Province failed the public by withholding water test results: Privacy Commissioner

by Stephen Hume, originally posted on June 29, 2016


B.C.’s environment ministry failed its public duty to fully disclose test results regarding suspected contamination of community drinking water from liquid manure used as farm fertilizer above an aquifer in the North Okanagan, Information and Privacy Commissioner Elizabeth Denham ruled Wednesday.

She ordered environment minister Mary Polak’s department to disclose soil test results and other associated documents related to the Hullcar aquifer in the township of Spallumcheen.

Polak said her department would release all relevant documents immediately and accepted Denham’s recommendation that ministry staff be properly trained to respond to such requests for information in the future.

“The commissioner did not suggest the ministry was not doing its job as a regulator and concluded that by releasing this information, public confidence may be restored in the ministry’s approach to this issue,” Polak said in a media release. “Government continues to work with the local community and we are taking all necessary actions to ensure the residents of Spallumcheen have safe drinking water while preserving the region’s agricultural economy.”

The aquifer, which supplies several hundred households with drinking water, has been under a public health advisory since July 2014, when levels of nitrates in tap water that had been trending upward since 2011 finally exceeded Canadian safety levels.

Public health authorities warned that high nitrate levels were hazardous to nursing mothers, babies and toddlers, people with suppressed immune systems such as cancer patients on chemotherapy, and those with chronic illnesses or who take medications that can interact with nitrates, like some of those prescribed for controlling blood pressure. And the advisory warned that nitrates increase the risk of stomach cancer.

Nitrate pollution has been associated with cattle manure and a large dairy operation had been applying liquid manure as fertilizer on fields immediately over the aquifer under authorization from the environment ministry.

Denham said that while there was no suggestion the province had not been diligent in addressing the water contamination problem – it subsequently struck a multi-ministry task force to deal with it — failure to fully disclose the requested soil test results had contributed to lack of public confidence in regulatory approvals of manure applications.

“If public bodies were more open with information, it would serve their own interest as much as the public interest and leave little room for suspicion sometimes held by stakeholders, and by some members of the public and the media,” the commissioner said.

But Denham also found the ministry failed to make reasonable efforts to assist in information access and said government has a duty to assist, not obstruct, such requests.

“Public bodies need to aid applicants throughout the freedom of information process. Applicants should never have to defend their motives for requesting information,” she said. “This report is a reminder to all public bodies about their many obligations to the public under B.C.’s access and privacy laws.”

Denham called on government to make it a policy to proactively disclose information “whether or not disclosure is required by access to information and privacy laws.”

Private water users, the board of the Steele Springs Waterworks District (which supplies about 250 clients), the mayor and council of Spallumcheen and members of the provincial legislature all repeatedly requested that the ministry disclose soil test results and analysis justifying the continued application of liquid manure despite rising nitrate levels.

“This information is in the public interest and should have been proactively disclosed,” said a statement from NDP MLA George Heyman, who pursued the matter doggedly during successive question periods. “It is no wonder the residents of Spallumcheen lack confidence.”

Polak had refused to release the complete results, saying that to do so would violate copyright.

However, Denham ruled that the government’s own legislation clearly provides for waiving of copyright protections in disclosure of information that’s required to be reported to government by law, particularly where there’s a public health component.

“I am troubled by the minister’s statement that the Copyright Act applies,” Denham said.

Calvin Sandborn, director to the Environmental Law Centre at the University of Victoria, which asked the commissioner to investigate provincial refusals to disclose soil test results and challenged its reasons for doing so, said he was also troubled by Denham’s finding.

He described Polak’s statements to the legislature and the township of Spallumcheen citing copyright as “flagrantly incorrect” and “absolutely untrue.”

“I think the minister should go back to the legislature and apologize,” he said in a telephone interview from Oregon, where he’s on vacation. “She needs to explain why she made those statements.”

“The government hid behind the professional reliance model that it has adopted, in which a Qualified Professional must be hired and paid for by the farmer, but is directed by the ministry,” said Al Price of the Save Hullcar Aquifer Team, a local citizens group concerned about contamination of drinking water.

“Soil test results should reveal whether the Ministry of Environment allowed too much effluent to be spread on the field of concern or not,” Price said.

“What continues to baffle us is why the government is fighting so hard to protect an industrial dairy farm and appears to be willing to sacrifice the public health of more than 350 people, including members of the Splatsin Nation, to do so.”

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