PEI’s New Water Act Must Ban Fracking

At the Environmental Leaders Forum before the last election, all leaders, including Wade MacLauchlan, were asked if they would ban the fracking of shale gas in PEI if elected Premier. While all other party leaders indicated they would indeed enforce a moratorium, Wade responded by saying:

“…a moratorium [on fracking] may come through the Water Act process.”

In legalese – which is the language used when drafting statutory law or “Acts” – the word “SHALL” indicates something “must happen;” the word “MAY” – on the other hand – only signifies that the law makes it possible that something “could happen, but it’s unlikely to happen.” Why?  Because if those drafting the Water Act really wanted that “something” to happen, they would have written “SHALL” into the Act instead of “MAY.”  “MAY” is what you say when you want people to believe you’re going to do something while not really saying you will…. the word has a built-in escape hatch which gives politicians an enormous amount of discretionary power, is very often down-right deceptive, and often ends up frustrating the democratic will of the people. There are 24 occurrences of the phrase “the Minister May” in the 38 page draft Water Act, and the Act doesn’t even say that there “may” be a moratorium on fracking; in fact, the word “fracking” is nowhere mentioned.

The omission of any position on fracking will certainly come as a major disappointment to the Island lobby group, “Don’t Frack P.E.I.” In a Feb. 17, 2017 Letter to the Editor in the Guardian written by group member Andrew Lush, titled Fracking ban coming in act? he reminded the public of the Premier’s pre-election comment about (possibly) implementing a moratorium on fracking within the Water Act, and added the following:

I couldn’t agree more! I published a Guest Opinion article in Island Newspapers back in October, 2013, titled “Will shale gas fracking be allowed in PEI?” which provided indisputable evidence from experts in the field that there is a significant risk of ground-water contamination in PEI from fracking which cannot be mitigated. Based on this hard evidence, and the fact that PEI is 100% dependent on ground water for its entire supply of potable water, there is simply no level of risk of possible aquifer contamination that we can accept. We can only draw one conclusion: government has a moral obligation to impose a total ban on fracking in PEI (indefinitely) as the only reasonable social policy and future course of action.

All Islanders should be very concerned that Wade the Liberal-Leader-Trying-to-Get-Elected’s “MAY”– uttered while under the spotlight during the environmental leadership debate – has not materialized into a Wade the Premier-Drafting-a-Water-Act “SHALL” in the wording of the first-draft of the Water Act.

I’m sure Wade is fully anticipating strong criticism of this glaring absence. I suspect he will quickly call it an unfortunate oversight and promptly move to his plan “B”: promise to amend the Water Act to add a clause to say that the responsible Minister “MAY” impose a moratorium on fracking. Well that just won’t cut it! The Water Act “MUST” say that the Minister “SHALL” impose a moratorium!  There is simply no set of conditions, circumstances or future scenarios that can be imagined where fracking for shale gas in PEI should ever be permitted. The discretion to allow it should not exist in law.