P.E.I.'s new water act must ban fracking

Published on March 20, 2017

These signs of protest were on display at the July public information session on fracking in Windsor.

©Ashley Thompson

At the Environmental Leader's Forum held during the last provincial election, the moderator asked each leader whether he would ban shale-gas fracking if elected Premier. All party leaders indicated they would, except Wade MacLauchlan, who simply said: “A moratorium may come through the Water Act process.”

In legislation, the word ‘shall’ indicates something ‘must’ happen: the word ‘may’ signifies only that something ‘might’ happen; and unfortunately, ‘may’ often indicates that something is not likely to happen...especially when most people believe it SHOULD happen. Kevin J. Arsenault, Fort Augustus

In legislation, the word ‘shall’ indicates something ‘must’ happen: the word ‘may’ signifies only that something ‘might’ happen; and unfortunately, ‘may’ often indicates that something is not likely to happen...especially when most people believe it SHOULD happen.

Whenever government wants something to happen, the word shall is used. When government is eager to give the impression that it will do something, but wants to reserve the right not to do it, the word may is used. May gives politicians enormous discretionary power, is often misleading, and can easily frustrate the democratic will of the people.

There are 24 occurrences of the phrase “the Minister May” in the 38-page draft Water Act, which is a problem. And unfortunately, the Act doesn’t say that there shall or even may be a moratorium on fracking: in fact, the word “fracking” is not mentioned.

The omission of any mention of fracking will certainly come as a major disappointment to the lobby group “Don’t Frack P.E.I..” In a recent letter to TC Media by group member Andrew Lush he mentioned the premier’s pre-election comment about (possibly) including a moratorium on fracking within the Water Act, adding that: “On the website dontfrackpei.com there is a database of hundreds of damning reports on the effects of past and current fracking operations which should, in any sane world, be more than enough to put a stop to this reckless and greed-driven rush to the bottom.” I totally agree.

I have previously published an article in the Guardian in 2013 entitled “Will shale gas fracking be allowed in PEI?” offering irrefutable evidence that there is a significant risk of ground-water contamination from fracking that can neither be prevented with certainty, nor mitigated if it happens. Given that P.E.I. is 100 per cent dependent on aquifers for fresh water, there is simply no acceptable level of risk when it comes to ground-water contamination.

The provincial government has, therefore, both a moral obligation and a political duty to impose a total ban on fracking in P.E.I. (indefinitely). Such a legislative course of action represents the only reasonable policy to ensure the protection of water for present and future generations.

Islanders should be very concerned that a Wade-the-Liberal-Leader's may (uttered in the pre-election period) has not materialized into a Wade-the-Premier's shall (written into draft legislation in the post-election period). Premier MacLauchlan may call it an oversight and insert a clause saying the Minister may impose a moratorium on fracking. But that just won’t cut it! We need a shall not a may. The Water Act must oblige the Minister to impose a moratorium! There are simply no conditions, circumstances or scenarios where fracking for shale gas should ever be permitted in P.E.I. The eventual likelihood of a catastrophic event demands that the political discretion needed to permit fracking doesn't exist in law.

- Kevin J. Arsenault obtained his PhD in ethics from McGill University and lives in Ft. Augustus.