate the intent and recommendations of the watershed plan into the land-use planning process and appropriate planning documents” (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c, p. 28). MOEE and MNR recognized that integration of land use planning and watershed management would be difficult to achieve: [W]atershed planning and land-use planning consider the same environmental issues but from differing viewpoints and at different levels of detail. Currently, the components of resource management and land use planning are not undertaken in a truly integrated manner (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c, p. 5). In Ontario in 1993, land-use planning was mostly the purview of municipal governments, while watershed management was coordinated by conservation authorities, and mechanisms to coordinate the two processes were limited. Conservation authorities have long been permitted to offer plan input and plan review services to municipalities [Interview 1]. However, the varying capacities of CAs would impact the degree of CA involvement. And , municipalities are not obligated to implement CA suggestions. The MOEE-MNR documents made specific reference to jurisdictional fragmentation, although they did not use that terminology. Rather, they noted a number of important tools for planning fall outside of the municipal “scope”. Most of the municipal land-use planning process is set out in the Planning Act, so that [I]mplementing the watershed planning framework often entails specific actions which fall outside of the scope of the municipal land-use planning process. Furthermore, the planning process alone cannot be expected to incorporate and implement all aspects of an effective watershed planning and management process. Therefore, linkages between the two processes are very important (Ministry of Environment and Energy and Ministry of Natural Resources, 1993a, p. 2). The documents acknowledged the “need for a coordinated, integrated approach to managing water resources” (O’Connor, 2002a, p. 91). But, the promised optimum methods and processes to integrate land-use and water management in Ontario were never delivered to the public because, in 1995, the political winds shifted and Ontario had a new government that would quickly demonstrate its disinterest in environmental management. But before its mandate was up, the provincial government (led by Premier Bob 88  4.2. Implementing integrated approaches in water governance Rae) created three new environmental management institutions and tweaked a land-use institution in the early 1990s to encourage more integration of land-use planning and water management. First, the Environmental Bill of Rights 92 (the “EBR”) set out a framework for public involvement in important environmental decisions through an Environmental Registry that notifies and solicits comment from the public on environmental decisions. Since the creation of the EBR, proposed new water legislation and regulations are registered for public comment before being adopted. This development suggested a commitment to engage citizens in collaborative environmental governance. The EBR also required fourteen ministries to prepare Statements of Environmental Values (“SEVs”) that will be discussed further in section 5.2.2. Second, to administer the EBR, and oversee the Environmental Registry, Ontario created a new Office of the Legislature, the Environmental Commissioner of Ontario (the “ECO”). The ECO prepares annual reports to the Ontario Legislature, and “reviews and reports on the government’s compliance with the EBR” (ECO, 2003, p. 7). The ECO reports directly to the Legislature on Ontario environmental policy developments, including water policy, its annual and special reports (cf. ECO, 2000). Its creation suggested a commitment to transparency and accountability in environmental governance in Ontario. Third, Ontario created the Ontario Clean Water Agency (the “OCWA”) to work with municipalities, First Nations, organizations, and businesses to deliver clean water services — water and sewage — on a cost recovery basis (Ontario Clean Water Agency, 2010).93 Concurrently, the OCWA mandate includes the protection of human health and the environment and promotion of conservation of water resources.94 The OCWA is a Crown agency that reports to the Legislature through the Minister of the Environment. The creation of the OCWA may be viewed as the latest in a long-line of efforts by the province to address the old challenge of financing municipal water and wastewater services. Finally, a 1995 amendment to the Planning Act made a major contribution to integrating land-use planning and water management: municipal official plans had to be integrated with watershed plans developed by conservation authorities. In effect, official plans became sub-watershed plans (Shrubsole, 1996). The next year the province delegated (through the provin92  S.O. 1993, c. 28. Capital Investment Plan Act, 1993, S.O. 1993, c. 23. 94 Ibid., s.49(1).  93  89  4.2. Implementing integrated approaches in water governance cial policy statement, the “PPS”) to CAs the responsibility of reviewing municipal plans for natural hazards, thereby strengthening the CAs input and review role [Interview 1]. The CA role is always advisory, except in relation to the PPS natural hazards provisions. Thus, the extent of integration of the plans (beyond natural hazards) is dependent on municipalities. Retrenchment in Ontario had already begun when these collaborative environmental governance and ecosystem management initiatives were undertaken. Under Premier Bob Rae, the NDP government reduced funding for environmental programs by more than fifty percent from 1992 to 199595 (Prudham, 2004). In one example of reduced funding, MOE stopped paying for drinking water testing. Municipalities, responsible for drinking water provision, could either pay MOE to perform water tests, or, alternatively, contract with private labs for water quality testing (Prudham, 2004). Further funding cuts and restructuring followed when the government changed in 1995. The cuts at MOE accelerated and deepened under the “Common Sense” mandate of the Mike Harris-led Conservative government starting in 1995. From 1991-92 to 1995-96, the MOE’s annual budget estimates fell by approximately 30% and total annual expenditures decreased by about $210 million (O’Connor, 2002b, p. 404) The new Ontario Conservative government leaned heavily to the right in pursuit of its “Common Sense” mandate and implemented “neoliberal policies” such as tax cuts, reductions in public service expenditures, and the sale of provincial assets (Furlong, 2007, p. 125). These “neoliberal policies” were intended to make Ontario more amenable to business interests by combating what it perceived as bloated government and over-regulation (Furlong, 2007, p. 125). Cuts extended across the Ontario Public Service, but they were acute at MOE and MNR. In just two years, MOE lost about a third of its staff and budget. In the result, its resources were reduced to 1970s levels (Krajnc, 2000). An internal MOE document from January 1998 “reported that the Ministry had been ‘particularly hard hit’ in comparison with other ministries” its budget having been nearly cut in half since 1995-96 (O’Connor, 2002b, p. 404). MNR hardly fared better. From 1996 to 2000, staff layoffs were significant and the budget was reduced by thirty percent (Krajnc, 2000). Two central agencies, the Management Board Secretariat and the Cabinet set budget reduction targets for MNR and MOE independently (O’Connor, 2002b). In other words, decisions about budgets were made in the absence 95  According to Prudham (2004), the budget peaked in 1991-1992 at $824 million, and fell to $352 million by 1994-1995 (all figures in 1998 dollars).  90  4.2. Implementing integrated approaches in water governance of consultation with bureaucrats who could understand the potential impact of budget cuts on the ability of ministries to deliver their mandates. A number of legislative changes were made concurrently with the “Common Sense” funding cuts. Bill 26, Savings and Restructuring Act, 1996 was an omnibus bill that pursued the “Common Sense” mandate objectives of “fiscal savings” and “economic prosperity” by “restructuring, streamlining and introducing efficiencies to the government’s economic agenda.” Among its impacts, two are particularly relevant to water policy. First, the bill facilitated the amalgamation of Ontario municipalities reducing their number by half. This was an important first step toward restructuring municipal water governance that was later accomplished by the Municipal Water and Sewage Transfer Act, 1997,96 that transferred responsibility for water and sewage services from the province to the municipalities, forcing a pursuit of efficiency in the form of economic and infrastructure sustainability (Furlong, 2007). Second, it amended the Conservation Authorities Act to reduce provincial engagement with and funding of CAs.97 One effect was to shift greater funding responsibility to the CAs themselves and municipalities (Furlong, 2007; Veale, 2007). By 2010, about 10% of one large CA’s budget was funded by the provincial government98 [Interview 1]. The remainder was made up by municipalities and local business interests (who contribute to the CA’s foundation) [Interview 1]. The removal of provincial representation on CA boards has reduced CA funding and changed the nature of the CA board meetings. One CA employee stated: We think ‘Oh hooray’ because they’re [the Province] just creating barriers for us, but on the other hand that liaison was lost. 96  S.O. 1997, c. 6, Sched. A. In particular, the the amendments to the Conservation Authorities Act: provide a mechanism for voluntary dissolution of a conservation authority, remove the Lieutenant Governor in Council’s power to appoint members to conservation authorities and give the MNR power to require flood control operations to be carried out by conservation authorities or municipalities. The amendments also remove requirements for provincial approval of conservation authority projects and land dispositions if the project or land does not involve provincial funding. Other amendments revise the system for levying conservation authority administrative costs and maintenance costs against municipalities by authorizing regulations governing the levies, by providing for appeals and, after a date to be named by proclamation, by restricting the levies to maintenance costs relating to flood control. 98 Up until the mid-1990s the province had financed 50% of CA budgets. This was important because CAs with low populations had fewer resources and often struggled to make up the remaining budget (Mitchell and Shrubsole, 1992). 97  91  4.2. Implementing integrated approaches in water governance I mean usually they chose people who are sort of environmental advocates in the community. They weren’t politicians — it’s good to have those people on the boards because they keep the politicians honest. They would question ‘why, why?’ And so the discussion around the table became much broader because they were like the conscience of the board. And the more elected officials you have the more sort of parochial interests you have at the table, from a political perspective. And, as I said, it’s not as bad as local councils can be when you stop and think why are we [CAs] here? We’re not here to represent the municipal interests were here to represent a watershed [Interview 1]. The CA Act amendments reduced the effective coordination between the CAs and the province. Since the creation of CAs, provincial interests had been represented on the boards, and thus, the province had been directly engaged in watershed scale governance. After the amendments, the province would have no direct engagement with the CAs, a change that continues to challenge current provincial water managers. A staff person at MOE stated: I knew about the funding, but I wasn’t aware of the representation. But it would be great if we had a provincial rep on the CAs. . . they could bring back to us the on-the-ground understanding of CA issues and the people they work with directly. So in that respect I can see it being useful [Interview 7]. Without a representative on the CA board, the province is not directly engaged in governance at the watershed scale. This governance practice promotes inter-jurisdictional fragmentation; it may have important implications for governance patterns at the watershed scale, in that the province is less informed about the issues at that scale. Direct links to CAs might give the province better understanding of the issues at the watershed scale, and reduce the effects of inter-jurisdictional fragmentation on governance patterns. The Red Tape Review Commission, the entity that implemented the “Common Sense” mandate, effected reductions in overall environmental spending, elimination of various environmental regulations, and reduction of funding for environmental enforcement (Prudham, 2004; Furlong, 2007; Winfield and Jenish, 1999; Clark and Yacoumidis, 2000). Those cuts and legislative changes left a legacy in Ontario. In 2007, the ECO observed that MOE and MNR still lack “the personnel necessary to effectively carry out all elements of their mandates” (ECO, 2007, p. 3). It summarized the state of MOE and MNR in 2007 as follows: 92  4.3. Multi-level governance in the Great Lakes [I]n a number of situations, legislation and policies have been amended to allow for the alternative delivery approaches – to allow third parties to carry out activities formerly done by ministry staff. But despite such legislative amendments, MNR remains the ultimate steward of Ontario’s natural resources, and MOE remains responsible for protecting the province’s air, water and land from pollution. While activities may be devolved or downloaded, the stewardship responsibility continues to rest with the provincial ministries. This is the expectation of the Ontario public, and the ministries acknowledge this expectation in their self-described mandates (ECO, 2007, p. 18). MNR and MOE continue to be affected by the changes and funding reductions made some fifteen years ago; they have left a legacy. In 2010, reflecting on the relative size of MOE’s small budget, an interviewee quipped that MOE’s budget is so small it amounts to “a rounding error in the Ministry of Health’s budget” [Interview 5]. The reduction of provincial responsibility for water and the province’s “plan to exit the water business” 99 ultimately created more jurisdictional fragmentation in water governance by scattering responsibility and expertise. Capacities at provincial ministries formerly assigned to deliver services were drastically reduced. Responsibilities were devolved to lower levels of government largely in the absence of financial support that may have enhanced their capacity. But, as stated by the ECO (2007), in the mind of the Ontario public, it is the provincial ministries that retain the responsibility to steward Ontario’s natural resources and protect them from pollution (p. 18). Thus, when tragedy struck at Walkerton in 2000, the consequences would be borne by the provincial government, the publicly recognized steward of, and authority for providing, safe drinking water.  4.3  Multi-level governance in the Great Lakes  Concurrent with the developments in water governance and management at each of the federal and provincial levels, the governments were working together on Great Lakes basin governance. The GLWQA, signed in 1972, was the first bi-national agreement to address water quality in the basin. In contrast, the first IJC reference on water quantity in the Great Lakes was not made until 1964, some fifty-two years after the first quality reference. The developments in management of quality and quantity show two 99  Quoted in Mittelstaedt (1996).  93  4.3. Multi-level governance in the Great Lakes distinct approaches to governance. Quality management has engaged federal governments directly; but they have been less engaged in quantity management. In looking at Great Lakes governance the focus is on governing water in Ontario. Thus, I do not consider the the many multi-level governance institutions of the Great Lakes including the Great Lakes Commission, the Great Lakes Council, the Binational Executive Committee, and Great Lakes United. Instead, I consider the different governance patterns that emerged in quality and quantity management that Ontario engaged in.  4.3.1  Managing quality  The 1972 GLWQA was replaced by the Agreement between Canada and the United States of America on Great Lakes Quality, 1978 (the “1978 GLWQA”). The 1978 GLWQA introduced the ecosystem or integrated approach in which the Great Lakes basin ecosystem was managed as a whole. The 1978 GLWQA did not articulate a definition of the ecosystem approach, but the point was to reduce total pollution, not merely to relocate it (Botts and Muldoon, 2005). In 1983 a phosphorus supplement was added to the 1978 GLWQA. Then, in 1987, the agreement was revised by Protocol (the “1987 GLWQA”) that expanded various GLWQA programs and initiatives to focus on non-point contaminant sources, contaminated sediment, airborne toxic substances, and contaminated groundwater (ARC, 2007, p. 6). A key initiative of the 1987 GLWQA was the Areas of Concern (“AOCs”) program to address the most seriously polluted areas in the basin, to be implemented through locally-developed Remedial Action Plans (“RAPs”). To address broader scale ecosystem contamination, the 1987 GLWQA introduced Lakewide Management Plans (“LaMPs”). Both types of plans required a systematic and comprehensive ecosystem approach to remediation in the Great Lakes. RAPs and LaMPs were seen as a means to increase local government and public involvement in Great Lakes management; and thereby introduced collaborative, multi-level and multi-scalar governance of water quality to the Great Lakes basin (Botts and Muldoon, 2005). RAPs targeted AOCs, areas mostly nearshore that failed “to meet the General or Specific Objectives of the [GLWQ] Agreement where such failure has caused or is likely to cause impairment of beneficial use100 or of the area’s ability to support aquatic life” (GLWQA 1987, Annex 2, s.1(a)). RAPs formed new institutions — including “stakeholder groups, basin com100  Annex 2 s.1(c) defines “impairment of beneficial use(s)” to be “a change in the chemical, physical or biological integrity of the Great Lakes System sufficient to cause any of “an enumerated list of fourteen effects.”  94  4.3. Multi-level governance in the Great Lakes  Figure 4.1: Areas of Concern in the Great Lakes-St.Lawrence River Basin Basin in 2006  Source: Environment Canada (2006) mittees, citizen committees, and public advisory committees” —to represent a broad array of interests including “municipal and local, civil society, industry, land-use planning, and fisheries and wildlife” (Hartig and Zarull, 1992, p. 266). A RAP for each AOC was meant to be developed by multiple levels of government working together with industry and local residents; they were a top-down effort to address local contamination sites (Botts and Muldoon, 2005). Of the forty-three AOCs, seventeen are in Canada and three of those are binational (Botts and Muldoon, 2005). Figure 4.1 shows the AOCs in the Great Lakes basin in 2006. One provincial employee stated that RAPs: . . . were brilliant and the way to go because it got all the stakeholders together. One third to one half of RAPs have worked and the others were failures. But it [RAPs] was a way to overcome jurisdictional fragmentation. They [the governments] recognized it and there was a regulatory framework — in the GLWQA — in place and there were accountability mechanisms [Interview 12]. 95  4.3. Multi-level governance in the Great Lakes Ontario has had some success with RAPs having achieved delisting of three AOCs since 1987 (Environment Canada, 2010a).101 The RAP program has not been formally discontinued, but enthusiasm and progress have waned [Interview 12] suggesting an updated GLWQA might be necessary to reinvigorate the program. LaMPs are binational efforts in four of the five Great Lakes — Lake Michigan being wholly within the territory of the United States — through which the Parties are meant to “reduce loadings of Critical Pollutants102 in order to restore beneficial uses” (GLWQA 1987, Annex 2 s.6(a)). Where loadings do not exceed the Specific Objectives, LaMPs are to prohibit increases in pollutant loadings, in other words, to hold steady or decrease total pollutant levels, throughout the Great Lakes. The 1987 GLWQA negotiations led Ontario to introduce the Municipal Industrial Strategy for Abatement (“MISA”), a series of industrial regulations under the Environmental Protection Act, designed to address “levels of persistent toxic substances in industrial direct discharges entering Ontario’s waterways” (MacDonald and Lintner, 2010). By 1994, the regulations covered nine industrial sectors prescribing effluent limits and monitoring procedures (Botts and Muldoon, 2005; Ministry of the Environment, 2010).103 Ultimately, LaMPs — at the lake level — and RAPs — at the harbour level — were meant to be integrated into a “total basin-wide effort on behalf of the entire Great Lakes ecosystem” (Botts and Muldoon, 2005, p. 133). But, implementation of the 1987 GLWQA is not complete: work in several areas of the GLWQA including RAPs and LaMPs “cannot be considered ‘dealt with’ yet under the agreement” (Botts and Muldoon, 2005, p. 214). Since 1971, the Canada-Ontario Agreement Respecting the Great Lakes 101  Collingwood Harbour delisted in 1994; Severn Sound delisted in 2003; Wheatley Harbour delisted in 2010. 102 Critical Pollutants are defined in Annex 2 s.1(b) as “substances that persist at levels that, singly or in synergistic or additive combination, are causing, or are likely to cause impairment of beneficial uses despite past application of regulatory controls” for at least one of three enumerated reasons. 103 MISA regulations: Effluent Monitoring And Effluent Limits - Electric Power Generation Sector, O.Reg. 215/95; Effluent Monitoring And Effluent Limits - Industrial Minerals Sector, O.Reg. 561/94; Effluent Monitoring And Effluent Limits - Inorganic Chemical Sector, O.Reg. 64/95; Effluent Monitoring And Effluent Limits - Iron And Steel Manufacturing Sector, O.Reg. 214/95; Effluent Monitoring And Effluent Limits - Metal Casting Sector, O.Reg. 562/94; Effluent Monitoring And Effluent Limits - Metal Mining Sector, O.Reg. 560/94; Effluent Monitoring And Effluent Limits - Organic Chemical Manufacturing Sector, O.Reg. 63/95; Effluent Monitoring And Effluent Limits - Petroleum Sector, O.Reg. 537/93; Effluent Monitoring And Effluent Limits - Pulp And Paper Sector, O.Reg. 760/93  96  4.3. Multi-level governance in the Great Lakes Basin Ecosystem (the “COA”) has set the management framework for GLWQA implementation in Canada and its importance to Great Lakes governance has been noted by several commentators (Inscho and Durfee, 1995; Botts and Muldoon, 2005; Crombie, 1992). The 1985 COA104 was extended twice, until a new COA was signed in 1994 (Botts and Muldoon, 2005). Negotiations for a new COA, after the 1987 GLWQA, were lengthy and fraught with tension between the federal and Ontario governments (Botts and Muldoon, 2005). As noted earlier, the early 1990s were characterized by budgetary restraints, especially on environment. The federal government committed to upgrades of sewage treatment facilities in the GLWQA, but refused to provide financial support to the province, arguing that such facilities should be financed exclusively by user fees (Botts and Muldoon, 2005). Frustrated that it was left to pay for commitments the federal government made under the GLWQA, Ontario appealed for either greater funding, or, greater control in making commitments under the GLWQA. As well, the government disagreed on priorities for the new COA. Ontario wanted to focus on the RAPs, while the federal government wanted to focus on the LaMPs, which appeared to be a priority for the United States (Botts and Muldoon, 2005). In the end, in the 1994 COA Canada and Ontario agreed to “commit to restore, protect and sustain the Great Lakes Basin Ecosystem through joint action using an ecosystem approach.” 105 The scope of the ecosystem approach was not defined, but the 1994 COA had three major objectives: to restore the seventeen Canadian AOCs; to reduce by ninety percent the use, generation and release of thirty-seven persistent toxic substances; and to conserve and protect human and ecosystem health in the Great Lakes basin (Canadian Institute for Environmental Law and Policy, 2000).106 It prescribed measurable targets for meeting each of the basic objectives and assigned both the federal and provincial government responsibility for achieving GLWQA objectives. But, the 1994 COA was less articulate about funding arrangements (Botts and Muldoon, 2005).107 Breaking with the 1971-1985 tradition that COAs were funding agreements in which the federal government transferred money to Ontario to support implementation of GLWQA objectives, the 1994 COA was a cooperative agreement, not a funding agreement. Since the 1994 COA, “the infrastructural requirements of the province have not been paid by the federal government” [Interview 12]. 104  Some sources date this COA to 1985 (Botts and Muldoon, 2005) others to 1986 (Inscho and Durfee, 1995). 105 Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem 1994, p.1. 106 Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem 1994. 107 Ibid.  97  4.3. Multi-level governance in the Great Lakes The retraction of federal funding in the 1994 COA coincided with retrenchment on environmental issues generally in the 1990s. There has yet to be a reversion to the original funding structure of the COA. Reduced funding of the COA also reduced technical resources and leadership on RAPs. The 1994 COA shifted the governance pattern for Great Lakes water quality. The underlying inter-jurisdictional fragmentation had not changed, but disagreement on roles and responsibilities had; chiefly regarding funding of the 1987 GLWQA commitments. This moved the pattern of Great Lakes water quality governance from cooperative to conflictual, under which, progress would begin to wane. As noted by Harrison (1996) the incentives for the federal government to engage in environmental management disappears when the public is less concerned. In the early 1990s, Canada was in economic decline reducing the relative importance of environment. Since 1987, the GLWQA has not been amended. The IJC concluded in 1992 and 1998 that comprehensive review of the agreement was unnecessary. Instead, efforts focused limited funds toward implementation — especially the advancement of work on RAPs and LaMPs. Finally, in 2004, the IJC called for a comprehensive review of the 1987 GLWQA, and urged Canada and the United States “to be thorough, visionary and far-reaching” in the GLWQA update (IJC, 2004, p. v). In 2007, the Canadian and US governments completed an extensive review (the “2007 Review”) of the 1987 GLWQA, synthesizing the findings and recommendations of a series of Review Working Groups which had consulted multiple levels of government and “individuals from Tribes and Aboriginal groups; non-government organizations; industry; academia; and the interested public” (ARC, 2007, p. 7). The 2007 Review found the new GLWQA needed “stronger linkages. . . between the stated purpose and the measures in the Agreement’s articles and Annexes” to achieve its overall purpose (ARC, 2007, p. 2). The provisions relating to chemical, physical, and biological integrity required updating with greater focus, especially on the latter two. The ecosystem approach of the GLWQA needed to be clearly articulated to improve implementation (ARC, 2007). As well, the 2007 Review stated the new GLWQA needed to adopt watershed management planning — which its authors called a “new approach” since the 1987 Protocol — in order to address 21st century issues such as climate change, aquatic invasive species, urbanization, and biodiversity (ARC, 2007, p. 2). The watershed approach has been widely taken up in the last decade in North America, and has been a major feature of Ontario water governance since 1946. Great Lakes governance has been carried out largely on a basin-wide approach (or larger watershed approach) using LaMPS and AOCs to target different scales. Thus, 98  4.3. Multi-level governance in the Great Lakes the newness of the watershed approach is questionable. Nonetheless, a more explicit introduction of the concept may serve to better integrate land-use planning and water management, but the watershed scale should not be seen as a panacea for water management. Renegotiation of the GLWQA commenced in June 2009. The American government has committed $2.2 billion, nearly all of it new money, over the next five years to the Great Lakes, but the Canadian government has yet to announce its contribution [Interview 8]. We should expect to see greater involvement of Ontario in the negotiations of the amended GLWQA since the era of collaborative federalism has recognized “a provincial role in international negotiations that affect their jurisdictions” (Meekison et al., 2004, p. 24). However, interview data suggest that, as of 2010, the federal and provincial governments have yet to significantly coordinate their approaches. According to one provincial employee, “[they’re] renegotiating the GLWQA and the province doesn’t know what the federal position is” [Interview 12]. The conflictual governance pattern that emerged in the 1994 COA remains in place today. Although the GLWQA has not been updated in nearly twenty-five years, the COA has continued to be amended. The 1994 COA expired in March 2000 and the replacement COA was ratified and signed in June 2002 (Botts and Muldoon, 2005, p. 174). Some commentators suggest that two factors — heavy criticism of the 1994 COA by an environmental NGO and tensions between the federal Liberal government and provincial Conservative government — made the negotiation of the 2002 COA especially challenging (Botts and Muldoon, 2005). When agreement was finally reached, the 2002 COA included few specific measurable targets or timelines on funding (Botts and Muldoon, 2005, p. 175).108 In 2002 the COA a defined the ecosystem approach as “the interdependence of land, air, water and living organisms, including humans, and the need to make decisions that will maximize the benefits to the entire Basin Ecosystem.” 109 The most recent COA, made in 2007, did nothing to advance an agenda on the Great Lakes basin or to address the inadequate funding situation that persisted from the 1994 COA. One provincial employee stated that the 2007 COA “is a useless piece of paper. . . [that serves as] a place holder for [federal-] provincial relations” [Interview 12]. Canada and Ontario have extended the 2007 COA to March 31, 2012, in order to maintain Great Lakes programming while the amendments to the GLWQA are negotiated [unpublished e-mail 108 109  Canada-Ontario Agreement respecting the Great Lakes Basin Ecosystem 2002. Ibid., p.5.  99  4.3. Multi-level governance in the Great Lakes from MOE Great Lakes Branch, Carolyn O’Neill]. The federal-provincial relationship in managing the Great Lakes has deteriorated substantially in the past decade [Interview 5]. Now “we rarely actually have any collaborative working relationships with the federal government. We each deliver independent mandates” [Interview 5]. There is presently “little policy coordination, no enforcement coordination, and no management coordination” [Interview 5]. These statements suggest we should not expect the federal and provincial governments to easily achieve coordination of their efforts to update the GLWQA. The governments may share a common goal of improved water quality in the Great Lakes basin, but an unresolved disagreement on funding responsibilities (and perhaps other issues) has stalemated management progress. In managing water quality in the Great Lakes after the sewage stalemate, Canada and Ontario struck a cooperative note in the 1970s that facilitated the making of the 1972 GLWQA. That cooperation persisted until negotiations began for the 1994 COA, when the federal government stopped funding the COA to support its commitments under the 1987 GLWQA. Governance patterns in response to inter-jurisdictional fragmentation between the federal and Ontario governments on water quality management in the Great Lakes basin have been both cooperative and conflictual.  4.3.2  Managing quantity  In the 1960s a series of inter-basin transfer proposals110 emerged in which Canadian water would be transferred into the Great Lakes and onward to other basins in North America, “to solve flooding, shortage and quality problems across the continent” (Pearse et al., 1985, p. 17). The proposals to divert waters from the Great Lakes sparked a new interest in water quantity management and, in 1964, the first reference to the IJC on quantity “to determine whether measures within the Great Lakes Basin can be taken to regulate the water levels of the Great Lakes to reduce extreme low and high water stages” (IJC, 1964). In part, the historical tendency of quantity to be a secondary concern, to the more prominent concern with water quality, can be attributed to the fact that the Boundary Waters Treaty of 1909 “does not purport to require a basin-wide, comprehensive approach to the management of shared waters” (IJC, 1985, p. 42). The IJC has suggested two reasons 110 Of these proposals, perhaps, the Great Recycling and Northern Development (Grand) Canal Project is the best known. The Grand proposal would collect water from northern Quebec (James Bay) and transfer it to the southern United States. See Farid et al. (1997, p. 28) for more discussion.  100  4.3. Multi-level governance in the Great Lakes for the Treaty’s minimal focus on quantity.111 When the Treaty was made “water supply, certainly in the Great Lakes, was regarded as virtually unlimited” and “river basin planning to deal with complex interrelated issues” was virtually unheard of in 1909 (IJC, 1985, p. 42). The second reference to the IJC on quantity in the Great Lakes was made in 1977 to “examine and report the effects of existing and proposed diversions within, into, or out of the Great Lakes basin and the effects of consumptive uses on Great Lakes water levels and flows” (IJC, 1985, p. 51). The IJC stated that, given the “positive results of co-ordinated federal-state and federal-provincial efforts in achieving mutually agreed goals” under the GLWQA, Canada and the US should consider the “similarly advantageous results [that] might accrue to the two countries through co-operative efforts in the field of water quantity management” (IJC, 1985, p. 41). Further, the IJC noted that up until 1985, “[S]erious disputes have not arisen between Canada and the United States regarding the sharing of Great Lakes waters” (IJC, 1985, p. 42). The avoidance of conflict was attributed as much to the two countries’ commitment to “consultation, co-operation and accommodation” as to the fact that, thus far, “there has been enough [water] to go around” (IJC, 1985, p. 42-3). Nonetheless, in 1985, the IJC urged the governments “to engage in broad but systematic discussion of their use of Great Lakes water before they are faced with any sense of crisis, actual or imminent, and before any relationships deteriorate or become jeopardized” (IJC, 1985, p. 43). Heeding the IJC’s advice, the eight Great Lakes states, Ontario, and Quebec signed the 1985 Great Lakes Charter.112 The Charter, a non-binding agreement,113 had lofty purposes: to conserve the levels and flows of the Great Lakes and their tributary and connecting waters; to protect and conserve the environmental balance of the Great Lakes Basin ecosystem; to provide for cooperative programs and management of the water resources of the Great Lakes Basin by the signatory States and Provinces; to make secure and protect present developments within the region; and to provide a secure foundation for future 111  That said, the Boundary Waters Treaty of 1909 did contain provisions for quantity, at Articles V and VI, respectfully, in the Niagara River and in the St.Mary-Milk Rivers. 112 According to MNR, “If the Canadian federal government were to negotiate a binational treaty, it would have to deal directly with the U.S. federal government, which would have to represent the interests of water users across the continental United States, not just the Great Lakes states” (Ministry of Natural Resources, 2005). 113 The agreement is non-binding because it is made amongst jurisdictions that lack the authority to make binding agreements of an international nature.  101  4.3. Multi-level governance in the Great Lakes investment and development within the region.114 In practical terms, the parties agreed that no new or increased consumptive use or diversion of Great Lakes waters that averaged more than nineteen million litres per day average in any thirty-day period “without the notification, consultation, and approval of all parties to the Charter” (Sheikh and Brougher, 2008). For the next dozen years, the Charter languished and few provisions were implemented (Farid et al., 1997). In the mid-1980s Canada concluded a Free Trade Agreement with the United States, and then a continental free trade agreement — the North American Free Trade Agreement (“NAFTA”) — with Mexico and the United States in 1994.115 The NAFTA negotiations reinvigorated public debate on bulk water exports. Bulk removal of water from Canada had been controversial since the Grand Canal Project in the 1960s (Boyd, 2003; Pearse et al., 1985). The NAFTA lacks a specific exemption for water and various commentators have suggested this ambiguity could limit Canada’s ability to control bulk water exports. According to Boyd (2003), under NAFTA “Canada’s ability to ban or restrict water exports” is limited to “legitimate health or environmental objectives,” but the restrictions must be proportional to the objectives (p. 61).116 The issue of bulk water exports and diversions came to national attention in 1998 when two private companies sought bulk water removal permits; one in Ontario, the other in Newfoundland. In the spring of 1998, MOE granted a five-year permit to the NOVA Group (“NOVA”), a private company based in Sault Ste. Marie to “withdraw[] by tanker of up to 600 billion litres a year of Lake Superior water” (Cooper and Miller, 1998). Even though the withdrawal volume was less than the limit set out in the Great Lakes Charter and, therefore, did not require consultation and approval of the other parties to the Charter, the public and Great Lakes States expressed concern (Cooper and Miller, 1998). In July 1998, MOE revoked NOVA’s permit and the company filed an appeal at the Ontario Environmental Appeal Board, but the government settled with NOVA before the appeal was heard. In response to the NOVA incident in 1999, Ontario passed a Water Taking and Transfer Regulation to prohibit “large water transfers out of the Great Lakes basin” (ECO, 2005, p. 65). 114  Great Lakes Charter 1985: Principles for the Management of Great Lakes Water Resources, purpose section. 115 North American Free Trade Agreement, 32 I.L.M. 289 and 605 (1993). 116 For more discussion on water exports in Canada see Boyd (2003, pp. 53-65). The presumption is that the United States, with ten times the population of Canada and similar reserves of freshwater, would be importing water from Canada.  102  4.3. Multi-level governance in the Great Lakes The federal government’s response to public outcry over the NOVA Group permit to export water in Ontario, and the McCurdy Group proposal to export water from Newfoundland, was a three-pronged strategy to limit bulk exports of water (Boyd, 2003, p. 57). First, it amended the International Boundary Waters Treaty Act 117 to prohibit the use or diversion of “boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located.” 118 Second, the federal government proposed, but never concluded, a Canada-wide accord, with the provinces, on bulk water removals (Boyd, 2003). However, most provinces did pass legislation to prohibit bulk water exports. Finally, in 1999, Canada and the US put a third reference on quantity to the IJC. This time, they asked the IJC to study the impact of consumption, diversion, and removal (including for export) of water from the Great Lakes (IJC, 1999). In its final report on diversions in February 2000, the IJC found that the “Charter’s trigger amount for consideration of significant proposed new diversions and consumptive uses is too high to encourage the degree of consultation regarding the use of Great Lakes water that is needed to assure the sustainable use of these resources” (IJC, 2000, p. 44). To maintain the ecological integrity of the Great Lakes basin, the IJC report stated the basin required “protection, especially in light of uncertainties, pressures and cumulative impacts from removals, consumption, population, economic growth and climate change” (Government of Canada, 2003). After the NOVA incident, the parties to the Charter revisited their agreement; they signed the 2001 Annex to the Great Lakes Charter, and committed to develop binding agreements that would “further the Governors’ and Premiers’ objective to protect, conserve, restore, improve, and manage use of the Waters and Water-Dependent Natural Resources of the Great Lakes Basin.” 119 In 2005, the Parties signed the non-binding Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (the “Quantity Agreement”) to implement the Annex. Ontario passed the omnibus Safeguarding and Sustaining Ontario’s Water Act, 2007 which amended or repealed several statutes in fulfillment of its commitments under the Quantity Agreement. As in quality management, quantity management of the Great Lakes basin requires multi-scalar and multilevel governance. Quantity management at the international scale however, directly engages the eight Great 117  R.S., 1985, c.I-17, s. 13. The regulations specify the volumes of water that are considered “bulk”. 119 Great Lakes Charter Annex: A supplementary agreement to The Great Lakes Charter 2001, objectives section. 118  103  4.4. The Walkerton tragedy and its immediate aftermath Lakes States, Ontario and Quebec. International scale water quantity governance in the Great Lakes does not directly include either the Canadian or US federal governments. More stakeholders are involved in negotiations, and the negotiating governments play a larger role in implementation. In Ontario, this creates intra-jurisdictional fragmentation since MNR represents Ontario at the Quantity Agreement negotiations, but it is MOE that is largely responsible for the legislation that implements the commitments made by MNR (ECO, 2005, p. 66). The Walkerton tragedy would illuminate further the impacts of jurisdictional fragmentation on governance patterns in Ontario.  4.4  The Walkerton tragedy and its immediate aftermath  In May 2000, the Walkerton tragedy struck. The drinking water of the town of Walkerton, Ontario was contaminated by E. coli; seven people died and over two thousand fell ill. A water quality crisis of such magnitude was unprecedented in Canada. The tragedy brought new awareness to the vulnerability of drinking water in Ontario, and elsewhere in Canada. It shifted the focus of Ontario water policy from quantity (following on the NOVA incident and Charter Annex negotiations) to drinking water quality, and it contributed to the defeat of the provincial government at the election in 2003. In the wake of the tragedy, the Ontario government appointed Mr. Justice O’Connor to lead an inquiry into events at Walkerton. The Walkerton Inquiry held extensive hearings that resulted in a comprehensive two-part report in 2002. The tragedy at Walkerton revealed the extent to which the provincial government had devolved responsibility to Ontario municipalities and the lack of local capacity to manage water. The broad mandate given to the Walkerton Inquiry to examine the causes and circumstances of the tragedy extended to “any other relevant matter that the Commission [Inquiry] consider[ed] necessary to ensure the safety of Ontario’s drinking water” (O’Connor, 2002b, p. 471). Part 1 of the report examined the events of the tragedy. The Inquiry found that the MOE budget cuts had both direct and indirect effects on the tragedy (O’Connor, 2002b, p. 406-7). Directly, budget cuts led to privatization of laboratory testing of drinking water that, in turn, was not sufficiently regulated to protect the risks to public health (O’Connor, 2002b, p. 406). Indirectly, budget cuts had reduced the scope of MOE’s regulatory oversight and enforcement, as well as its ability to be proactive in approvals and inspections (O’Connor, 104  4.4. The Walkerton tragedy and its immediate aftermath 2002b, p. 407). Part 2 of the report presented a series of recommendations based on stakeholder input (from expert research to public comment) that, when implemented, would amount to a multi-barrier approach to safe drinking water. The multi-barrier strategy integrates source-to-tap protection through five barriers to ensure water quality: source water protection, adequate treatment, secure distribution, proper monitoring and warning systems, and appropriate responses to adverse conditions (O’Connor, 2002a). The multibarrier strategy is an adaptive management approach that monitors the drinking water system and responds to feedbacks to improve management. The Ontario government’s mandate under Premier Mike Harris, to reduce red tape and eliminate government bloat, had resulted in deep cuts to MOE and MNR. The cuts had been made with minimal regard for the government’s role as steward of Ontario’s water. In the aftermath of the tragedy, but before the Inquiry was complete, the provincial government introduced three statutes to reprise its stewardship role for water in Ontario: the Safe Drinking Water Act, 2002 120 (to set drinking water standards); the Sustainable Water and Sewage Systems Act, 2002 121 (to introduce full cost accounting for water services provision); and the Nutrient Management Act 122 (to manage agricultural contamination). The Safe Drinking Water Act, 2002, and its regulations addressed a number of weaknesses in Ontario water management as reported by the Walkerton Inquiry: it introduced “binding standards, enhanced operator certification, requirements for laboratory certification, source water protection, and public notification if drinking water is unsafe” (Hill and Harrison, 2006). Under the Act, a regulation, Ontario Drinking Water Quality Standards,123 set out specific microbiological, chemical, and radiological standards for drinking water quality. The Sustainable Water and Sewage Systems Act, 2002, which was enacted but has never come into force (and likely will not), would have required municipalities to adopt full-cost accounting for their water and waste water systems.124 The Nutrient Management Act, 2002, in development prior to Walkerton, was intended to facilitate creation of a consistent 120  S.O. 2002, c. 32. (first reading April 23, 2001) S.O. 2002, c. 29. (first reading December 12, 2001) 122 S.O. 2002, c.4. (first reading June 13, 2001) 123 O.R. 169/03. 124 The key point of the Act was to create regulatory authority to introduce full cost accounting for sewage infrastructure as envisaged by the Walkerton Inquiry. It is likely this will be done under the new Water Opportunities Act, 2010, S.O. 2010, c.19 Schedule 1 [Interview 17]. 121  105  4.5. Water policy in Ontario after Walkerton set of rules for agricultural practices affecting waterways through nutrient loading [Interview 17]. These statutes were the first step in responding to the Walkerton tragedy. In a report presented at the Walkerton Inquiry hearings, Conservation Ontario (2001) (the network of provincial CAs) noted that a persistent barrier to watershed management was “[F]ragmentation of water responsibilities in Ontario” (p.39). In particular, it stated that fragmentation included “unclear mandates, duplication of responsibilities, and conflicting missions” (p.34) as well as “lack of monitoring, and information gaps” (p.42). This fragmentation has impacted Ontario watershed management leading to “difficulties in co-ordinating activities”(Conservation Ontario, 2001, p. 39). The three new statutes did not resolve all of the fragmentation (jurisdictional or otherwise) the Walkerton Inquiry had reported. Confusion remained between the roles of MOE and local medical health officers in drinking water treatment and distribution (O’Connor, 2002a). On the relationship between source protection and safe drinking water, the Inquiry noted “[A]lthough the government recognizes that these two areas are interrelated, government policies dealing with each have not been integrated” (O’Connor, 2002a, p. 398). At the time of the Walkerton tragedy, Ontario had no source protection legislation, unlike a number of other jurisdictions in Canada (e.g. British Columbia) (Hill, 2007). In the opinion of the Inquiry, the three new statutes amounted to a partial approach to a drinking water strategy since: “there is still little evidence of the emergence of a coherent and comprehensive safe dinking [sic] water policy or strategy”(O’Connor, 2002a, p. 398). At the time of Walkerton, the province lacked a comprehensive and coherent drinking water strategy, and the water governance framework it had was hampered by fragmentation. The three political parties in Ontario (Liberals, Conservatives, and New Democrats) committed to implementing each of the one hundred and twenty-one Walkerton Inquiry recommendations. When the Liberals won the 2003 Ontario election they picked up where the outgoing Conservatives had left off.  4.5  Water policy in Ontario after Walkerton  The development of a coherent and comprehensive policy for safe drinking water remains an ongoing project in Ontario. In August 2007 the Ministry of Environment reported that implementation of all the Walkerton Inquiry recommendations was complete (Ministry of the Environment, 2007b). Some have suggested that implementation of the recommendation is, in fact, far 106  4.5. Water policy in Ontario after Walkerton from finished. According to one NGO interviewee, [I’ve written] letters that said putting a law in place that enables source water protection is not ‘implementing’ it until it’s fully implemented, but that’s kind of in their mind what is the checklist; which is whether or not they enacted that law. Whether or not we actually see any source protection is still years away [Interview 13]. Indeed, source protection plans will not be implemented until 2013. But, it is unquestionable that the one hundred twenty-one recommendations of the Walkerton Inquiry have been the major driver of water policy efforts in Ontario in the post-tragedy era [Interview 13, 17]. In its 2001 report to the Walkerton Inquiry, Conservation Ontario stated, [T]he lack of a comprehensive water policy and the fragmentation of water responsibilities has sometimes led to uncertainty about specific water management roles and responsibilities and resulted in inconsistent links between planning and implementation. In spite of legislative fragmentation, Ontario has developed a long-standing institutional framework that promotes a co-operative watershed approach (Conservation Ontario, 2001, p. 38). Parsing this statement reveals that for Conservation Ontario, the lack of a comprehensive policy is a separate issue from jurisdictional fragmentation. In fact, jurisdictional fragmentation has been associated with some cooperative governance patterns, exemplified by the institutions of the watershed approach. Conservation authorities have matured into critical institutions of watershed management that have important roles in coordinating multi-level governance on particular water management issues at the watershed scale. A comprehensive policy would fit the pieces of water policy together, including the issues managed at the watershed scale. The Walkerton Inquiry advocated a comprehensive and integrated policy as part of a secure drinking water strategy. An integrated policy is critical to connect the elements of the multi-barrier approach, and to integrate governance across scales. The Inquiry focused on the importance of an integrated approach for safe drinking water: A more integrated approach [in Ontario water governance]. . . is necessary to protect the quality of Ontario’s drinking water sources. Protecting water resources for the purpose of maintaining or 107  4.5. Water policy in Ontario after Walkerton improving the quality of drinking water sources must be a primary focus of strategic planning for water at the provincial level (O’Connor, 2002a, p. 92). In the ten years since the Walkerton tragedy, Ontario has introduced various new water policies and programs, including an innovative source protection program and implementing the Quantity Agreement made with the Great Lakes states. But Ontario does not have a comprehensive and integrated water policy. One conservation authority staff person stated: There is still no all-encompassing water legislation in Ontario and it is fragmented into different aspects of water management that maybe don’t talk to each other. I think that’s just the reality [Interview 1]. This statement recognizes fragmentation as a reality of governing water in Ontario. Another conservation authority staff person stated: Lacking an umbrella provincial water strategy that lays out a common framework and sets of principles governing water decisions [it] won’t make or break but a strategy could give a reason for people to connect annually to clarify priorities and agenda [Interview 3]. Again, there is an acceptance of fragmentation as the reality, but there is a definite desire to improve coordination and to do that through some sort of strategy. A number of provincial employees confirmed that Ontario does not have a single strategy. One stated: So there probably 50 corners of water management with no single lead in the province. Ontario doesn’t have something equivalent to Alberta’s Water For Life strategy that sets out all the policy in one place [Interview 5]. Another provincial employee concurred with that statement noting: In Ontario you could piece together a bunch of documents, but it would be disjointed and there would be some gaps. So to me there’s not a comprehensive water protection strategy for Ontario [Interview 7]. A water program area manager at the provincial government stated:  108  4.5. Water policy in Ontario after Walkerton We do a pretty good job of communicating the individual pieces and we have a sense internally as to how they all fit, but yeah, there is no official Ontario water document – a document that you could point to [Interview 6]. This view was echoed by an eNGO water policy specialist. That interviewee concurred that Ontario lacks an overall policy, but had many individual program pieces, and stated for that reason: ...in our advocacy we say an integrated framework is where we need to go next – not that the pieces need to be different, but that we need an overview [Interview 17]. Ontario has developed a number of individual program areas of water policy, but there is no overall policy that shows or explains how the pieces fit together. As to why Ontario does not have a comprehensive water policy strategy, provincial employees either did not know [Interview 7] or suggested the absence of a provincial water strategy was due to “government commitment [being] driven in the four-year electoral cycle” [Interview 5]. The Walkerton Inquiry stated that, “[I]mportantly, even before the Walkerton tragedy, the government was beginning to move in the direction of establishing a comprehensive water management framework for Ontario” (O’Connor, 2002a, pp. 91-92). A provincial government employee stated that a comprehensive framework for managing water remains forthcoming, that it is a “work plan item within the civil service to develop an overarching plan in Ontario” [Interview 5]. Another provincial program manager stated that development of an overarching policy: is always a possibility. We certainly have enough things that we can talk about that are part of the work that we are already doing. Um, it’s always a possibility. But I can’t say what they’d like to do at this point in time. I’m busy enough delivering on all the individual pieces that make [up] the mandate [Interview 6]. Ontario may develop a comprehensive water strategy, but in the meantime, its water management framework remains fragmented and focused on specific program areas. Ten years after Walkerton the strategic plan of Ontario’s water policy has not been articulated in one place for Ontarians to access. Ontario has many 109  4.5. Water policy in Ontario after Walkerton individual program areas for water, especially for drinking water security (e.g. improved operator training, new quality regulations, and forthcoming source protection plans), but the links between the pieces, and especially, between quality and quantity, and between various laws and policies, are unclear. Some interviewees suggested a comprehensive policy might be helpful for understanding how the pieces fit together. Others have interpreted the lack of a comprehensive policy as a lack of integrated thinking by the province. One eNGO employee stated: . . . there is a lack of overarching thinking so there will be a need to try and figure out how water quantity legislation now interacts with water quality legislation [Interview 18]. On that point a provincial manager said: We are protecting water, but nobody’s put together a roadmap that says this is where climate change factors in and how we are dealing with that. And to me that’s what’s missing. We can talk about protecting water but we need a 20-year calendar that factors in climate change, population growth, water use, efficiencies, all of these factors, but there’s no master planning process...no priorities are set in a thought-through, objective-based approach that would be imposed upon an overarching water strategy. So political agendas are driving water. ... An integrated water policy for Ontario that would guide decisionmaking across different branches and divisions would be helpful [Interview 5]. Another eNGO employee lamented the absence of an accessible, clear view of the big picture of Ontario’s water policy: We’re lacking an overarching strategy. So it’s very piecemeal. And then you have all this land-use planning. Which also drew new boundaries and looks at things in a different way... It’s a silo mentality with the government. It’s partly just the way I think Ontario has always approached things [Interview 15]. A comprehensive policy is necessary, but likely not sufficient, to improve the integration between policy silos and especially between land-use and water policy. The risk of a fragmented approach is that it can leave some issues unattended: 110  4.6. Governing water in 21st century Ontario We have all these little pieces of things. A lot of them came out of Walkerton, targeted legislation for each piece of O’Connor’s recommendations. But, there’s nothing overarching. So sometimes things can fall off the table. . . [Interview 15]. Indeed, a high level view of Ontario water policy could help show gaps and overlaps in programing. Another interviewee, a provincial employee, queried whether a comprehensive policy was necessary: I don’t know if that’s [not having a comprehensive policy] a weakness. If you have all the parts working well, do you really need a big umbrella piece? I don’t know. I don’t know. . . I would be very leery of a water strategy because it evicts water from its home. I would prefer we have a strategy to protect northern ecosystems, because of the land connection, because water keeps things alive so you have to factor the fish in. I would prefer we took the province and looked at it in terms of its major drainages. To protect the water along with the water’s home. . . So, I don’t know if an overarching water strategy is a gap, but I do think we need some form of overarching ecosystem management. That is probably a gap [Interview 8]. This interviewee captures the tension between IWRM (as water-focused management) and the ecosystem approach (an integrated approach that does not prioritize water); and between integration and fragmentation. Putting all the pieces together into a single strategy may hold certain appeal, but it is a legitimate concern that too much integration, with too great a focus on water, may, unhelpfully, divorce water from its key relationships. Nonetheless, a concern with too much integration should not preclude development of a roadmap, or guiding document, that shows how policy pieces relate to one another and where gaps may exist.  4.6  Governing water in 21st century Ontario  Governing water in Ontario in the 21st century is a multi-scalar, multi-level and multi-agency process. The federal government has had a limited role, leading coordination efforts amongst the provinces and territories, collecting data through monitoring, and negotiating international agreements [Interview 32]. Given that Canadian federalism continues to move toward increased decentralization, in which provinces increasingly assert their authorities, this is unsurprising. Federal interviewees concurred that the federal 111  4.6. Governing water in 21st century Ontario  Table 4.1: Water quality mandates of the eight main federal ministries with water-related responsibilities Federal department  Main water quality concern  Agriculture and Agri-Food Canada  Water for agriculture and food  Foreign Affairs and International Trade Canada  International negotiations regarding water quality  Environment Canada  Environment, generally, including water quality  Fisheries and Oceans Canada  Water quality for fish and aquatic resources  Health Canada  Drinking water quality  Indian and Northern Affairs Canada  Drinking water & wastewater in Aboriginal communities  Natural Resources Canada  Impacts of natural resource sector on aquatic ecosystems  Transport Canada and Water and wastewater treatment plants Infrastructure Canada Source: Federal Department websites http://www.canada.gc.ca/depts/major/depind-eng.html government could lead more on pan-Canadian water policy, it has the constitutional authority to do so. But, they cautioned the federal government sees its water mandate as narrow. Outside of its specific legislative authorities, the federal government understands its water mandate to include science — data and monitoring — and “high level policy orientation” or policy diffusion in the sharing of lessons learned internationally and within the country [Interview 24]. Currently, twenty federal departments are reportedly engaged in water policy, but, according to the Policy Research Initiative, only eight of them have significant roles (Morin and Cantin, 2009). Table 4.1 shows the eight federal departments and for illustrative purposes only the water quality component of their mandates. None of the departments have the chief responsibility for maintaining water quality in the abstract, but they each have an interest in maintaining water quality in pursuit of their main mandate. Some of the mandates 112  4.6. Governing water in 21st century Ontario are more overlapping than others, but certainly the need for coordination amongst the departments is evident. Within each department, water quality must be balanced against other important mandate objectives. An acute example is in Natural Resources Canada, where the department is balancing the impacts of natural resource extraction against the health of aquatic ecosystems. Several federal departments have operations branches that engage inter-jurisdictionally with operations colleagues at the Ontario government to implement policy and programs [Interview 8]. The federal government currently has a limited role in watershed scale governance, but is considering how it might engage there [Interview 22]. The contradictions and complexity of these mandates, and their intersections, shows how intra-jurisdictional fragmentation at the federal level might produce considerable discussion, but limited progress toward an updated federal water policy [Interview 24, 29, 30]. In Ontario, fourteen ministries are engaged in water policy in various capacities, delivering a multitude of water-related programs, pursuant to numerous policies and some fifty-six Ontario statutes related to land use planning and water management [Interview 5]. Today, six ministries are engaged in water management: MOE, MNR, the Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”), the Ministry of Municipal Affairs and Housing (“MMAH”), the Ministry of Transport (“MOT”), and the Ministry of Infrastructure (“MOI”). Table 4.2 shows the mandates of each of these six ministries. The first four mandates are perhaps more obviously directly linked to land-use planning and water management. However, the MOT and MOI play important roles in both. A conservation authority interviewee stated that Ontario’s water management and land-use planning “are driven by transportation decisions” regarding corridors made by the Ministry of Transport, along which development has followed [Interview 4]. The Ministry of Infrastructure has an important role in integrating land use and water management through water services infrastructure and provincial growth planning. Some programs are delivered by partnerships of multiple ministries or agencies (including agencies that do not directly manage water), whereas others are led by one ministry in consultation with others. Several interviewees noted the current Ontario premier strongly supports an environmental mandate that extends through the higher levels of Ontario government ministries, so that “[E]nvironment has been on the front page since McGuinty became premier” [Interview 5]. The present executive of the provincial government is invested in improving environmental management, including water, outcomes. The situation in Ontario is not the case of a provincial public 113  4.6. Governing water in 21st century Ontario  Table 4.2: Direct and indirect provincial water management ministries Provincial Ministry  Main mandate  Ministry of the Environment (MOE)  Responsible for protecting clean and safe air, land and water to ensure healthy communities, ecological protection and sustainable development for present and future generations of Ontarians  Ministry of Natural Resources (MNR)  Promotes healthy, sustainable ecosystems and conserves biodiversity; manages Ontario’s Crown land, promotes economic opportunities in the resource sector and enhances opportunities for outdoor recreation  (Ontario) Ministry of Agriculture, Food and Rural Affairs (OMAFRA)  To transform agriculture and food sectors and rural communities for a healthy Ontario  Ministry of Municipal Affairs and Housing (MMAH)  To develop an Ontario made up of safe and strong urban and rural communities with dynamic local economies, abundant greenspace and a quality of life that is second to none.  Ministry of Transportation (MOT)  To be a world leader in moving people and goods safely, efficiently and sustainably, and to support a globally competitive economy and a high quality of life.  Ministry of Infrastructure To modernize public infrastructure as part of an (MOI) integrated vision that encourages the kind of growth and environmental stewardship that enhances quality of life and contributes to economic success. Source: Ontario ministry websites http://www.ontario.ca/en/residents/index.htm  114  4.6. Governing water in 21st century Ontario service struggling to fulfill mandates and implement existing legislation and policies in the face of a disinterested executive. However, despite the interest in environment, the MOE continues to face budget reductions in 2011, challenging it to fulfill its mandate with less capacity [Interview 5]. The provincial government coordinates water governance, in part, through the Ontario Water Resources Directors Committee (the “OWRD Committee”) which is comprised of directors of water programs in the provincial government [Interview 6]. Conservation authority interviewees expressed some frustration that the OWRD Committee was not a more open process. One stated the OWRD Committee is not: . . . open and transparent. I know they meet, but I don’t know what they talk about. . . it might be empire building, but maybe it’s more about legitimacy in water management [Interview 2]. The lack of transparency and accessibility to the OWRD committee on provincial water policy may allow political interests to drive water policy. This is a concern because as one interviewee noted “[W]ithin the Canadian polity environment is a small player” [Interview 12]. That MOE has a small budget and limited leverage at the cabinet table means it can be marginalized by larger ministries; environment and water issues can be subjugated to the priorities of economic development. The OWRD Committee is a administrative-executive institution and a site of fragmentation, especially in the absence of another forum in which water policy objectives and priorities can be debated. Another interviewee noted: . . . the provincial directors committee is just provincial; it doesn’t have other significant stakeholders or players at the table. We need a forum for setting priorities [Interview 3]. That stakeholders in the provincial government meet to discuss policy objectives, in a policy area that is clearly now multi-scalar and multi-level excludes other significant governmental or non-governmental stakeholders. The Walkerton Inquiry undertook a broad and inclusive consultative process to develop its recommendations for the province. Arguably, that process, and a general trend toward adopting collaborative processes, set an expectation that Ontario water policy will be conducted transparently and that it will be accessible for all. The Inquiry acknowledged that water governance is multi-scalar, multi-level, and involves more stakeholders than just government. Conservation authority employees are keen to have a broader process to facilitate stakeholders in debate of priorities in water policy. They also 115  4.6. Governing water in 21st century Ontario noted that in the context of the source protection planning process, stakeholders have expressed an interest in expanding the scope of discussions beyond source protection to broader water policy priorities [Interview 2]. Intra-jurisdictional fragmentation (at the site of administrative-executive institutions) between MNR and MOE is a key feature of Ontario water governance that may be exacerbated by the failure of the province to develop a comprehensive water strategy. Table 4.3 shows the main divisions of each of MOE and MNR, and the branches and programs within each division that have some water function. MNR has recently re-organized its departments and transferred several functions to the Ministry of Northern Development, including forestry. This table is a snapshot of ministerial organization meant to show that water functions are diffused throughout both ministries and will thus require coordination within (between policy branches, and between policy and operations branches) and between the ministries to enable delivery of water policies and programs. Currently, MOE has three divisions and multiple branches and program areas that develop, implement, and manage water policies. MNR has its functions split between policy and operations. A provincial employee cautioned that “[I]t’s important to understand the interaction between MNR and MOE, but that’s only part of it” [Interview 12]. Indeed, as noted above at least four other provincial ministries indirectly manage water, not to mention the other eight ministries represented on the Ontario Water Resources Directors’ Committee.  116  Table 4.3: MOE and MNR water divisions, branches, and programs MOE  MOE  MOE  MNR  MNR  Drinking Water Management Division  Integrated Environmental Policy Division  Environmental Programs Division  Policy Division  Regional Operations Division  Drinking Water Programs Branch (operations and training)  Land and Water Policy Branch  Lake Simcoe project  Aboriginal Branch Integration Branch  Safe Drinking Water Branch (approvals and enforcement)  Great Lakes programs  Aboriginal Affairs  Biodiversity Branch  Source Protection Programs Branch  Water Policy  Great Lakes and Water Policy  Land and Water Services Section  117  4.6. Governing water in 21st century Ontario As noted, in Great Lakes quantity governance, MNR has been responsible for the negotiations in the Quantity Agreement. To fulfill its commitments under the Quantity Agreement, Ontario passed the omnibus Safeguarding and Sustaining Ontario’s Water Act, 2007 that made amendments to the Safe Drinking Water Act, 2002, and the Ontario Water Resources Act, and repealed of Water Transfer Control Act. All four of the Acts are the responsibility of MOE. Thus, it was MOE that drafted the amendments to give effect to the commitments made by MNR. One eNGO employee queried: Why, why, why was MNR negotiating when MOE is the one actually allocating permits? And short of these mandates, no one, you know from the perspective of looking at something as important as water and how it doesn’t obey borders, there doesn’t seem to be that kind of cross-cutting integrated management of water structure available and potentially between the MNR and MOE competing mandates. [I think these] could really be barriers to moving forward because they each have information about water and allocation and where, you know, MNR and their authority over the conservation authorities and their areas, [they are] not necessarily completely integrating th[at] data set with the data set of water taking permits. And I know that’s all changing and it’s all changing for the better as a result of all the recommendations out of the Walkerton Inquiry, but. . . [Interview 13]. The suggestion is that because MOE was not involved in negotiations, coordination was insufficient. Of course, this is an assumption since the counterfactual is impossible to test. There is an acknowledgement that things are improving, but, there is a palpable frustration that coordination is insufficient. This is, perhaps, exacerbated without an overarching water policy. An MOE interviewee spoke to the challenges of sharing data and the governance and management split between MNR and MOE in the matter of the Quantity Agreements. The interviewee stated: . . . they [MNR] were at the table negotiating the Great Lakes-St. Lawrence Sustainable Water Resources Agreement [the Quantity Agreement], in connection with other jurisdictions around the lakes. On the information side MNR monitors water as well [as MOE, they monitor], stream flow, surface water quantity. It’s a bit confusing, especially on Great Lakes-St. Lawrence Sustainable Water Resources Agreement. MNR were at the table negotiating but it ends up being MOE’s regulations that are 118  4.6. Governing water in 21st century Ontario needed, or needed to change, in order to implement [the commitments made under the agreement]. So most of it is being implemented through the permit to take water program, we’re [MOE is] making changes to how transfers of waters across Great Lakes boundaries are managed. A lot is in place already, but we’ll have to make changes to how we’ll manage regular consumptive use withdrawals. It’s been a challenge at times working with MNR because they sort of have the history and they were at the table negotiating so they understand the spirit and intent of the agreement and we’re facing the practical reality of implementing it [Interview 7]. For some observers and participants, then, the exclusion of MOE from the Quantity Agreement negotiations is a source of frustration and amounts to a serious lack of coordination. For those people, the exclusion amounts to a reactive governance practice characterized by insufficient coordination. However, to an outsider, the governance associated with the Quantity Agreement appears reasonably cooperative. Ontario has fulfilled most of its commitments made under the Quantity Agreement by implementing legislation. None of the other interview data provides a rejoinder to these interviewees on this point, but there is no reason to assume that a lead negotiating agency could not, or would not, consult implementing agencies to inform their position. Thus, in fact, this fragmentation may be functional. An additional element of intra-jurisdictional fragmentation between MNR and MOE is an apparent ‘cultural’ difference. One interviewee suggested that “MNR is the right brain and MOE is the left brain” [Interview 14]. In this view, both MNR and MOE are essential to effecting water policy, but through different institutions and using different approaches. Another interviewee articulated the difference as “MNR is a systems thinking ministry” and MOE uses a “linear planning process to regulate which makes systems thinking difficult” [Interview 19]. In this vein, another provincial employee noted a lot of other ministries OMAFRA, MNR, are more – not lobby groups – but they have more of a direct relationship with sectors and representing sectors. That difference in philosophy makes it difficult sometimes moving forward on certain things. We may identify the need take a regulatory or legal perspective on an issue, but MNR might be thinking more in terms of stakeholder relationships or whatever. So I guess I find that sort of difference challenging at times [Interview 7]. 119  4.6. Governing water in 21st century Ontario The so-called ‘cultural’ difference is tangible to water managers and can impact water management outcomes. And, these differences speak to the politics of water policy. A ministry with a close relationship to a sector may not agree at the OWRD Committee or in consultation with MOE (which might be described as a “clientless” ministry because it is the regulator) to take regulatory action. There is a territorial element to intra-jurisdictional fragmentation. Some provincial employees noted that MNR and MOE branch office territories do not overlap; nor do they fit with the watershed boundaries of the CAs. When it comes to collaborating on programs, the physical separation of MOE and MNR employees can be a challenge. One interviewee suggested this may contribute to collaboration efforts producing less than optimal outcomes: MNR are at Peterborough and we’re [MOE] in Toronto so we have lots of teleconferences. So it’s challenging to get things done, certainly challenging to do it quickly, but just challenging period to get people you need around the table and to work through issues. And it’s just, I find it cumbersome just at that practical level. Finding the time and doing a lot of stuff over email and phone, it’s not ideal to me to work through complicated issues where people have differences of opinion. I think we arrive at things in the end, but it takes a long time to get there. My sense is that at least on a few issues we’ve been forced to go with compromises that I don’t think are necessarily ideal from either MOE or MNR’s perspective. ... So I think we end up sometimes settling for compromises that aren’t really ideal for anyone that are maybe making particular rules more complex than they need to be or being too lenient one way or the other. So those practical reasons of not physically working together are also silos – they [MNR] have their own management structure they have to answer to and so do we. So we can be working at a staff level, but, it all works fine when we all agree, but when there is head butting it really puts a wrench in the system and if it does get worked out I find there’s often compromises that aren’t ideal and a lot of times it just really bogs the process down and slows us down. And that’s when I start thinking about why aren’t we rolling one or the other ministry into the other, so we can work on this together [Interview 7]. 120  4.7. Conclusions This provincial employee has been sufficiently frustrated by the coordinating challenges of MOE working with MNR that uniting the ministries seems preferable. But, the suggestion assumes that unification is achievable, and that it would be sufficient to produce more integrated decisions. There is no guarantee on either point. And, in fact, there may be value in separating functions between MNR and MOE. However, it is apparent, that for some provincial employees, coordination in Ontario water governance and management could be improved. One way to improve coordination would be to clarify the province’s water management objectives by developing an overarching, comprehensive integrated water policy for Ontario.  4.7  Conclusions  This chapter has examined key trends and reforms in water governance in Ontario over the past twenty-five years. As a means of interrogating the changing patterns and impacts of jurisdictional fragmentation, the analysis focused on four key processes and events in this time period. First, it examined the early efforts of both the federal and provincial governments to implement more integrated approaches to water management. Second, it examined multi-level governance in the Great Lakes to show that the implications of inter- and intra-jurisdictional fragmentation vary with issue and actors, and over time. Third, focusing on the provincial government, it examined the Walkerton Inquiry’s recommendations related to fragmentation and what contribution fragmentation made to the tragedy. Fourth, it considered the comprehensiveness of Ontario water policy today to consider how interand intra-jurisdictional fragmentation impact current governance patterns and practices. The federal and provincial governments, had at various times, and with variable success, attempted to adopt and implement an integrated approach to water management, sometimes called the ecosystem approach. At the same time, the federal government negotiated an update to the GLWQA with stronger protections for the Great Lakes. Ontario began implementation of the first multi-level governance initiatives under the GLWQA, the RAPs. The budget reductions in the mid-1990s, arrested much of the progress underway. The provincial government’s delegation of additional responsibilities to municipalities contributed, in part, to the Walkerton tragedy. After Walkerton, the provincial government developed new water policies to address the Walkerton Inquiry recommendations. The Inquiry encouraged Ontario to develop a comprehensive water policy, within which it could develop and 121  4.7. Conclusions implement a secure drinking water strategy. Ten years after Walkerton, Ontario does not have a comprehensive policy. Instead it has a number of individual program areas. In Ontario, intra-jurisdictional fragmentation, especially at the provincial level, has deepened with the addition of new legal and administrative-executive institutions to water governance in the absence of a comprehensive policy to link up these institutions. Developments in the governance of the Great Lakes basin and the introduction of multi-level governance in Ontario water governance show that the implications of jurisdictional fragmentation are variable over time and depending on the issue. The federal government negotiated the quality agreement for the Great Lakes and Ontario implemented its commitments through the COA. In quality management, the cooperative governance pattern of the original GLWQA has been replaced by a more conflictual pattern at both the international scale (in development and amendment of the institution between the US and Canada evidenced by stalled negotiations in 2011) and at the provincial scale (between the Canadian and Ontario governments regarding implementation) of the agreement. Even though water quantity is managed at multiple scales, including the international scale, it is governed by institutions made and implemented by the state and provincial governments. Implementation of quantity management commitments has revealed new intra-jurisdictional fragmentation as a result of a governance practice in which one ministry, MNR, negotiates the agreements and another, MOE, implements the commitments. Walkerton galvanized water policy development in Ontario, but it has not resolved fragmentation challenges. The provincial government’s major innovation of source protection planning is designed to protect quality and quantity of drinking water at a very local level. Undoubtedly, source protection is critical; however, questions remain as to how source protection fits into watershed planning and land-use planning more generally. The next chapter examines jurisdictional fragmentation in source protection planning to analyze to what extent Ontario is integrating land-use and water management.  122  Chapter 5  Examining jurisdictional fragmentation in land-use planning and water management in Southern Ontario 5.1  Introduction  This chapter analyzes jurisdictional fragmentation in Ontario’s land-use planning and water management institutions and, more particularly, in source protection planning. Source protection is a major component of the multibarrier approach the Walkerton Inquiry recommended to secure Ontario’s drinking water. Moreover, it is regarded by many in the water management community as one of the most important management techniques for improving water security. As such, it is a case study of interest beyond Ontario’s borders. This chapter roots the analysis of source protection in a review of Ontario’s land-use institutions. This is necessary because land-use institutions have great impact on water management. Water managers have long lamented their own powerlessness over forms of land use which have a detrimental impact on the quality of water bodies and availability of water resources (Moss, 2004, p. 85). Protection of source water quality works primarily by regulating land-use activities, in part, because “it is commonly accepted that you can not effectively manage water quality by looking solely at point-source discharges; you also need to consider how land use influences nonpoint runoff” (Imperial, 1999, p. 450). Recently, Ontario’s land-use framework has expanded to include growth planning legislation and placebased environmental plans. The changes have extended the purview of landuse institutions to include objectives to protect hydrological functions and 123  5.2. The purposes of planning integrity. At first, these developments suggest implementation of the long discussed (and vaunted) ecosystem approach in which land and water are integrated to meet conservation and protection objectives for the benefit of ecosystems and humans. A closer look reveals the actual integration is quite limited. In engaging with these issues, this chapter explores two questions: How do the land-use institutions developed by Ontario define, frame, and incorporate water issues, concerns and management functions? How do these land-use institutions integrate with water governance and management institutions? In answering these questions, my focus is on Southern Ontario, because it is here that development, associated with a growing population, has led to intense debates over land use and growth planning, and where water management issues have been most acute. The analysis finds both inter-, but especially, intra-jurisdictional fragmentation contribute to the continued insufficient integration of land-use planning and water management. And, it finds that one institution (Environmental Bill of Rights) exacerbates intrajurisdictional fragmentation by ensuring executive (ministerial) decisions regarding resource use are made under different statements of environmental values. The frequent implication of this is that economic development compromises water management objectives. To frame the analysis, the chapter reviews the current land-use planning framework for Southern Ontario, with particular focus on issues relevant to water management. This means the review of land-use planning institutions is selective rather than comprehensive; it includes the major statutes and policies that, together, set out the land-use planning framework. First, the chapter reviews the foundational elements of land-use planning and growth management in Ontario. Next, it reviews the place-based legislation and plans that guide environmental planning in Southern Ontario. The chapter relies on legislative analysis, government policy reports, and interviews. I interviewed twenty-one individuals engaged in Ontario water policy — provincial employees, conservation authority employees, and eNGO employees. I do not use many direct quotes from the interviews, but they were critical to structuring the analysis of key organizations and pieces of legislation.  5.2  The purposes of planning: environmental, economic, and social  In Ontario, the provincial and municipal governments share authority for land-use planning. The province sets the legislative framework within which 124  5.2. The purposes of planning municipalities prepare official plans and make local land-use decisions. Ontario’s planning framework of statutes, plans, and policies enables land-use development. Since 1993, Ontario has recognized integrating land use and watershed planning is critical to improved water management outcomes: Watershed planning is recognized by federal and provincial governments as being the most effective means of evaluating and developing water-related resource management strategies and practices. Most decisions that are made on privately owned lands, however, are made in the context of the municipal land use planning process on the basis of municipal boundaries or property ownership. It is very important, therefore, that there be adequate linkages established to incorporate water and related resource management directions into the municipal land use planning process (Ministry of Environment and Energy and Ministry of Natural Resources, 1993a). As discussed in Chapter 4, the 1993 trio of MOEE-MNR policy documents sought an overall integration of land-use and watershed planning that would “ensur[e] all water resources [in Ontario] are maintained in and enhanced to a condition that has a healthy ecosystem, adequate supply, and clean contaminant-free water” (Ministry of Environment and Energy and Ministry of Natural Resources, 1993a). In 1994, MOEE (as MOE then was) published a policy document on the ecosystem approach in land-use planning wherein it encouraged the integration of “ecosystem considerations into planning [to] help prevent development decisions from prejudicing future ecosystem and human health” (Ministry of Environment and Energy, 1994, p. 1). Integration of land-use planning and water management through the watershed (the preferred biophysical unit of the ecosystem approach in Ontario) continues to challenge Ontario policymakers. One of the reasons integration to the ecosystem approach remains challenging is that, despite new legislation and policies that better consider the environment, ultimately, environmental issues are not the priority for land-use institutions. As will be seen, the priority is to ensure economic development. Another reason is that ministries have different statements of environmental values, or may not have a statement at all. The effect is that few institutions outside policy documents promote, coordinate, or facilitate an ecosystem approach.  125  5.2. The purposes of planning  5.2.1  Purposes of the Planning Act  The Planning Act forms the foundation of the land-use planning framework in Ontario that applies to municipal land and privately-owned lands (Ministry of Municipal Affairs and Housing, 2010a). The Ministry of Municipal Affairs and Housing (“MMAH”), the lead ministry for land-use planning, defines “land use planning” broadly to mean “managing our land and resources” the main process for which is set out in the Act (Ministry of Municipal Affairs and Housing, 2010a). The Planning Act recognizes the environment in its first purpose at s. 1.1(a): “to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act.” 125 A healthy natural environment, to which water is essential, is a backdrop for “sustainable economic development”. The word sustainable is undefined. Its use to modify economic development may be understood as continued economic development, rather than an attempt to balance social and environmental concerns with economic development. In this view, the primary purpose of the Planning Act is to facilitate economic development, rather than a healthy natural environment. To the degree that good environmental management is necessary for communities to be safe and strong, and economies to be thriving and prosperous, environment is a priority for MMAH.  5.2.2  Statements of Environmental Values  Further insight into understanding MMAH’s perspective on environmental priorities is found in its Statement of Environmental Values (“SEV”), required by the Environmental Bill of Rights, 1993 (the “EBR”) (Ministry of Municipal Affairs and Housing, 2011). The purposes of the EBR are: to protect, conserve, and where reasonable, restore the integrity of the environment; to provide sustainability of the environment by the means provided in the Act; and to protect the right to a healthful environment by the means provided in the Act. The EBR does not detail how sustainability of the environment or a healthy environment might be attained, but it is reasonable to infer that an ecosystem or integrated approach to managing the environment would be necessary. This is common knowledge today and, in 1993, when the EBR was passed, MOEE and MNR were advocating an ecosystem 125  The remaining purposes of the Act are more process-oriented. They are s.1.1 (b) providing “a land use planning system led by provincial policy”; (c) integrating “matters of provincial interest into provincial and municipal planning decisions”; (d) good governance of planning processes; (e) encouraging “co-operation and co-ordination among various interest”; and (f) giving appropriate deference to municipal councils in planning.  126  5.2. The purposes of planning approach which Ontario had been engaged with in the context of the Great Lakes basin since the 1978 GLWQA (Ministry of Environment and Energy and Ministry of Natural Resources, 1993a,b,c). The hallmark of an integrated approach is that it is a “holistic approach [that] consider[s] the entire system rather than certain elements of subcomponents” (Margerum, 1999, p. 152). A key feature of successful integrated environmental management is that it is “goal-oriented” as well as “strategic, which includes focusing analysis early and biasing planning toward implementing actions” (Margerum, 1999, p. 152). The EBR does not facilitate integrated environmental management. The EBR requires fourteen of Ontario’s provincial ministries126 to prepare a statement of environmental values that is then listed on the environmental registry.127 Each of those fourteen ministries subject to the EBR has a duty: The minister shall take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry.128 A Ministry’s Statement of Environmental Values (“SEV”) must explain “how the purposes of the Act are to be applied when decisions that might significantly affect the environment are made” and “how consideration of the purposes of the Act should be integrated with other considerations.” The EBR prescribes the four-part test a minister uses to determine if a “proposal for a policy, Act or regulation might have a significant effect on the environment” (s.14). The test considers the scope and nature of potential mitigation or prevention efforts; the geographic scope of any harm; the nature of the interests in the decision, and any other considerations the Minister considers relevant. The inclusion of “nature of the interests” in the decision and “any other considerations” has the potential to politicize the determination of an environmental harm. If, after applying the test, the Minister finds the proposal might have a “significant affect on the environment” then the ministry must use the SEV in making the decision. 126  The fourteen are: Management Board Secretariat, Ministry of Agriculture, Food and Rural Affairs, Ministry of Consumer and Commercial Relations, Ministry of Culture, Ministry of Economic Development and Trade, Ministry of Energy Science and Technology, Ministry of Health and Long-Term Care, Ministry of Labour, Ministry of Municipal Affairs and Housing, Ministry of Natural Resources, Ministry of Northern Development and Mines, Ministry of Tourism and Recreation, Ministry of Transportation, Ministry of the Environment. 127 EBR, s. 7. 128 EBR, s.11.  127  5.2. The purposes of planning The SEVs were intended as “change agents within ministries. . . [to] drive decision-making toward the greener part of the spectrum” (ECO, 2006, p. 189). However, a dozen years after their introduction, the Environmental Commissioner of Ontario (“ECO”) reported “that the SEVs have had little impact on decision-making in the ministries” (ECO, 2006, p. 189). A special report by the ECO on SEVs in 2005 prompted revision of some SEVs, but many SEVs: still amount to little more than a verbatim recital of EBR purposes and high-level environmental principles (i.e. ecosystem approach, precautionary principle, etc.), with little or no operational direction on how these purposes and principles are to be put into practice during decision-making in relation to Acts, regulations, policies, or instruments (McClenaghan and Lindgren, 2010). Two key ministries engaged in environmental management do just this. In the paragraph in the SEV describing how considerations of the EBR purposes should be integrated with other considerations each ministry states it will integrate “social, economic and other considerations” into ministerial decisions, parroting the language of section 7(b) of the EBR: The Ministry of the Environment will take into account social, economic and other considerations; these will be integrated with the purposes of the EBR when decisions that might significantly affect the environment need to be made (Ministry of the Environment, 2011, p. 3). The Ministry of Natural Resources will take into account social, economic and other considerations; these will be integrated with the purposes of the EBR when decisions that might significantly affect the environment need to be made (Ministry of Natural Resources, 2011b, p. 3-4). The language in the SEV of MMAH, the key land use ministry, is unique, perhaps presenting a different interpretation of the EBR’s mandate: The Ministry of Municipal Affairs and Housing will take into account social, environmental, economic and other considerations; these will be integrated with the purposes of the EBR when decisions that might significantly affect the environment need to be made (Ministry of Municipal Affairs and Housing, 2011, p. 3). 128  5.2. The purposes of planning The MMAH integration statement might be interpreted as having separated environmental considerations from the purposes of the EBR. Whether MMAH’s unique treatment of “environmental considerations” reflects a different perspective from the other two ministries is unclear. Moreover, since critics of the EBR and SEVs suggest ministry compliance with SEVs is minimal, this may be moot (McClenaghan and Lindgren, 2010). However, SEVs may still provide useful insight into ministry perspectives on environmental priorities. I argued earlier that in the Planning Act, management of which is a key MMAH responsibility, environment is a priority secondary to economy. The MMAH’s SEV includes a commitment “to applying the purposes of the EBR when decisions that might significantly affect the environment need to be made in the Ministry, and as it develops acts, regulations and policies” (Ministry of Municipal Affairs and Housing, 2011, p. 2). However, MMAH’s SEV vision statement makes no mention of environment: “[S]afe and strong communities with abundant greenspace, economies that are thriving and prosperous, and a range of housing choices” (Ministry of Municipal Affairs and Housing, 2011, p. 2). In contrast, the SEVs of MNR and MOE included vision statements with broad reference to environment. For example, in its SEV, MNR: envisions a healthy environment that is naturally diverse and supports a high quality of life for the people of Ontario through sustainable development. The Ministry’s mission is to manage Ontario’s natural resources in an ecologically sustainable way to ensure that they are available for the enjoyment and use of future generations. The Ministry is committed to the conservation of biodiversity and the use of natural resources in a sustainable manner (Ministry of Natural Resources, 2011b, p. 2). MOE envisions “an Ontario with clean and safe air, land and water that contributes to healthy communities, ecological protection, and environmentally sustainable development for present and future generations” (Ministry of the Environment, 2011, p. 2). MOE’s vision of Ontario may or may not be the same as MNR’s “healthy environment.” Clearly, within their individual SEVs, ministries are expressing unique ministry values. This supports the statements of several interviewees that the ministries have distinct personalities, and that for MMAH, environment is less a priority than it is for either of MNR or MOE. That ministries have different SEVs means they are not guided by the same vision when it comes to making decisions that may involve environ129  5.2. The purposes of planning mental harms. This matters, because if more than one ministry is managing an issue they may bring different environmental visions to an issue creating a site of intra-jurisdictional fragmentation. In turn, this inhibits integration and the ability to fulfill the EBR purposes. One interviewee stated it was “mind boggling” that ministries have independent SEVs and that some ministries are exempt from the EBR: [W]hy don’t we have a provincial statement of environmental values? Which might well include a whole bunch of things that say, um, this is how we’re going to care and ensure water is sort of acknowledged and recognized [. . . ] And then every ministry has to figure out how they make sure they do that within their mandates. And then you know, if there’s this sort of the way the law has been evolving is that the decision makers have to follow the EBR, which anyone who does water or land-use planning would fall under there, if there was, um, a clear statement from an overarching perspective that then the ministries had to ensure their decision-making lines up with that would be the policy. And that would be a mechanism to make it a legally binding decision-making process. Which for better or for worse, that’s what I work in and it always seems to be the best solution, probably isn’t, but, that one really frustrates me. Why does the Ministry of Municipal Affairs and Housing feel differently about the environment than MNR? Presumably there should be the [provincial] statement of environmental values and they [the values] should be determined with the public [Interview 13]. Much like the absence of a comprehensive water policy leaves gaps, the absence of a provincial SEV leaves gaps. It reinforces intra-jurisdictional fragmentation between ministries and encourages reactive governance patterns. If the province really wanted to achieve the purposes of the EBR it would produce a provincial SEV and require all ministries to conform to it. In its SEV, MMAH commits to supporting other ministries’ initiatives including growth management and source water protection (Ministry of Municipal Affairs and Housing, 2011, p.3). The lead ministry of growth management is the Ministry of Infrastructure (“MOI”) which is not required under the EBR to produce a SEV. MOI may not directly manage land or water, but indirectly it has an enormous impact, especially through its growth management plan for southern Ontario (the Greater Golden Horseshoe Growth 130  5.3. The land use framework for Southern Ontario Plan, 2006). But, without a SEV, MOI is not obligated to consider the environmental harm of its decisions. Source water protection is led by MOE, a ministry that has committed to adopt the “ecosystem approach to environmental protection and resource management” and to consider cumulative effects (Ministry of the Environment, 2011, p. 2). MMAH has a role in supporting each of these initiatives, and according to the provincial rhetoric, growth management and source protection initiatives should integrate with each other and other ministries. To effectively integrate land-use planning and water management at the provincial level in Ontario, at least six ministries — MOE, MOI, MMAH, MNR, OMAFRA, and MOT — need to coordinate (see table 4.2). Differing mandates and differing environmental values, in the absence of a comprehensive provincial policy reinforces intra-jurisdictional fragmentation. In addition, inter-jurisdictional fragmentation characterizes the multi-level governance reality of land-use planning and water management in Ontario that includes conservation authorities, municipalities, as well First Nations and the federal government, and in some cases, non state actors (e.g. in the Great Lakes RAPs on AOCs and in source protection planning).  5.3  Land-use, growth management, and place-based environmental planning  The Planning Act anchors Ontario’s land-use planning framework. It is complemented by the Provincial Policy Statement (the “PPS”) which reflects current provincial interests; growth management statutes and plans; and placebased environmental statutes and plans through which the province specifies regional environmental planning objectives. The objectives of the provincial framework are implemented by municipalities through official plans, which detail local land-use planning. This section examines the water management objectives and provisions of these institutions — land-use planning (5.3.1), growth management (5.3.2), and place-based environmental planning (5.3.3) — with reference to how they interact with each other and with municipal official plans, the instrument through which planning takes effect on the landscape. Table 5.1 shows the major legal institutions and which level (or ministry) of government is responsible.  131  5.3. The land use framework for Southern Ontario  Table 5.1: Provincial and municipal land-use institutions  Provincial legal institutions  Ministry responsible for implementation Municipal institution  5.3.1  Land-use planning  Growth management  Place-based planning  Planning Act  Places to Grow Act  Niagara Escarpment; Oak Ridges;  PPS  GGH Growth Plan  Greenbelt; Lake Simcoe  MMAH  MOI  various  official plan  official plan  official plan  The land-use planning framework and water  Planning Act and Provincial Policy Statement The Planning Act describes three matters of provincial interest that comprise water management — hydrologic functions, water as a resource, and water supply for human settlements. More particularly, the provincial interests in water are: “the protection of ecological systems, including natural areas, features and functions” (ss.2(a)); “the conservation and management of natural resources and the mineral resource base” (ss.2(c)); and, “the supply, efficient use and conservation of energy and water” (ss.2(e)). The Planning Act does not define either of “ecological systems” or “natural resources” but, clearly, water is a central component of ecological systems and a key natural resource. In other words, the provincial interests expressed here might be understood to include a general interest in protecting water and hydrologic functions. To the extent that water is considered essential to a healthy natural environment and, therefore, sustainable economic development129 its protection is implicit in all of the provincial interests. However, given that the MMAH’s SEV does not adopt integrated environmental management, it is possible that the explicit consideration of water in the Planning Act serves to circumscribe its protection. By considering water explicitly, if nar129  Section 1.1(a) of the Planning Act, purposes.  132  5.3. The land use framework for Southern Ontario rowly, the Planning Act is not interpreted to apply to water beyond those provisions. Currently, the Planning Act requires that decisions, made by planning authorities (including municipalities), affecting planning matters “shall be consistent with” policy statements issued under the Act.130 Prior to amendments to the Planning Act, planning decisions needed only to “have regard to” provincial policies. In the result, the province had less “control over decisions”(ECO, 2011, p. 3) and developers had “free[r] rein in land-use” (Macdonald and Keil, 2012, p. 8). Specifically, the ECO stated the lower standard of “have regard to” meant municipalities and the Ontario Municipal Board applied the PPS “in an inconsistent manner” (ECO, 2003, p. 133).131 The higher standard of consistency (“shall be consistent with”) was intended to produce more standardized application of the PPS in planning decisions, and better implementation of provincial interests (ECO, 2011, p. 4). The current PPS132 sets “policy direction on matters of provincial interest related to land use planning and development. . . [and] sets the policy foundation for regulating the development and use of land.” 133 The PPS policies are focused on three objectives: building strong communities; wise use and management of resources; and, protecting public health and safety. Specific water-related policies in the PPS include “sewage and water” and “water as a resource”. To advance the “wise use and management” of water the PPS directs planning authorities to “protect, improve or restore the quality and quantity of water134 by” undertaking an enumerated list of seven actions.135 The enumerated list includes: using the watershed as the ecologically meaningful scale for planning and identifying particular natural features that are necessary for the “ecological and hydrological integrity of the watershed.” As well, development and site alteration are to be restricted in order to protect municipal drinking water supplies. Subsection 2.2.2 builds on 2.2.1(d) to restrict development and site alteration to protect sensitive surface and groundwater features such that these features and their related 130  Planning Act, s.3(5). The OMB had a greater role at the time because the Planning Act had time frames that resulted in more appeals to the OMB (cf. Macdonald and Keil, 2012). 132 The current PPS, made in 2005, is now under review as required by the Planning Act s.3(10). 133 PPS, p.1. 134 In the PPS, quality and quantity of water “is measured by indicators such as minimum base flow, depth to water table, aquifer pressure, oxygen levels, suspended solids, temperature, bacteria, nutrients and hazardous contaminants, and hydrologic regime” (PPS 2005, s.6). 135 PPS, s.2.2.1. 131  133  5.3. The land use framework for Southern Ontario hydrological functions will be protected, improved or restored. However, the PPS’s narrow definition of development excludes infrastructure activities authorized by environmental assessment (including transportation corridors), works subject to the Drainage Act, and some subsurface mining. Thus, protection of quality and quantity of water is limited by infrastructure needs, drainage, and aggregates extraction. This exclusion is not surprising given that infrastructure is essential for economic development which, as noted above, is the main purpose of the Planning Act. The Municipal Act, 2001 sets out the basic structure of Ontario municipalities,136 their powers to regulate, and responsibilities for service provision. The purposes of the Act are to create local governments that are “responsible and accountable. . . with respect to matters within their jurisdiction” and to give each appropriate “powers and duties under this Act and many other Acts” in order to provide “good government” (Municipal Act, s.2). In Ontario, there are three tiers of municipalities: lower-tier, upper-tier, and single tier. Lower-tier municipalities tend to be small or component municipalities in a larger region. Upper-tier municipalities are typically regional municipalities that include two or more lower-tier municipalities.137 Single tiers are effectively non-regional upper-tier municipalities (e.g. Ottawa and Toronto). All municipalities are required to prepare official plans pursuant to the Planning Act, and in accordance with the provincial interests as detailed in various provincial statutes and plans. Official plans must include “goals, objectives and policies established primarily to manage and direct physical change and the effects on the social, economic and natural environment of the municipality” and any other prescribed matters. 138 Municipal official plans “shall be consistent with” the PPS. The PPS suggests municipalities through their official plans ought to “coordinate cross-boundary matters to complement the actions of other planning authorities and promote mutually beneficial solutions.” 139 But, the PPS does not indicate how municipalities might undertake cross-boundary coordination. One way might be through watershed unit planning, which the PPS specifies as the “ecological meaningful scale for planning,” but only in reference to water quality and quantity planning. The watershed unit is not the suggested unit for planning for other 136  Except the City of Toronto, which has its own statute: City of Toronto Act, 2006, S.O. 2006, c.11, Schedule A. 137 The Act sets out the broad authorities of both tiers and the management of conflicts between them in s.11. 138 Planning Act, s.16(1). 139 PPS, s. 4.5.  134  5.3. The land use framework for Southern Ontario objectives in the PPS, leaving some ambiguity regarding the utility of the watershed unit. If the watershed unit is to be used in all planning, then, conservation authorities must be engaged since they are chiefly responsible for watershed planning in Ontario. The PPS makes no specific mention of conservation authorities. However, interviewees advise that in 1995 CAs were delegated provincial responsibility for input and review of official plans regarding natural hazards policy of the PPS (Grand River Conservation Authority, p. 11). Prioritizing certain land uses Laws outside of the planning framework effect land-use and water management. Two statutes with significant affect are the Aggregate Resources Act 140 , administered by MNR, and the Drainage Act, administered by OMAFRA. Both statutes show the tensions between economic development and environmental conservation because there is little middle ground. Aggregates141 are an essential raw material for infrastructure development: they are the raw building materials of roads. The Act’s purpose is to manage the province’s aggregate resources while minimizing adverse impacts on the environment. This is no small task, since aggregate extraction has a substantial impact on the environment: [A]ggregate operations remove virtually all vegetation, topsoil and subsoil to reach the sand, gravel or bedrock beneath [and] [b]y necessity, extraction also removes all natural habitat, disrupts pre-existing stream flows, changes final grades on the land, and alters drainage patterns (ECO, 2011, p. 32). Aggregate extraction necessarily degrades hydrogeologic and biogeographical environments. According to the Royal Commission on the Future of the Toronto Waterfront, [R]emoving aggregate from the Niagara Escarpment threatens its integrity as a landform and its natural habitats, while doing so in the moraine interferes with its hydrogeological functions as an aquifer and the source of many rivers (Crombie, 1992, p. 25). Removing aggregate is not a benign activity: it will compromise hydrogeological functions. In some cases this may be a harm that is a justified tradeoff, in other cases it may cause extensive damage and not be justifiable. 140  R.S.O. 1990, C. A.8. Aggregates are defined in the Act at s.1 to mean “gravel, sand, clay, earth, shale, stone, limestone, dolostone, sandstone, marble, granite, rock or other prescribed material.” 141  135  5.3. The land use framework for Southern Ontario The PPS facilitates the goals of the Aggregate Resources Act by requiring municipalities to permit aggregate extraction regardless of need.142 Some have interpreted this as essentially granting advanced approval to extraction applications, so infrequently are they refused (ECO, 2009, p. 21). At the same time, the PPS (s.2.2.1(e)) requires planning authorities (including municipalities) to maintain linkages among related hydrological functions and to develop watershed plans as directed by the growth management plans (which will be discussed below). Here, the PPS directives are clearly in conflict: municipalities cannot prohibit aggregate extraction, but it has an extensive impact on land and water features thereby breaking linkages protected in watershed plans. And, all of this is complicated by a lack of data regarding groundwater locations and vulnerability [Interview 33]. When citizens expressed discontent, through application to the EBR, with the seeming prioritization of aggregate extraction over source water protection values, the ECO recommended the province address the issue (ECO, 2009, p. 21). With the conflict still unresolved, the ECO recently remarked these “conflicting priorities in provincial policy” mean determinations regarding aggregate sites (new and existing) are among “the most difficult and controversial land use decisions being made in Ontario today” (ECO, 2011, p. 32). The failure to resolve the aggregate issue reflects an ambiguity in environmental values in the province of Ontario in which economic priorities may subjugate environmental protection. Indeed, the intra-jurisdictional fragmentation created by competing values is insidious and the foundation of challenges to integrating land use and water management. The Drainage Act is the second major piece of land-related legislation that does not fall directly within the planning framework, yet is relevant to water management. This Act permits the construction, improvement, and maintenance of drainage works to manipulate the level of the water table, effectively “draining” wetlands in some cases. Although the PPS protects significant wetlands from development and site alteration there are important limits to this protection.143 First, significant wetlands, as defined by the PPS, are only significant if they have been identified as provincially significant by MNR.144 Second, the definition of development in the PPS does not 142  PPS, s.2.5. PPS, s. 2.1. 144 The vast majority of Ontario’s wetlands, most of which are found in northern Ontario (and are not subject to the PPS) have not been evaluated. MNR estimates that about 50% of the remaining (not drained) wetlands in southern Ontario have been evaluated and of those (as of March 2009) nearly 60% were identified as provincially significant wetlands. Wetland losses and on-going development pressures are greatest in the Mixedwood Plains 143  136  5.3. The land use framework for Southern Ontario include infrastructure (which includes transportation corridors) authorized under an environmental assessment process or works subject to the Drainage Act. Therefore, there is no protection for wetlands, significant or otherwise, from development of infrastructure (including roads). Several interviewees noted the incommensurability of the Drainage Act with 21st century water management practices. One eNGO interviewee stated: the ancient Drainage Act. . . [is] impacting water. . . because it’s really based back on our old mining laws and drainage laws about a different time when we needed to divert water and create drainage in order to facilitate agriculture and development of the nation. That’s impacting water in a way that people just probably don’t think about except when these big projects come up and we shake our heads and wonder why it’s exempted from all these other pieces of legislation [Interview 13]. The continued existence of the statute frustrates the protection of ecosystem features. According to a provincial employee: “the Drainage Act defeats wetlands policy” [Interview 9]. Another eNGO interviewee stated that in addition to the damage done to wetlands, the Drainage Act does extensive damage upstream [Interview 14]. Moreover, that interviewee expressed frustration that the Drainage Act undermines the PPS (its protection of wetlands) and the Conservation Authorities Act. This interviewee deplored the province’s environmental values and argued Ontario has a grave problem in protecting the natural environment that goes beyond fragmentation: “if it were just fragmentation we would issue a memo for people to talk to each other. But we need a new mandate on sustainable ecosystems” [Interview 14]. This aligns with the statement of a provincial employee that suggested rather than just a water strategy, Ontario ought to create an overarching ecosystem management strategy [Interview 8]. Statements of environmental values, approaches to decision-making, and historical legislation are critical sources of fragmentation. Currently statutes, policies, and ministries work at cross purposes in the absence of a comprehensive vision for water, and for ecosystems. One provincial employee described the current framework as inducing “death by one thousand cuts”, as slowly inexorable cumulative damage is done to ecosystems [Interview 10]. The priority for economic development — whether by aggregate extraction, wetEcozone — the isthmus of land bounded by Georgian Bay in the north, Lake Huron in the west, Lake Erie in the south, and Lake Ontario-St.Lawrence river in the east — essentially the Greater Golden Horseshoe (pers. comm.).  137  lands drainage, or infrastructure installation — runs throughout the land-use planning institutions.  5.3.2  The growth management framework  In 2003, the Ontario government began to develop a growth management framework for most of Southern Ontario, a region called the Greater Golden Horseshoe (“GGH”). As shown in Figure 5.1, the GGH extends from the southwest at the Niagara Peninsula in an arc around Lake Ontario to Peterborough in the east.145 The Ministry of Infrastructure (“MOI”) created a Growth Secretariat specifically to undertake growth planning (especially to address urban sprawl) in Southern Ontario (Pond, 2009). The legislative foundation for growth planning is the Places to Grow Act, 2005 (“PtG”),146 which has been described as Ontario’s “master plan for compact regional growth” (Pond, 2009, p. 413). The preamble of PtG sets out the Government of Ontario’s growth planning as essential “to accommodate future population growth, support economic prosperity and achieve a high quality of life for all Ontarians.” Further statements in the PtG preamble confirm the government’s objectives for growth planning, that like land-use planning, prioritizes economic interests over environmental interests.147 As noted above, the EBR does not obligate the ministry responsible for PtG, MOI, to have a statement of environmental values. Therefore, MOI need not integrate social, economic, and other considerations into decisions that might significantly affect the environment. The Greater Golden Horseshoe Growth Plan, 2006148 (the “GGH Growth 145  O.Reg. 416/05, Growth Plan Areas, s.2 states that the Greater Golden Horseshoe is comprised of the following geographic areas (see Territorial Division Act, 2002): Brant, Dufferin, Durham, Haldimand, Halton, Hamilton, Kawartha Lakes, Niagara, Northumberland, Peel, Peterborough, Simcoe, Toronto, Waterloo, Wellington, and York. 146 S.O. 2005, C. 13. 147 The PtG preamble (excerpted): “The Government of Ontario recognizes that: in order to accommodate future population growth, support economic prosperity and achieve a high quality of life for all Ontarians, planning must occur in a rational and strategic way; building complete and strong communities, making efficient use of existing infrastructure and preserving natural and agricultural resources will contribute to maximizing the benefits, and minimizing the costs, of growth; identifying where and how growth should occur will support improved global competitiveness, sustain the natural environment and provide clarity for the purpose of determining priority of infrastructure investments; an integrated and co-ordinated approach to making decisions about growth across all levels of government will contribute to maximizing the value of public investments.” 148 On October 28, 2010, the Ontario Government released the Proposed Amendment 1 (2010) to the Growth Plan for the Greater Golden Horseshoe, 2006, for public comment until January 31, 2011. The Proposed Amendment 1 (2010) is meant to incorporate into  138  5.3. The land use framework for Southern Ontario  Figure 5.1: The Greater Golden Horseshoe  SCHEDULE 1  Greater Golden Horseshoe Growth Plan Area GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE 2006  Note: The information displayed on this map is not to scale, does not accurately reflect approved land-use and planning boundaries, and may be out of date. For more information on precise boundaries, the appropriate municipality should be consulted. For more information on Greenbelt Area boundaries, the Greenbelt Plan 2005 should be consulted. The Province of Ontario assumes no responsibility or liability for any consequences of any use made of this map.  51  Places to Grow – Better Choices. Brighter Future.  139 Source: c Queen’s Printer for Ontario, 2006.Places to Grow Plan for the Greater Golden Horseshoe, 2006. Reproduced with permission.  5.3. The land use framework for Southern Ontario Plan”), made under the PtG, is a twenty-five year plan for implementation of province’s “vision for building stronger, prosperous communities by better managing growth in this region.” 149 . A key goal of the GGH Growth Plan is to “create a clearer environment for investment decisions” that “will help secure the future prosperity of the GGH.” 150 To create a clearer “investment environment”, the Plan guides decision-making on issues including “transportation, infrastructure planning, land-use planning, urban form, housing, natural heritage and resource protection.” 151 In the GGH Growth Plan, six principles guide decision-making on land development, resource management, and investment of public money. Five of the six principles concern managing growth efficiently to support a strong and competitive economy and complete communities. One principle focuses on environmental matters to “protect, conserve, enhance and wisely use the valuable natural resources of land, air and water for current and future generations.” 152 These principles amount to “an alternative approach to managing population and economic growth based on the ideas of smart growth and sustainability” (Macdonald and Keil, 2012, p. 9). The GGH Growth Plan aims to build complete communities (urban or rural) through “intensification153 of the existing built-up area, focused on urban growth centres, transit station areas, corridors, brownfield sites and greyfields.” 154 The southern Ontario growth management framework connects to the planning framework through the GGH Growth Plan which guides regional growth policy and sets municipal intensification targets.155 In turn, municipal official plans must conform with the GGH Growth Plan and detail strategies to meet the targets, and set out urban growth boundaries, major transit station areas, and intensification corridors.156 In an example of reactive governance patterns emanating from interthe GGH Growth Plan the Simcoe Area Strategic Vision for Growth developed in 2009. See Ministry of Infrastructure (2011). In 2011 the province issued a growth plan for northern Ontario. 149 GGH Growth Plan, p. 6 150 Ibid. 151 Ibid. 152 Ibid., p. 10. 153 Defined in the PPS at p. 32 “means the development of a property, site or area at a higher density than currently exist through: a) redevelopment, including the reuse of brownfield sites; b) the development of vacant and/or underutilized lots within previously developed areas; c) infill development; and d) the expansion or conversion of existing buildings.” 154 Ibid., p. 12. 155 Ibid., p. 7. 156 Ibid., p. 15.  140  5.3. The land use framework for Southern Ontario jurisdictional fragmentation, in some cases, the GGH Growth Plan intensification targets failed to appreciate the natural limits of certain communities. As one interviewee explained, the Growth Secretariat, in developing the GGH Growth Plan: just went ahead and designated growth targets for municipalities throughout the GGH region. And, there wasn’t an assessment of whether there was enough carrying capacity there in terms of water supply or ability to absorb wastewater effluent in receiving water bodies [Interview 15]. This was particularly the case in communities in Guelph and the Waterloo Region that are reliant on groundwater for drinking water supplies [Interview 15]. In the GGH Growth Plan, water management contemplates sustainable water and wastewater services as well as conservation of water. The GGH Growth Plan enumerates eight policies regarding water and wastewater systems directing municipal policy development, and acknowledges that watershed planning should be done in conjunction with conservation authorities. But, one eNGO employee has described the integration of water management into the GGH Growth Plan as “tokenistic” [Interview 15]. The GGH Growth Plan encourages watershed plans be used to guide development decisions, and requires municipal official plans include water conservation strategies to address demand management, efficiency, and recycling of water.157 Policy directives regarding water as a resource in the GGH are found in the place-based environmental planning statutes and plans.  5.3.3  Place-based environmental planning in the Greater Golden Horseshoe  This section introduces the four place-based environmental planning statutes that complement the GGH Growth Plan. The GGH Growth Plan applies to urbanized portions of the GGH. The place-based statutes — the Niagara Escarpment Planning and Development Act 158 , the Oak Ridges Moraine Conservation Act,159 the Greenbelt Act,160 and the Lake Simcoe Protection Act 161 — and their plans specify land use for the non-urbanized portions 157  Ibid., p. 32. R.S.O. 1990, C.N.2. 159 S.O. 2001, C. 31. 160 S.O. 2005, C. 1. 161 S.O. 2008, C. 23 158  141  5.3. The land use framework for Southern Ontario  Table 5.2: Place-based plans and ministries Place-based Plan  Ministry Responsible  Niagara  MNR  Oak Ridges  MMAH  Greenbelt  MMAH  Lake Simcoe  MOE  of the Greater Golden Horseshoe. The four plans focus on conservation, but they have different specific objectives and are administered by different ministries (see Table 5.2). The enabling statute of each plan specifies that decisions made under other provincial laws,162 or by an administrative decision-maker (including municipal councils and the OMB) “shall conform with” the provincial plan.163 Municipal official plans must also conform to each of the place-based plans.164 In this way, the plans are somewhat connected. The Greenbelt Plan gathers together the lands of the Niagara and Oak Ridges Moraine. The Lake Simcoe Protection Plan ties into the Greenbelt Plan and the GGH Growth Plan. Each of the place-based acts and plans articulates unique water management objectives. This section introduces the plans and their water objectives. Chronologically, the first of these acts, the Niagara Escarpment Planning and Development Act, (the “NEPDA”) was passed in 1973. The Niagara Escarpment Commission, overseen by MNR, administers the Niagara Escarpment Plan (the “NEP”) area which stretches along the Niagara Escarpment from the Bruce Peninsula in the northwest to the Niagara River in the southeast (see Figure 5.2) (Ministry of Municipal Affairs and Housing, 2009; Ministry of Natural Resources, 2011a). The Niagara Escarpment hosts outdoor recreationalists, the headwaters of several key regional rivers, and several aggregate extraction operations. The NEPDA and NEP aim to balance competing imperatives to develop and protect the Escarpment (Niagara Escarpment Commission, 2011b). 162  Ontario Planning and Development Act, 1994, Planning Act, or Condominium Act, 1998. 163 The relevant sections are as follows: Greenbelt Act; s.7(1); Oak Ridges Act, s. 7(1) is similar. The Niagara Escarpment Protection and Development Act is administered differently and the conformity section (s.13) reflects that. 164 The relevant sections are as follows: Greenbelt Act s.9; Oak Ridges Act s.9; Niagara Escarpment Protection and Development Act s.15  142  5.3. The land use framework for Southern Ontario Now a UNESCO World Biosphere Reserve, the Niagara Escarpment is “a cornerstone of Ontario’s Greenbelt” (Niagara Escarpment Commission, 2011a). Specifically, the Act’s purpose is “to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.” 165 Water is not included in the main mandate of the Act, but one NEP objective is “to maintain and enhance the quality and character of natural streams and water supplies.” 166 This provision gives minimal guidance for water management and does not include restoration for already degraded streams and supplies. The Oak Ridges Moraine Conservation Act (the “Oak Ridges Act”) and its Plan (a regulation under the Act), approved in 2002, covers an area that extends from the Niagara Escarpment, at Caledon, east to the Trent River. Essentially, the Oak Ridges Moraine Conservation Plan (“ORMCP”) area forms a band along the northern edge of the Greater Toronto Area (see Figure 5.2) (Whitelaw and Eagles, 2007, p. 676). Much like the Niagara Escarpment, the Moraine is an “environmentally sensitive, geological landform in south central Ontario” that contains considerable aggregate resources (Ministry of Municipal Affairs and Housing, 2009). MMAH administers the ORMCP which seeks to protect, conserve, and restore the ecology and hydrology of the Moraine. In the nearly thirty years since the NEP, the specificity of water objectives has increased. The ORMCP objectives reflect greater attention to water than the NEP. The Oak Ridges Act articulates three objectives for the ORMCP which connect land use and water management. It seeks to protect ecological and hydrological integrity of the area; to ensure resource uses maintain, improve or restore the ecological and hydrological functions of the area; and maintain elements that support the ecological and hydrological functions of the area.167 The ORMCP confirms a commitment to an integrated approach to water management. Significantly, the objectives of the Plan include improvement and restoration, not merely maintenance of hydrological integrity.  165  NEPDA, s.2. NEPDA, s.8(b). 167 Oak Ridges Act, s.4. 166  143  7 12  11  BARRIE  134  Lake Simcoe  26  PETERBOROUGH  35  Lake Ontario CA N A D A  7  KAWARTHA LAKES  GREY  UN ITE D S TA TES  PETERBOROUGH  7  SIMCOE 400  7&  48  7A  11 5  12  °  89  6  NORTHUMBERLAND  DURHAM 35 &  89  115  DUFFERIN  Lake Huron  YORK 400  401  9  404  400  7  DO N VA  PEEL  LLEY  N  409  7  WELLINGTON  1 40  427  21  ALLE  6 TORONTO 41 0  Georgian Bay  greenbelt  Georgian Bay  PLAN 2005  Figure 5.2: The Greenbelt Plan, including the lands of the Oak Ridges Moraine and the Niagara Escarpment  3 40  INER GARD  7  Lake Ontario  LEGEND Greenbelt Area*  26  Protected Countryside GUELPH  C 6  GREY  A AN  Towns and Villages Hamlets  . A. U.S  Niagara Escarpment Plan Area Oak Ridges Moraine Area  10  Settlement Areas Outside the Greenbelt 6  River Valley Connections (outside the Greenbelt)  407  WATERLOO  40 3  Upper-tier Municipal Boundaries Single-tier Municipal Boundaries  8  Major Roads  5  LI NC 24  OLN  M. AL  EXAN DE  ELIZ AB  Projection: UTM zone17 NAD83 © Queen’ s Printer for Ontario, February 28, 2005 ETH  Produced and data sources by the Ministry of Agriculture and Food, Ministry of Municipal Affairs and Housing and Ministry of Natural Resources  R  Additional Data Sources: DMTI Spatial Inc.  89 403  405  DUFFERIN  BRANTFORD  89  420  NIAGARA  Notes: Settlement boundaries reflect current municipal Official Plans. For precise boundaries and locations of Settlement Areas (Towns/Villages and Hamlets) the appropriate municipalities should be consulted. The information displayed on this map has been compiled from various sources. While every effort has been made to accurately depict the information, this map should not be relied on as being a precise indicator of locations of features or roads nor as a guide to navigation. * Ontario Regulation 59/05  406  BRANT COUNTY  0  5  10  20  30  HALDIMAND COUNTY 6  144  QUE EN  HAMILTON  Kilometres  NORFOLK COUNTY  Source: c Queen’s Printer for Ontario, 2005.Greenbelt Plan Area, 2005. Reproduced with permission.  40  °  Schedule 1:  Water  26  Greenbelt Plan Area  6  HALTON  DA  5.3. The land use framework for Southern Ontario The Greenbelt Act, 2005 added about one million acres of “environmentally sensitive and fertile agricultural land” to the lands already protected in southern Ontario under the NEP and the ORMCP (see Figure 5.2) (Pond, 2009, p. 415). MMAH administers the Greenbelt Plan, which aims to protect the agricultural land base and the ecological features and functions of the land area and “identif[y] where urbanization should not occur.” 168 The approximately 1.8 million acres protected by the Greenbelt “form the key building blocks of the GGH’s natural systems.” 169 The Greenbelt Act and Plan aim to improve connectivity throughout the Greenbelt of the GGH, to control sprawl and maintain agricultural and ecological functions the area, thereby linking the policy objectives of the Greenbelt Plan to the GGH Growth Plan. Between the Greenbelt and the GGH Growth Plan’s urbanized area is a “whitebelt”, a portion of land reserved for future urban expansion (Macdonald and Keil, 2012, p. 15).170 The Greenbelt Plan’s water management objectives are different than those of the ORMCP, but trace the language from the Oak Ridges Moraine Conservation Act, seeking to “maintain, restore and improve” the area’s “hydrological functions.” To improve connectivity in the Greenbelt, the plan seeks to protect and restore the linkages between the Oak Ridges Moraine and the Niagara Escarpment, Lake Ontario, Lake Simcoe, and the “broader natural systems of southern Ontario.” 171 The fourth place-based Act, and its Plan, carve out a unique management framework for the Lake Simcoe watershed (see Figure 5.2).172 The Plan and Act propose to protect, improve or restore the ecological health of the Lake Simcoe watershed “including, (i) water quality, (ii) hydrology, (iii) key natural heritage features and their functions, and (iv) key hydrologic features and their functions.” 173 Of the four place-based plans, the Lake Simcoe 168  Greenbelt Plan, p.3. GGH Growth Plan, p. 9. 170 A risk of greenbelts, generally, is that they might be “leap-frogged” and displace development (and sprawl) outside the greenbelt (Carter-Whitney and Esakin, 2010, p. 86). 171 Greenbelt Plan, p. 5. 172 The Lake Simcoe Protection Plan makes reference to the federal government’s presence in the Lake Simcoe watershed, through its existing departments. In 2008, the federal government created “a $30 million, five-year Lake Simcoe Clean-Up Fund” to provide “financial and technical support to implement priority projects in the watershed” (Environment Canada, 2010b, p. 3). Several interviewees commented on the federal government’s significant engagement in Lake Simcoe, a lake with no transboundary features and no obvious federal connection, and especially as compared with the federal government’s lack of engagement in the Great Lakes, and hypothesized that this peculiar situation might be attributable to the political stripes of the constituencies in the Simcoe watershed. 173 Lake Simcoe Protection Act, s.4. 169  145  Protection Plan, not surprisingly, has the most explicit water objectives. Also, since MOE administers the Plan, it specifically adopts the ecosystem approach and a sub-watershed approach.174 Over time Ontario’s environmental plans have adopted increasingly more significant water management objectives. The plans are interconnected, in that conflict provisions exist to help clarify which provisions apply in certain areas, and in that much of the protected areas is contiguous. But, as will be seen, the integration of land-use planning with water management remains limited.  5.3.4  Growth and conservation in the GGH  The GGH Growth Plan and the Greenbelt Plan are twinned planning institutions for the GGH nested into the larger provincial planning framework. The GGH Growth Plan directs and prescribes where and how growth should occur; the Greenbelt Plan restricts growth in non-urbanized areas (see Figure 5.3). Significantly, with these institutions the province has “reorder[ed] the economic and political space of the larger Toronto region” (p. 2); and “actively reinserted itself back into the regional planning process within southern Ontario and, in doing so, has begun restructuring the GGH region in a top-down fashion” (Macdonald and Keil, 2012, p. 10). These place-based plans,175 further supplement the land-use planning framework and “express the Government of Ontario’s interests and directions with regard to growth management in the GGH.” 176 This super-regional framework has not been without critics. The ECO has stated more than once that place-based statutes and plans “reflect a disturbing trend to protect notable heritage features on an individual basis” (ECO, 2011, p. 6). The ECO would prefer the province “implement broader-based safeguards as a provincial interest under the PPS” (ECO, 2011, p. 6-7). The concern is that the current land-use framework “protect[s] by exception on a regionallyspecific basis rather than as a rule;” an approach that the ECO finds to be “both reactionary and problematic” (ECO, 2009, p. 22). For the agricultural community, the imposed Greenbelt and Growth Plan borders have had tremendous impact on land values (Macdonald and Keil, 2012; Pond, 2009). Macdonald and Keil (2012) report that the Greenbelt boundaries are not rooted in science, but were the outcome of “a planning task in which staff 174  Lake Simcoe Protection Plan, p. 5. Including other development plans approved under the Ontario Planning and Development Act, 1994. 176 GGH Growth Plan, p. 11; Planning Act, s.1(1). 175  146  5.3. The land use framework for Southern Ontario  Figure 5.3: Places to Grow Concept, Schedule 2 to the Greater Golden Horseshoe Growth Plan, 2006  GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE 2006  SCHEDULE 2  Places to Grow Conce  Note: The information displayed on this map is not to sc be out of date. For more information on precise boun Greenbelt Area boundaries, the Greenbelt Plan 2005 sho consequences of any use made of this map.  Source: c Queen’s Printer for Ontario, 2006.Places to Grow Plan for the Greater Golden Horseshoe, 2006. Reproduced with permission. Disclaimer note: The information displayed on this map is not to scale, does not accurately reflect approved land-use and planning boundaries, and may be out of date. For more information on precise boundaries, the appropriate municipality should be consulted. For more information on Greenbelt Area boundaries, the Greenbelt Plan 2005 should be consulted. The Province of Ontario assumes no responsibility or liability for any consequences of any use made of this map.  147  5.4. Water management and land-use institutions considered a number of factors such as growth projections, land supply estimates, and the desire to build on already protected areas” (p. 13). For the agricultural community land values vary wildly depending on what side of the greenbelt line one’s land is on. The province has upscaled land-use decision-making in southern Ontario from the local to the GGH, a mega-region. This serves to “fasten the regional political-ecology in a legal and planning framework that will determine the terms of the conflict around environmental territories in southern Ontario” (Macdonald and Keil, 2012, p. 17).177 Drawing on the work of While et al. (2004), (Macdonald and Keil, 2012) state that mega-regional governance often includes a “sustainability fix” in which ecological objectives are “selective[ly] incorporat[ed]” (p. 6). The next section examines the degree of incorporation of water management provisions in the GGH mega-region.  5.4  Water management objectives in land-use planning institutions  This section considers how the Greenbelt Plan’s policies protect, improve, and restore water quality and quantity, in connection with the mega-region land-use planning framework. The GGH Growth Plan envisages that in 2031, the GGH will be characterized by “[A] healthy natural environment with clean air, land and water.” 178 In fact, the goal of a “healthy natural environment” appears secondary; it is the hoped outcome of creating a better “investment environment” and greater prosperity. Both the GGH Growth Plan and the Places to Grow Act, which aim for global competitiveness and economic prosperity, prioritize economic development. Some commentators suggest the province is “trying to balance the sometimes conflicting agendas of protecting the environment, yet encouraging economic and population growth in the region” (Macdonald and Keil, 2012, p. 15). The ECO is less charitable, contending the approach to planning in southern Ontario is one of “ ‘irreconcilable priorities’. . . that reinforce unsustainable approaches to planning and development” (ECO, 2007, p. 13) The Greenbelt Plan is the counterweight to the GGH Growth Plan; it protects the non-urbanized lands in the GGH, with the objective to support the goal of a healthy natural environment. The Greenbelt Plan extends the PPS’s vision for a “comprehensive, integrated and long-term approach to planning” to “the protection, improvement or restoration of the quality and 177 178  Macdonald and Keil (2012, p. 4) call this extended metropolitanization. GGH Growth Plan, p. 9.  148  5.4. Water management and land-use institutions quantity of water.” 179 According to an eNGO interviewee, together the GGH Growth Plan and the place-based plans: try to conserve land around the city, but on a policy basis the government wants to continue to encourage economic growth [with] increasing population in the coming years and [the provincial government] had to say where people would be put. But none of it [the group of provincial plans] was focusing on water. The protection of Greenbelt lands does include natural heritage protection and water is certainly part of that but it wasn’t really the focus of it [Interview 15]. Water is incorporated into the Greenbelt, but perhaps, not integrated. The Greenbelt Plan gathers the lands within the Niagara Escarpment and the Oak Ridges Moraine180 and adds new areas that are known as “Protected Countryside”. More than half of the land area of the Lake Simcoe Watershed is within the Greenbelt Area.181 In the result, the GGH is governed by a complicated tapestry of policy and regulation where “various levels of government and agencies. . . work collectively to manage and guide land use.” 182 To determine which plans and policies apply, the Greenbelt directs as follows: Where multiple policies apply, these are to be applied in either a cumulative or integrated manner, such that all of the policies that relate to a matter are addressed, with the more specific or restrictive policy applying where there are conflicts. Policies are not meant to be read in isolation or to the exclusion of the rest of the policies, both general and specific. As well, the schedules within the Greenbelt Plan need to be read to determine the applicable policies within the Plan relating to the various designations, information and/or boundaries shown on these schedules.183 With few exceptions, in the event of a conflict between the various provincial plans and the PPS, the provincial plans (the environmental place-based plans and the GGH Growth Plan) take precedence. This reinforces the primacy of the mega-regional planning led by the province. The conflict provisions 179  Greenbelt Plan, s.3.2.3(1). As well, the Greenbelt Plan includes lands in two other provincial level initiatives: the Parkway Belt West Plan and the Rouge North Management Plan. 181 Lake Simcoe Protection Plan, p. 7. 182 Greenbelt Plan, p. 42, s.5.4. 183 Ibid., p. 43, s.5.4. 180  149  5.4. Water management and land-use institutions  Table 5.3: Ministries, land-use and water management institutions Ministry  Main land and water legal institutions  Statement of Environmental Values  MOE  Lake Simcoe, Environmental Protection Act, Environmental Assessment Act, Clean Water Act, 2006, Ontario Water Resources Act  Yes  MNR  Drainage Act, Niagara Escarpment Act, Lakes and Rivers Improvement Act  Yes  MMAH  Planning Act, (Municipal Act), PPS, Oak Ridges Act, Greenbelt Act  Yes  OMAFRA  Nutrient Management Act  Yes  MOI  GGH Growth Plan, Aggregate Resources Act  No  MOT  Transportation policies  Yes  reduce the sources of legal institutional fragmentation by guiding interpretation through the complexity of land-use governance in the GGH. Most regional municipalities are now in compliance with the GGH Growth Plan, but several lower municipalities have drafted changes to official plans that are in contradiction (e.g. Durham) (Macdonald and Keil, 2012). Ministries engaged in water management and land-use planning management in the GGH have already been discussed, but reviewing them here highlights the complexity of the task of integration (see Table 5.3). The Ministry of Infrastructure manages the GGH Growth Plan and the Aggregate Resources Act which also applies within the Greenbelt. MNR manages the Drainage Act and the Niagara Escarpment Plan with the Niagara Commission. MMAH manages the Oak Ridges Moraine Conservation Plan and the Greenbelt Plan as well as the general land-use planning framework. MOE administers the Lake Simcoe Protection Act, as well as the Environmental Protection Act and the Environmental Assessment Act, the OWRA and Clean Water Act, 2006 (the “CWA”). OMAFRA manages agricultural issues, including the Nutrient Management Act. Finally, the Ministry of Transportation’s mandate, especially in its transport corridor planning, intersects with land-use planning. The Planning Act, permits ministries to comment on planning decisions so long as those comments are consistent 150  5.4. Water management and land-use institutions with the PPS, and have regard to provincial plans. This governance structure creates significant intra-jurisdictional fragmentation amongst ministries which are characterized, as discussed in 5.2.2, by divergent environmental values. The overlapping nature of the Greenbelt lands means that land designations are critical to determining which policies — including water policies — of which plan apply. The Greenbelt Plan policies apply to all lands in the Greenbelt area designated as “protected countryside;” about a million acres, not within the NEP or ORCMP, are designated as “protected countryside” which is of three subtypes: agricultural, natural, or settlement areas . Natural system areas are comprised of “natural heritage systems” and “water resource systems.” 184 The “natural heritage system” designation “functions as an overlay on top of the prime agricultural and/or rural area designations contained in municipal official plans.” 185 Permitted uses of land in such areas are subject to the constraints of the natural system policies including key natural heritage features and key hydrologic features186 as designated by municipal official plans.187 Unlike the ORMCP, the Greenbelt Plan does not protect aquifers and recharge areas.188 The Greenbelt Plan offers limited protection to lands found within key hydrologic features. If development or site alteration has to do with any number of other activities189 as described by, and subject to, the general policies for “protected countryside” then the protection for key hydrologic features can be bypassed, limiting protection.190 In the Greenbelt Plan, hydrologic protection is subjugated to many types of development, as in the PPS (see section 5.3.1). The “water resource system” comprises “both ground and surface water 184  Ibid., p. 15. Ibid., p.7. 186 Include streams (permanent and intermittent), lakes (and littoral zones), seepage areas and springs (unseen groundwater is not a key hydrologic feature); and wetlands (Greenbelt Plan, p.7) 187 Ibid., p.7. 188 The Greenbelt Plan states “[T]he ORMCP and NEP include very significant elements of, and are fundamental to, the Water Resource System. The areas to which these plans apply contain primary recharge, headwater and discharge areas, together with major drinking water aquifers, within the Greenbelt” (Greenbelt Plan, p. 16). To the extent that recharge areas or aquifers exist in the “Protected Areas” of the Greenbelt and outside of the ORMCP and NEP they will not be protected. 189 Such as forest, fish and wildlife management; essential conservation and flood or erosion control projects; or infrastructure, aggregate, recreational, shoreline and existing uses. 190 Greenbelt Plan, s. 3.2.4. 185  151  5.4. Water management and land-use institutions features and their associated functions which provide the water resources necessary to sustain healthy aquatic and terrestrial ecosystems and human water consumption.” 191 Management of the Greenbelt’s water resources must be integrated with management of water resources outside the Greenbelt.192 To do this, municipalities (through official plans) and conservation authorities (through a variety of efforts) “shall continue to assess and plan for these natural and hydrologic features in a comprehensive and integrated manner, which builds upon and supports the natural systems identified within the Greenbelt.” 193 This shifts responsibility of comprehensive and integrated planning to the regional and local level in the absence of a provincial comprehensive and integrated water strategy. And, watershed management which has been the near exclusive purview of conservation authorities is to be shared with municipalities. There are four “water resource systems” policies in the Greenbelt Plan.194 The first of the four policies sets a broad vision in requiring all planning authorities (including municipalities) to “provide for comprehensive, integrated and long-term approach for the protection, improvement or restoration of the quality and quantity of water.” The integrated approach is to “consider all hydrologic features and functions and include a systems approach to the inter-relationships between and/or among recharge/discharge areas, aquifers, headwaters and surface waters.” 195 Hydrologic functions are defined in the Greenbelt Plan as the functions of the hydrologic cycle. This separates hydrologic functions from ecological functions — effectively this policy fragment the biophysical environment into the hydrological and the ecological and denies the interrelationships of land and water. The Greenbelt’s integrated approach seems limited as it comprises only hydrologic features and functions, not ecological features and there is no mention of land. Ecological features, or land, is managed separately under the Natural Heritage System policies of the Greenbelt Plan. The second policy states that “watersheds are the most meaningful scale for hydrological planning” and that municipalities and CAs “should ensure that watershed plans are completed and used to guide planning and development decisions within the Protected Countryside.” Again, the notion of the watershed as an idealized scale for planning is not new, but here it is ideal for only “hydrological planning” not for land-use planning. It is worth 191  Ibid., Ibid., 193 Ibid., 194 Ibid., 195 Ibid., 192  p. 16, s. 3.2.1. p.15. p. 15, s. 3.2.1(3). p.18. p. 18.  152  5.4. Water management and land-use institutions recalling that the Greenbelt Plan is managed by MMAH, not MOE. MMAH has not expressed the fidelity to the ecosystem approach. The third water resource policy emphasizes that cross-jurisdictional and cross-watershed impacts of watershed planning mean that watershed planning in the Protected Countryside should be integrated with that in the Niagara Escarpment and Oak Ridges Moraine. Again, there is no guidance as to how this integration of watershed planning might be achieved by municipalities or how they might coordinate with the NEP and the ORMCP. The fourth policy concerns source protection and requires that municipalities, as directed by the province “protect vulnerable surface and ground water areas, such as wellhead protection areas, from development that may adversely affect the quality and quantity of ground and surface waters.” 196 Notably, the definition of development is narrow as in the PPS (see 5.3.1) and therefore does not extend to transportation or infrastructure, meaning there may be considerable development in vulnerable areas that municipalities cannot prohibit. This is an example of the jurisdictional fragmentation created by the provincial upscaling of land-use planning in the GGH. The province protects some ecological and hydrological features and functions, perhaps improving hydro-ecological integration (and connectivity) across the megaregion. However, equally, it permits resource extraction and infrastructure installation and removes local control (e.g. the ability of municipalities to prohibit aggregate extraction). Section 5 of the Greenbelt Act includes a water management objective for the Greenbelt Plan “(e) to provide protection to the land base needed to maintain, restore and improve the ecological and hydrological functions of the Greenbelt Area.” The objective articulates the need to protect land to improve water functions. But, the limited acknowledgement of the interconnections between land and water in the four Greenbelt Plan water policies fails to support or deliver the this water management objective. Taken together, the Greenbelt Plan water policies contradict the MOEE-MNR policy documents from 1993 that stated watershed boundaries were appropriate for land-use planning. But, this may not be surprising given that the Greenbelt Plan is administered by MMAH, not MOE or MNR. The consequences of this administrative fragmentation is apparent confusion in Ontario about watershed management planning and the ecosystem approach. The stated objectives for integration of land and water in the GGHGreenbelt are continuously subject to two threats. First, the construction of highway projects. The Ministry of Transportation has proposed “three 196  Ibid., p.18.  153  5.4. Water management and land-use institutions highway projects through the Greenbelt” which represent a major threat of biophysical fragmentation of the Greenbelt (Carter-Whitney and Esakin, 2010, p. 64). Second, “the extraction of aggregates in environmentally sensitive areas continues to be one of the most serious threats in the Greenbelt” (Carter-Whitney and Esakin, 2010, p. 64). These two threats prioritize economic development and subjugate environment to development priorities. The Greenbelt is an important initiative in Ontario, but it is not integrated ecosystem management. On this point, the ECO stated: [T]he 2005 PPS, along with other Ontario laws that shape how it is implemented, unequivocally establish priorities. Environmental planning and the protection of natural areas, wild species and water quality are not given the same importance as drivers for economic development (ECO, 2011, p. 6). Indeed, “[I]nfrastructure expansion and resource extraction have the potential to negatively influence the ecological integrity, biological diversity, water quality and long term permanence of greenbelts” (Carter-Whitney and Esakin, 2010, p. 2). Ontario continues to permit activities that are simultaneously environmentally destructive and key economic drivers including aggregate extraction, wetlands drainage, and highway construction. The ECO concluded “[F]rom an ecological or sustainability perspective, this planning approach [the PPS and the laws that shape its implementation] will fail in the long term” (ECO, 2011, p. 6). Nonetheless, it remains the approach despite the clear statement that the Greenbelt is intended to maintain ecological functions and promote connectivity between the NEP and the ORMCP as the “lungs” of the Greater Golden Horseshoe. The specific integration of watershed plans into official plans is necessary, but not sufficient to amount to an integrated and sustainable approach (Carter et al., 2004). More is required. The MOEE-MNR watershed planning documents stated “[A]n ecosystem approach to land use planning requires that boundaries for land use planning be based on biophysical boundaries as the context for examining the relationship between the natural environment and human activities” (Ministry of Environment and Energy and Ministry of Natural Resources, 1993c). In 1994 MOEE (as MOE then was) recognized jurisdictional and administrative fragmentation in Ontario’s landuse planning, stating the process: reflects activities in a patchwork of municipalities and provincial agencies with restricted jurisdictions, as well as geographic boundaries that are not based on ecological units [save for conservation authorities]. Without mechanisms and formal means for 154  5.5. Source protection coordinated planning across political boundaries, planning decisions will continue to be made without reference to an ecosystembased context (Ministry of Environment and Energy, 1994, p. 22-3). The report was prescient: land-use planning decisions are mostly made on a political boundary basis and water management decisions (which often encompass ecological concerns) are made on a watershed basis, and the latter is inserted into the former. The mega-region governance of the GGH instills broad regional objectives, but, the boundaries are political. It integrates watershed management, but not in a sustainable manner. Taken together with its complementary Greenbelt Plan, the GGH Growth Plan does not embody an ecosystem approach for the GGH: land and water are managed separately.  5.5  Source protection  Today source protection planning usually refers to the process and plans being developed under the Clean Water Act, 2006 197 (the “CWA”) and led by source protection committees. But, it is important to note that tools to integrate land-use planning and water management exist outside of the CWA. The Grand River Conservation Authority (the “GRCA”) and the Regional Municipality of Waterloo (the “RMW”) attained significant integration of land-use and water management planning, including source protection, through a variety of policies and activities (Ivey et al., 2006). Figure 5.4 shows the boundaries of the RMW within the GRCA. Many of the RMW’s innovative policies were implemented through its official plan. The RMW policies implemented to address source protection included: directing development away from wellhead protection areas; limiting the installation of new private septic systems and wells; requiring lower-tier municipalities to prohibit certain new developments; requiring; instituting a new sewer use by-laws; establishing a municipal development line (something like a municipal greenbelt); and managing road salt usage (Ivey et al., 2006, p. 202). But, the experience in RMW showed that regional governments “lack key regulatory powers over existing land uses and activities” (Ivey et al., 2006, p. 204). Indeed, much of that authority is held by the province revealing another site of jurisdictional fragmentation. After Walkerton, some source protection initiatives were built into the ORMCP and the Greenbelt Plan, before the CWA was passed. The ORMCP 197  S.O. 2006, c. 22.  155  5.5. Source protection  Figure 5.4: The Grand River Watershed including Regional Municipality of Waterloo and Six Nations Reserve  Source: Grand River Conservation Authority. Reproduced with permission. 156  5.5. Source protection definitions of ecological integrity and hydrological integrity198 indicate a commitment to the integration of land and water. In support of its integration objective, the ORMCP required every upper-tier and single-tier municipality in the ORMCP’s area to begin preparation of a watershed plan and a water budget and conservation plan for “every watershed whose streams originate within the municipality’s area of jurisdiction” 199 To link land use and water management, municipalities were directed to incorporate “the objectives and requirements of each watershed plan” into official plans. In addition to watershed planning, the ORCMP guided municipalities in early source protection by restricting land uses in wellhead protection areas and areas of high aquifer vulnerability.200 The geographic scope of the ORMCP and Greenbelt areas meant several municipalities in the GGH were required to begin early source protection planning. Municipalities that did prepare watershed plans and a water budget and conservation plans have been able to leverage them into documents for the CWA source water protection planning (CTC Source Protection Committee, 2011).  5.5.1  Clean Water Act source protection in the GGH  Although primarily concerned with drinking water security, the Walkerton Inquiry articulated the importance of “a comprehensive water management strategy that would address all aspects of water management on a watershed basis” upon which the source protection framework would rest (O’Connor, 2002a, p. 96). The Walkerton Inquiry endorsed the MOEE-MNR watershed planning process and the Ontario government claims it has implemented all of the Walkerton recommendations (O’Connor, 2002a; Ministry of the Environment, 2007b). As noted, Ontario lacks a comprehensive provincial water strategy. Equally, it lacks a mega-region water management strategy. The province upscaled land-use planning, but did not bring water policy with it. It is well established that effective water management “depends on coordinating mechanisms capable of bridging the gaps between the relevant institutions and the organisations” (Moss, 2004, p. 87). Land-use and water management institutions continue to be mismatched in the GGH. The Walkerton Inquiry found that in Ontario in 2002 the drinking water source protection system structure amounted to “a patchwork that lacks a 198  Hydrological integrity means “the condition of ecosystems in which hydrological features and hydrological functions are unimpaired by stresses from human activity” (ORMCP s.3(1)). 199 ORMCP, s.24(1) and s.25(1). 200 Ibid., ss. 28 and 29.  157  5.5. Source protection clear mandate, leadership, consistency, and coordination” (O’Connor, 2002a, p. 91). Justice O’Connor in the Inquiry Report stated “. . . it would be very difficult to develop a meaningful protection regime without a broader strategy. The recommendations I make in this chapter [re: source protection] assume that a broader system will be in place” (O’Connor, 2002a, p. 96). As noted, Ontario does not have “a comprehensive water management strategy that would address all aspects of water management on a watershed basis” (O’Connor, 2002a, p. 96), even if many of the pieces are in place. To address the source protection “patchwork” the Walkerton Inquiry made seventeen recommendations in Part 2 of its report. Many of the recommendations were based on the three watershed planning process documents produced by MOEE (as MOE then was) and MNR in 1993. Source protection is designed to protect both quality and quantity of drinking water, but quality has been the dominant concern. As noted by the Walkerton Inquiry, Ontario has sufficient supply to provide “drinking water to its population” and “little reason for immediate concern about the gross quantity of water available”; however, the effects of climate change and contamination might make quantity concerns pressing in short order (O’Connor, 2002a, p. 88). In 2003, acting on Justice O’Connor’s recommendations, the Ontario government struck two committees to advise the Minister of Environment on source protection planning and implementation (Implementation Committee, 2004). Through the efforts of these committees draft legislation was prepared, eventually resulting in the enactment of the Clean Water Act, 2006 (the “CWA”). The purpose of the CWA, stated in section 1, “is to protect existing and future sources of drinking water.” The CWA “is dedicated to sources of water that have been designated by a municipality as being a current or future source of residential municipal drinking water for the community” (Ministry of the Environment, 2007a, p. 4). As the first barrier in the multi-barrier approach to safe drinking water, watershed-based source protection offers multiple benefits. By keeping contaminants out of drinking water sources it is both efficient — it keeps drinking water contaminant free — and cost-effective — it reduces treatment costs (O’Connor, 2002a; Hill, 2007, p. 89). In Ontario, watershed management led by conservation authorities traditionally focused on quantity management. In 1972, the first Great Lakes Water Quality Agreement was designed to address quality of surface waters in the Great Lakes Basin. To the extent that these two institutions protected quality and quantity of source water, it was not the result of a specific watershed source protection policy. After the Walkerton tragedy, interim source protection was done through the ORMCP and the Greenbelt Plan. It was not until after the Walkerton Inquiry that 158  5.5. Source protection Ontario developed specific source protection legislation, making it a relative latecomer to source water protection (Hill, 2007, p. 209). CWA source protection framework Ontario’s source protection framework is built upon the well-established conservation authority watershed-planning framework and the existing land-use institutions. CAs lead on the development of source protection plans and regional municipalities implement them. Source protection plans are developed on watershed boundaries, and will be implemented on political land-use boundaries. Under the CWA the watershed management area of a conservation authority is also a source protection area. In this way each CA is concomitantly a source protection authority (“SPA”).201 Regulations under the CWA group SPAs together into a source protection region (“SPR”) with one SPA designated as the lead. Each SPR has a source protection committee (the “SPC”) (CTC Source Protection Region, 2010c). The SPC is comprised “of local representatives from municipalities, economic and public interests sectors from across” the SPR which prepares the terms of reference, the assessment report and the source protection plan with assistance from municipalities, SPAs, and provincial ministries” (cf. CTC Source Protection Region, 2010b).202 If an SPR includes any part of a First Nations reserve, then the SPC may have up to three First Nations representatives, depending on the size of the SPC.203 Figure 5.5 shows the boundaries of the Lake Erie Source Protection Region, comprised of the Grand River Source Protection Area (the “GRSPA”), plus three other SPAs (Long Point, Kettle Creek, and Catfish Creek). Source protection planning is a multi-year process that requires the development of, for each SPA, a watershed characterization report, terms of reference for each SPC, technical assessment reports, and finally, the source protection plan (Ministry of the Environment, 2007a). Drinking water quality and quantity are protected by identifying threatening activities and vulnerable areas (in the technical assessments)204 (cf. CTC Source Protection 201  But, source protection experts note that some SPA boundaries are different than CA boundaries owing to improved mapping abilities. In certain topographies differences of a metre can be significant to management efforts [Interview 33]. 202 General, O. Reg. 287/07. 203 Ibid. 204 Assessment reports are comprised of five technical elements — watershed characterization, water budgets and water quantity threats assessment, groundwater vulnerability, surface water vulnerability, and threats and issues - water quality threats assessment.  159  5.5. Source protection  Figure 5.5: Lake Erie Source Protection Region  Source: Gran