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For the Water

Issue: 63 Section: Environment Geography: Ontario Simcoe County Topics: water, Indigenous, garbage

August 24, 2009

For the Water

Opposition to Site 41 unites Natives, farmers

by Dan Kellar, Alex Hundert

A rainbow appears over the protest camp at Site 41. Photo: Dan Kellar

SIMCOE COUNTY, ON—It has been nearly four months since a group of Anishinabe women from Beausoleil First Nation set up a protest camp across the road from a construction site where a new garbage dump is being built. More than 20 years have passed since members of the local agricultural community started the fight to protect what has become known as the world’s purest water.

Tomorrow, August 25, Simcoe County Council will meet, and the agenda includes a vote on a one-year moratorium on development of Dump Site 41. Many Canadians outside the county are familiar with Site 41 because of recent public protests.

Mark Calzavera, the new Council of Candians (COC) organizer for Ontario-Quebec, says, “Ninety-nine per cent of the work that I’ve done has been on Site 41.”

"We’ve really been putting a full court press on the issue because the time frame on the issue is very, very critical," he adds. "The construction is happening now and the people that were there needed support right away.”

The proposed garbage dump is located a few kilometers from the town of Elmvale and barely 30 kilometres from the Beausoleil First Nation reserve on Christian Island in Georgian Bay. The location covers 20.7 hectares of land, is surrounded by productive farmlands and sits directly above the Alliston aquifer. Site 41 has been a contentious development since 1979, when the North Simcoe municipalities started researching garbage dump development options. The county has been dewatering the aquifer as part of preparations for the site, which is slated to receive garbage as soon as possible.

The COC, like the local community, is focused on fighting Site 41 through the system. “From our perspective, what we wanted to do, and what we’ve always said, is that we were looking for a political solution bringing a vote back to council...on whether the dump site should go ahead or not, or whether to issue a moratorium until some of the outstanding questions could be answered,” says Calzavera.

COC lawyers discovered that the site had only received authorization for preliminary work, not for the cell construction. In other words, they had permission to start developing the site, but not to dig the hole the garbage would eventually go in. “They were never authorized to do that, in fact, they were specifically told not to do it by the folks in [Simcoe County] council.” Cell construction began anyway.

During a two-week stay of court in which COC lawyers were awaiting a ruling on the legality of the site, the courts and the Ontario Provincial Police (OPP) put on the pressure at Site 41, arresting 10 people between August 2 and 10.

The resulting publicity means that “far more people...understand what is going on,” explains Calzavera.

Police were once again used to clear the shoulder-to-shoulder protesters from in front of the access gates on August 18, and six more people were arrested.

A sign near the Site 41 protest camp. Photo: Dan Kellar

***

The initial environmental review for Site 41 ended in 1989 with a provincial Environmental Review Board rejecting the project. According to Steve Ogden, a local farmer and member of the Community Monitoring Committee (CMC), in 1990 the Peterson government forced re-opening of discussion on Site 41, leading to a provisional Certificate of Approval (CoA) being granted for the project in 1998. Ogden claims that political pressure led to the project being approved, despite known environmental impacts.

One of the provisions of the approval required the CMC to “serve as a focal point for the collection, review and exchange of information relevant to both county and local concerns in connection with the landfill site.” By the end of 2001, two applications for review of the CoA, based on groundwater concerns, were dismissed by the MoE, and in 2003, hydrological consulting company Jagger Hims Ltd (now owned by GENIVAR), which the county hired, created a hydrogeological evaluation of the site using open source computer software Modflow.

The CMC has been denied access to data from the computer model that alleges that Site 41 is ecologically sound. Ogden filed a freedom of information request in 2006 after the final approval that year, despite concerns from Ontario’s Environmental Commissioner. Jagger Hims Ltd argues that the models contain “proprietary information” and still refuses to release the information—which Ogden points out is "a violation of the CoA, and unfortunately the OPP can’t force the MoE to follow the law. I’m not sure who does, because from what I have witnessed, they are not following the rules.”

Vicki Monague, a single mother from Beausoleil First Nation and spokesperson for the protest camp, says of the MoE, “Ultimately, I think the issue is that they are looking more at economy rather than ecology or environment.”

Monague, who was arrested and charged with mischief and intimidation, was banned from returning even to the legal protest camp. She links the direct action taken by herself and others, action considered illegal by the state, to positive social change: “This is actually a really great thing that has happened... the fact that we are able to impact and expose [the corruption] for what it is, and hopefully promote change within the system.”

Mohawk environmentalist Danny Beaton is one of five First Nations people who have been charged in connection with Site 41—he is the only non-local arrested thus far. However, it is not only Indigenous people who have been targeted for arrest by the OPP. Members of the local agricultural community have also been charged in connection with attempts to stop Site 41.

Keith and Ina Wood are 82 and 76 years old, respectively. Calzavera describes Ina Wood as “a saint.” Monague describes the couple as “people who have never even had a parking ticket... law abiding citizens who had lost their faith in the legal system and the political system.”

The Woods—like Monague, Beaton and the 12 others—are facing charges of mischief and are living under bail conditions. Monague says that the example set by the Woods “should inspire people to stand up and use their voice, and to protect what is theirs and to protect their heritage.”

On the eve of the hundredth day of the protest camp, Monague emphasized how their fight has highlighted the extent to which taking action to protect the land and water is not only a fight for First Nations.

“This is also a heritage territory for those families out there that are fighting Site 41 as well. Some of their farmlands have been there for up to 250 years, so this is now a land that we all share.” She continues, “It has gone beyond land claims and treaty rights and aboriginal rights... To protest, to protect the world’s purest water is a right that everybody has and that everybody should stand for.”

***

Corporate industrial giant GENIVAR also owns Henderson Paddon, the firm that provides landfill design and operations services to Simcoe County. This clear conflict of interest was highlighted recently in court when it was revealed that county officials defied a provincial Privacy Commissioner’s order to release the groundwater model, and have now been compelled to take actions to make the data public.

The information from the Freedom of Information inquiry, and issues around the criminalization of protesters, will also be discussed at the council meeting on August 25. It appears that through direct action, communities have come together to force local politicians to at least consider taking environmental protection seriously.

Monague notes that “this is really the first time ever in this area that non-Natives and Native people have stood together side-by-side.”

Calzavera adds, “I think one of the key reasons that the two groups have gotten along so well is that there is a tremendous amount of respect for the hard work that each [has] done and are doing, and the commitment that each group has shown.”

Calzavera says that part of the reason COC has fully engaged with the Site 41 issue "is actually that relationship between First Nations and the local agricultural community.” He emphasizes that “we often support fights like this, but this is a particularly important one because of the quality of the water—it is the purest groundwater that has ever been tested.

"The fight over Dump Site 41 is a metaphor for, and a link to, all the other fights to protect source waters and water sources in Ontario and across the country. They’re all under threat from bad development choices... and Site 41 is the one that is threatened the most right now.”

For more information about the Site 41 protests, including background information and resistance updates, go to www.stopdumpsite41.ca.

Alex Hundert is a community organiser and a founder of AW@L, Journalists for Human Rights - Laurier Waterloo Chapter, and the Earth Justice Initiative.

Dan Kellar is a PhD student at the University of Waterloo, undertaking research in the failure of environmental laws and policies in actually protecting the environment, and an organiser with AW@L

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Kichesipirini Assert Alliston Aquifer An International Concern

The Alliston Aquifer is part of a 12,000 year old water history of the area tracing back to the melting of glaciers and the creation of the great glacier lake known as Lake Algonquin. Lake Algonquin was a pro-glacial lake that existed in east-central North America at the time of the last ice age.

At about 7,000 years ago, the lake was replaced by Lake Chippewa, named after another Indigenous Peoples closely associated with the Algonquin, as the glaciers retreated and 3,000 years later by the current Lake Michigan. Remnants of the former lake are now Lake Huron, Georgian Bay and inland portions of northern Michigan. Throughout its course of visible existence this impressive ancient lake varied considerably in size receding gradually through climate changes to the current Lake Huron and Georgian Bay that we experience today.

This ancient lake whose existence would have been directly experienced by the Indigenous Peoples of that area for thousands of years.

Because of the abundance of water Indigenous societies prospered in the area for thousands of years, developing profound spiritual, cultural, and economic relationships with the waters they found themselves so reliant on.

Traditional Values Claim Water And Women Are Our First Line Of Defense For Healthy Lives and Environment

Embedded within these cultures and socio-political structures of our founding nations were an innate abiding awareness of the special relationship between water-life-motherhood-women and the Anishnabeg Kwe were given a special obligation to protect this vital gift of the Creator.

The Alliston Aquifer was chosen for a dumpsite many years ago.

Ontario Environment Commissioner Gordon Miller has stated that if the decision were to be taken today, the Alliston aquifer would never have been chosen for a dumpsite.

Since then much has been learned in Canada and around the world about the need to protect watersheds and water basins. In 2006, recognizing the crucial need to protect Ontario’s water resources, the government passed the Clean Water Act, which states that stopping contaminants from getting into our drinking water supplies is the first line of defence in protecting our environment and our health.

Internationally Unique Ecosystem

Numerous media quotes refer to statements made by Professor William Shotyk, a Canadian geochemistry professor at the University of Heidelberg in Germany in which he emphatically claims;

“It’s the best water on Earth. This is an area of artesian wells, where water frequently rises out of the ground under its own pressure….This is kind of like the old growth forest of natural waters.”

Some of his additional studies demonstrate that not only is the site unique because of the quality of the water but it is also unique as an ecosystem that actually generates that quality of water…..and even more interestingly, it seems able to produce this quality of water from substantially damaged elements.

In tests referred to in Soil: The perfect water filter Dr. Shotyk “followed the certain elements of anthropogenic sources “flows from the atmosphere to soils, and from there into some streams and lakes of the Great Lakes-St. Lawrence forest region. Lead isotopes (206Pb, 207Pb, and 208Pb) clearly show that the lakes are dominated by Pb from anthropogenic sources, but the concentrations in the aqueous phase may be extremely low (comparable to ancient arctic ice) because of various processes in soils, as well as the removal of soil-derived particles and colloids from the water column.”

Aquifers have been used to measure and compare recent sources of tritium contamination with pre- anthropogenic examples of water quality.

Anthropogenic effects or sources, are processes or materials are that are derived from human activities, as opposed to those occurring in natural environments without human influence.

To put these findings in perspective, these Pb concentrations are at the lowest levels ever measured anywhere on earth, and are testimony to elaborate and efficient removal processes in soils…..they are unsurpassed water filters….As the quantity and quality of global freshwater resources diminishes through population growth and climate change, this additional importance and value of soils to society will only increase.”

Groundwater is an increasingly important resource to human populations around the world, and the study and protection of groundwater is an essential part of hydrogeology.

Another area of important study where aquifers play a significant role is the study of environmental isotopes.

Environmental isotope hydrology or hydrogeology is a relatively new field of investigation based on isotopic variations observed in natural waters.

These isotopic characteristics have been established over a broadspace and time scale. They cannot be controlled by man, but can be observed and interpreted to gain valuable regional information on the origin, turnover and transit time of water in the system which often cannot be obtained by other techniques. The cost of such investigations is usually relatively small in comparison with the cost of classical hydrological studies.

Gaining increasing international interest is the observation of tritium.

The IAEA, International Atomic Energy Agency, publishes data on the concentration of tritium in precipitation collected at stations around the globe, from which tritium deposition at most places may be estimated. In hydrological studies, tritium measurements give information on the transit or turnover time of water within a system. In a confined groundwater system, tritium concentrations may be correlated with the known tritium deposition modified by considerations of seasonally-selected recharge and dispersive mixing effects within a granular aquifer.

Any studies regarding tritium within Ontario should be of great public interest.

Tritium is a dangerous radioactive substance produced in very large quantities during normal operations by Canadian (CANDU) nuclear reactors. Large amounts of tritium are produced by atomic bombs and nuclear reactors. Canada’s nuclear regulator (the Canadian Nuclear Safety Commission or CNSC) takes a casual attitude toward tritium compared to other parts of the world and in direct contradiction to International Atomic Energy Agency recommendations.

Millions of Canadians are exposed to tritium at higher concentrations than would be permitted elsewhere.

Tritium can cause many different types of serious health problems. Tritium is classified as a carcinogen (causes cancer), a mutagen (causes genetic mutations) and a teratogen (causes problems in the developing fetus resulting in birth defects). It is also possible that tritium causes other unwanted health effects like heart disease, autoimmune disorders, allergies and hormonal dysfunctions.

Even though we do not fully understand the full long-term or accumulative affects of tritium Canadian nuclear facilities are currently permitted to release large quantities of tritium into drinking water supplies such as Lake Huron, Lake Ontario, and the Ottawa and St. Lawrence Rivers.

Other important studies involving the Alliston Aquifer were conducted in 1996 Dr. Ramon Aravena as described in Groundwater Notes, a newsletter published by the Waterloo Centre for Groundwater Research, demonstrating the importance of the site in understanding environmental impacts of nuclear industry activity.

Dr. Aravena used a variety of isotopes,including oxygen-18, deuterium, carbon-14 and tritium (being a radioactive isotope of hydrogen that can show that water has entered the aquifer within the past 50 years or since the first thermonuclear devices were exploded)to evaluate the origin (recharge areas) and residence time of the groundwater.

Tritium gets into aquifers from contaminated rainfall. “If you find this is happening,” says Dr. Aravena, “if you find tritium in aquifers, you have to take this into consideration when you make decisions regarding the protection of recharge areas.”

International Environmental Protection and Scientific Concern

Aquifers have become fundamental tools for tracing the recharge, history, and contamination of groundwater. Monitoring the aquifer and protecting it as an important international reference has two essential aspects.

First, the aquifer and the deep water sources provide us with resources for comparative analysis concerning groundwater contamination. This is of extreme importance now in a world very aware of the seriousness of environmental degradation and the particular negative affects of water sources.

These are now issues of increasing international legal concern.

In her recent remarks to the United Nations General Assembly April 22, 2009 Maude Barlow, National Chairperson of the Council of Canadians and Senior Advisor on Water to the President of the United Nations, and strong advocate for the protection of the aquifer system, clearly states;

“First, water must be seen as a commons that belongs to the earth and all species alike. It must be declared a public resource that belongs equally to all people, the ecosystem and the future. It must be preserved for all time and practice in law as a public trust and a human right. Clean water must be delivered as a public service, not a profitable commodity.

We must efficiently manage our water for the common good, encourage social control mechanisms that put decision-making back in the hands of communities, and always remain vigilant against persistent power inequities...living in and with nature instead of over nature is our path to a water sustainable future…as a crucial next step, nature must be seen as having inherent rights beyond its use to us. Most western law has viewed natural resources as the property of humans. We need new laws to regulate human behaviour in order to protect the integrity of the earth and all species on it from our wanton exploitation.”

Many Canadian political leaders and corporate executives, including those involved in the nuclear industry, have been aware of these emerging laws for decades, and where they haven’t been actively attempting to neutralize or stall their development and implementation they have been actively effectively positioning themselves for positions of lesser liability and increased profit prior to Canadian citizens being fully informed.

As early as the 1970s the United Nations was becoming increasingly aware of numerous environmental concerns. The UN's first major conference on international environmental issues, marking a significant global shift in the development of international environmental politics was the United Nations Conference on the Human Environment. This conference was also known as the Stockholm Conference held in Stockholm, Sweden from June 5-16, 1972.

Important statements made at this conference provide interesting evidence regarding how aware political and corporate bodies have been concerning important expectations emerging around social and environmental responsibility and the terrible gaps affecting actual implementation.

Statements from the Conference include;

“Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale.”

This increasing awareness directly contributed to increased studies and appreciation of such bio-systems such as the Alliston Aquifer.

The seriousness of these international responsibilities and their intergenerational aspect is further articulated in the statement “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.’

Important Indigenous environmental, social and economic values which were once considered exotic and unrealistically romantic were now being re-examined and given appropriate recognition at the international level.

The oppressive regimes often associated with attempts to exploit and expropriate natural resources regardless of their effect on peoples or environments was now also gaining formal articulation at the international arena.

“In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.”

The Conference affirmed that “To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future.”

Clearly one of the most impressive aspects of the ongoing efforts of those individuals currently actively accepting their international responsibilities to protect the Alliston Aquifer is the common efforts of farmers, concerned citizens, academics and Indigenous Peoples.

Of International Legal Concern

In the World Charter for Nature, (United Nations General Assembly Resolution 37/7, of 28 October 1982) the community of States of the United Nations acknowledges that
“The degradation of natural systems owing to excessive consumption and misuse of natural resources, as well as to fauna to establish an economic order among peoples and among States, leads to the breakdown of economical, social and political framework of civilization” and are therefore a threat to peace and security…becoming then a matter of international legal concern.

It is a basic principle of international law that a breach of international law by a State entails its international responsibility.

International law provides that “every internationally wrongful act of a State entails the international responsibility of that State.”

The act or omission must be attributable to the State under international law and must constitute a breach of an international legal obligation under either a treaty in force or any other rules of international law that may be applicable.

In paragraph 2 of Article 14, the Convention on Biological Diversity specifically refers to liability and redress for “damage to biological diversity”.

The term “biological diversity” is defined in Article 2 as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological processes of which they are part; this includes diversity within species, between species and of ecosystems”.

The 1999 Basel Protocol on Liability for Damage resulting from Trans-boundary Movements of Hazardous Wastes and their Disposal, for example, provide for damage for the “impairment of the environment” besides traditional damage.

The Lugano Convention defines the term “environment” broadly as encompassing “natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors; property which forms part of cultural heritage; and characteristic aspects of the landscape”.

One of the key issues raised at the United Nations Forum on Indigenous Peoples (UNPFII), 18-29 May 2009, New York City, concerns the neglected role of indigenous women in climate change negotiations. The two week session brought together almost 2000 representatives of indigenous groups, UN agencies, governments and other experts.

Women generally represent natural family interests rather than commercial corporate interests.

Lorena Aguilar, Senior Gender Advisor of IUCN further emphasises “The capacity of women, particularly of indigenous women, to participate in biodiversity and climate change decision-making must be increased as well as valued”.

Colonial State Encourages Destruction of Pollution Evidence and Then Generates Lucrative Corporate Remedial Contracts and Technology Developments

Through numerous situations, both natural and generated, water is becoming a scarcity commodity of increasing “Value” on the capital market.

This commercialization of water, and water remediation, left in private hands, creates more incentive to sabotage water systems and then gain lucrative contracts to perform remedial and develop remedial technologies.

These business ventures, often dependent on government contracts, place the promotion of human rights directly in competition with big business, and people are caught in the competitive cross fires.

The International Law Commission restated this fundamental principle in its report to the fifty-sixth session of the United Nations General Assembly on “Responsibility of States for internationally wrongful acts”, which contained draft articles on the topic.

States can be held accountable for breaches of international law and emerging principles provide that “every internationally wrongful act of a State entails the international responsibility of that State.”

The act or omission must be attributable to the State under international law and must constitute a breach of an international legal obligation under either a treaty in force or any other rules of international law that may be applicable.

In paragraph 2 of Article 14, the Convention on Biological Diversity specifically refers to liability and redress for “damage to biological diversity”.

The term “biological diversity” is defined in Article 2 as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological processes of which they are part; this includes diversity within species, between species and of ecosystems”.

The “polluter pays principle” becomes a very important consideration within the emerging legal arena. If previous industrial or corporate pollution and damage can be confused with municipal damage, such as what is caused by faulty waste disposal sites, liability is conveniently shifted from corporations to tax payers.

Understanding the broader implications associated with the damage to ecosystems and unique water bio-systems in an international environmental legal context sheds new light on the issues surrounding the Alliston Aquifer controversy.

Colonial State Boundaries Hide the Actual Ecological System

The system should be properly understood as a potentially important international monitoring resource for criminal investigations regarding the corruption of waters and natural environments, and in this particular location, especially the damages caused by the nuclear industry.

Ontario dominates Canada’s nuclear industry, containing most of the country’s nuclear power generating capacity. Ontario has 16 operating reactors providing about 50% of the province’s electricity, plus two reactors undergoing refurbishment, one being the troubled Chalk River site located within traditional Kichesipirini territory and jurisdiction.

It must be remembered that ecosystems do not configure with contemporary geopolitical and municipal boundaries so we must remember that a certain inter-related ecosystem territory known as the Great Lakes basin, once the artificial borders are removed, is compromised by 37 commercial nuclear reactors, six uranium mining and production sites, nine radioactive waste dumps and the continued generation of deadly radioactive waste; all threatening this precious and unique ecosystem.

This ecosystem is home to over 40 million people and holds 20% of the world's fresh surface water.

Numerous environmental groups assert that federal regulators in both the U.S. and Canada have been systematically "reducing the regulatory burden" on the nuclear industry by weakening or selectively enforcing certain standards and regulations. They have been progressively removing, weakening or constraining the public's ability to freely scrutinize and intervene on nuclear safety issues in open, independent or fully informed consultation processes.

Often compliant Aboriginal groups are now often used to “supersede” normal monitoring and assessment processes and are often in conflict of interests because of government assisted economic partnerships with involved commercial corporations, while traditional value based Aboriginal groups or individuals are criminalized for protesting corruptions or protecting valuable resources.

The possible destruction of the world renowned aquifer, as an important unique international source for comparative examinations of radioactive and other contaminants, and as a unique source of natural bio-environmental remedy studies, must be understood within the broader context of impending international pollution liabilities litigation whereby the polluting corporations pay the penalty rather than the victimized taxpayers.

Colonial State is Killing the Country

In order to provide other countries with cheap technology, natural resources, medical products and dangerous waste disposal Canada ensures that it lowers it’s own environmental standards.

Canada has no national water policy and one of the worst records of pollution enforcement of any industrial State.

Existing Canadian policy also allows for the destruction and privitization of valuable monitoring resources and expert research that could have a positive impact on understanding various aspects of pollution and effects on ecosystems, help maintain important monitoring evidence and preserve historical standards of environmental quality, and develop new, safe, green national remedial technologies.

As a State does Canada have the right to destroy important international environmental and scientific evidence regarding the increasingly scarce life sustaining resource such as clean water?

As a State does Canada have the right to destroy important international environmental and scientific evidence regarding the long-term effects of radioactive materials and our natural environment?

The Kichesipirini asserts that the protection of aquifers such as this are matters of international concern and character.

The Kichesipirini asserts that these matters, the ready access and proper stewardship of clean and safe drinking water are human rights.

Kichesipirini Algonquin First Nation continually asserts that environmental and economic issues in Canada are directly associated with our unresolved colonial past and that any long-term effective remedy must address this.

Kichesipirini Algonquin First Nation has been continuously asserting internationally that it is in the best interests of all Canadians that Canada work to develop appropriate de-colonization processes for the Indigenous Peoples of Canada.

The Kichesipirini Algonquin First Nation asserts that the protection of the Alliston Aquifer and its continued use as an important environmental monitoring resource must be considered a matter of international public interest and that it be in the best interests of the public to use this, in its highest condition, as a most appropriate background measure for monitoring nuclear and industrial contamination and determining effective remedial actions.

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