Many people have been working very hard to protect the well and the hard work of the SOS team of volunteers uncovered some important legal facts that need to be reviewed by a lawyer.
ITEMS STILL IN QUESTION
THE LEGISLATION
Small Drinking Water Systems
The Hamilton Conservation Authority indicates it has been advised by the City of Hamilton Health Services that the Ancaster Well is a Small Drinking Water System as defined under Ontario Regulation 319/08 of the Ontario Health Protection and Promotion Act. However we believe this interpretation is too broad and that Ontario Regulation 319/08 is meant to apply to more formal water distribution systems that are connected to domestic or commercial plumbing systems. Paragraph 6(2)(b) of the Regulation reads:
Every owner and every operator shall,
(b) ensure that all water provided by the system to the point where the system is connected to a user’s plumbing system meets the requirements established by this Regulation or under the Ontario Drinking Water Quality Standards
The Ancaster Well is not connected to any user’s domestic or commercial plumbing system.
Flow RateSmall Drinking Water Systems have a higher flow rate than the current Ancaster Well. The relevant language in subsection 1(2) of the Regulation states:
a drinking water system […] that is not capable of supplying drinking water at a rate of more than 2.9 litres per second will only be considered to be a small drinking water system if the system serves a public facility. O. Reg. 319/08, s. 1 (2).
The Ancaster Well does not serve a public facility.
Intent of Legislation
We believe an interpretation that would apply this legislation to the Ancaster Well is too broad. As a matter of statutory interpretation this legislation is intended to regulate humanly manufactured water distribution systems. The rationale is that if one engineers a water system one is responsible for safely maintaining it. The Ancaster Well water flows naturally from the ground under its own pressure in its natural unadulterated form. We believe it is not the aim of this legislation to regulate naturally flowing, untreated mineral water from deep source wells such as the Ancaster Well. SOS urges councillors to come forward to redress this overstep as our elected representatives and protect this valuable natural water source.
Regulation 319/08 can be found at https://www.ontario.ca/laws/regulation/080319
FIRST NATIONS
It has come to our attention that a number of Haudenosaunee families use the Ancaster Well. In the spirit of the recommendations of the Final Report of the Canadian Commission on Truth and Reconciliation, we respectfully request that the HCA initiate a consultation with the Haudenosaunee of Six Nations as is morally and legally appropriate before taking any decision or action affecting the continuation of the availability of this water source.
RESTRICTIVE COVENANT
SOS has reviewed the transfer documentation for the land where the Ancaster Well is located. The relevant language is below with a full abstract included as Schedule A.
Schedule to Transfer provides as follows:
“WHEREAS it is recognized that it is appropriate that there be certain restrictions placed on the lands being transferred herein, the Transferor and the Transferee covenant and agree as follows:
1. That the Transferee will maintain in perpetuity continued public access to well number 8, located on the land being transferred herein; 2. That the transferee will not charge a user fee for public access to the water supply available at well number 8, but may, instead, install a voluntary contribution box at or in the vicinity of well number 8; and 3. The Transferee assumes all responsibility and liability, if any, related to the water supply produced by well number 8.”
