Case for Bradford Bypass ‘thin at best’: environmental groups take federal environment minister to court 

With more at stake than ever before, environmental organizations are challenging a decision by Minister of the Environment and Climate Change Steven Guilbeault to not designate the Bradford Bypass for a federal impact assessment, stating the decision lacked “transparency, intelligibility and justification.”

The application for judicial review, filed by seven environmental groups, marks the latest in a long saga that has pitted residents, advocates and experts against an incessant push by Premier Doug Ford and his PC government to get shovels in the ground on the highway project ahead of the June 2 provincial election. An “early works” report released in February details how construction can soon begin on a bridge crossing to support the corridor. This work could begin before studies are completed for the entire project. 

The move by advocacy groups to have the federal courts decide the future of the Bradford Bypass came after Ottawa declined for the second time in about a year to sweep the project under the jurisdiction of the federal environment ministry under the Impact Assessment Act, which could have forced the provincial government to either mitigate environmental and ecological impacts, or even scrap the project altogether. 

Studies have shown the Bradford Bypass would soon become as congested as the 401, above, while causing harmful pollution to the local airshed and surrounding ecosystems.

(Flickr)

The judicial review application argues the decision by the federal ministry not to review the Bradford Bypass under the Act, fails to consider a number of potentially destructive outcomes, which the federal law is meant to help avoid.

The 16-kilometre bypass is planned to connect highways 400 and 404 just south of Lake Simcoe—running directly through the provincially significant Holland Marsh Wetland Complex. It’s the largest wetland within the Lake Simcoe Watershed—and performs vital naturally occurring ecosystem functions such as flood mitigation, water filtration, and habitat and breeding protection for countless species, including many that are listed as at risk. 

The destruction the highway will wreak on this wetland and Lake Simcoe flies in the face of provincial, national and international biodiversity targets, like those laid out in the United Nations Convention on Biological Diversity (which Canada has been a signatory to for more than 20 years), along with provincial and national climate change targets. 

Despite overwhelming evidence of potentially devastating environmental and ecological impacts, and the outdated environmental assessment (completed in 1997), the PC government has consistently ignored the concerns of local residents, advocates and experts. 

A recent poll of voters in three key ridings around Lake Simcoe, completed by Oracle Research and commissioned by Lake Simcoe Watch, found that 48 percent of residents do not support the Bradford Bypass, compared to 29 percent who want the highway and 23 percent who are undecided. 

The poll results are drastically different from a 2016 poll completed by the Town of Bradford West Gwillimbury which claimed 85 percent of residents wanted the highway.

Local advocates turned to Ottawa for assistance, looking for the project to be designated under the federal Impact Assessment Act—the GTA West Highway, or 413, is currently being reviewed by the federal ministry after some of the same groups successfully filed submissions for a project designation under the Act. 

If the bypass is eventually designated, it would force the Province to address any environmental concerns raised by Ottawa, and come up with plans to mitigate those impacts. If the federal government isn’t satisfied, it can step in and conduct its own environmental assessment, a process that is more stringent than the weakened provincial Environmental Assessment Act. The PC government has exempted the Bradford Bypass from all requirements under the Act, meaning it will not undergo all the normal studies and assessments meant to ensure environmental and ecological damage does not occur. 

The Bradford Bypass was previously under consideration by the Impact Assessment Agency in 2021—at the same time as the GTA West Highway—and while the federal minister at the time decided to intervene with the project that would cut across much of Peel, citing concerns to at-risk wildlife, he did not do the same with the Bypass. That decision was made despite the involvement of 23 organizations and petitions that included 18,000 signatures from residents demanding Ottawa intervene. 

But when the PC government recently changed the environmental assessment rules to exempt the Bypass from all the usual requirements, environmental advocates tried again, arguing federal government intervention is required due to the tactics of the Doug Ford PC government which is pushing the plan forward ahead of the June election without proper environmental studies, work to protect species at risk, and mitigation to reduce the impact on Lake Simcoe. Provincial and national climate change targets will also be greatly jeopardized, they argue. 

“In light of the exemption, it is impossible that the provincial process could result in the identification of meaningful mitigation measures in the form of any non-highway or significant route alternatives to reduce greenhouse gas emissions,” the designation request states. This second failed attempt to get a federal impact assessment designation was sent in November last year by a trio of local advocacy groups: Forbid Roads Over Greenspaces (FROGS), Stop the Bradford Bypass, and Concerned Citizens of King Township.

“(A) federal impact assessment can play an important ‘safety valve’ role by ensuring the full extent of environmental impacts are assessed before the project moves forward,” stated Ian Miron, lawyer for Ecojustice, which is representing the organizations in the case.

In February, Environment Minister Steven Guilbeault informed the parties he would not be stepping in, claiming nothing had materially changed since the first request for a federal impact assessment had been denied.

The new strategy is to use the federal court to force the Liberal government to change its decision. If successful the legal tactic could result in the Bradford Bypass being reviewed by the federal ministry under the Impact Assessment Act. The collective effort to ensure responsible planning around the sensitive Holland Marsh wetland is being led by a combination of local and provincial advocacy groups, as well as national organizations committed to environmental protection.

“Ensuring that the Minister fully and fairly considers requests for federal impact assessments on their merits is all the more important here, where the Ontario government has recently gutted its environmental assessment laws and policies and has now exempted the Bradford Bypass from any meaningful assessment or public consultation despite the potentially severe impacts of the project on Lake Simcoe, the Holland Marsh, and public health."

In February, Guilbeault stated there had been “no material change” to the project from when the Impact Assessment Agency first studied it earlier in 2021. 

The environmental groups are now challenging this claim in court. 

“The purpose of this litigation is to hold the federal government accountable for the proper review of the impacts of the proposed highway, which is needed to understand the full impact of the proposed project on vital habitats, wildlife and watersheds in the area,” a joint press release states. “The case for building a highway is thin at best and we must better understand the impacts of the project on natural heritage, migratory birds, fisheries, greenhouse gas emissions, air quality and First Nations cultural heritage.”

Local historians and advocates have already proven that the route of the Bradford Bypass will run directly overtop of the Lower Landing, a historic site that past provincial heritage officials have labelled as 95 percent more significant than any heritage/archaeological site in Canada. 

The groups argue that the Minister's choice to not designate the project was “unreasonably” based on the decision of the previous minister, Jonathan Wilkinson, and “not based on evidence.”

“The second request noted that there were significant changes to the context of the project,” states Bill Foster, Chair of FROGS, in the joint press release. “Including a significant decline in popular support for the project, and a seriously weakened provincial Environmental Assessment process that fixes the route based on 1997 information. As a result MTO is now no longer required to consider reasonable alternatives to or alternative locations for this highway.”

Bill Foster, chair of local organization Forbid Roads Over Greenspaces (FROGS) says the Bradford Bypass is not needed and will do nothing to solve the area's traffic issues.

(Photo by Joel Wittnebel/The Pointer)
 

The federal government’s apparent unwillingness to get involved with the Bypass project has been questionable from the outset. The first designation request—while not a part of the judicial review—raised several glaring questions when it was turned down. 

The exact same concerns listed as reasons for designating the GTA West Highway for a potential assessment—species at risk, particularly the red-headed woodpecker and western chorus frog, along with concerns about the impact on Indigenous land—very much exist with the Bypass as well. Perhaps even more so with the new found evidence regarding the Lower Landing—something the PC government has ignored since The Pointer’s initial reporting. 

“These decisions should be based on science, not politics, and this sets a dangerous precedent,” states Katie Krelove, Ontario campaigner for Wilderness Committee, one of the groups involved with the suit. 

The Lower Landing, a historic meeting place and former naval base, sits directly in the path of the Bradford Bypass.

(Image from Royal Ontario Museum) 

According to the Impact Assessment Agency, the impacts on heritage and the exemption the PCs gave the project, were all considered as part of the report provided to the federal minister.

“Since the former Minister posted his response, there has been no new information or material change to the project that could change the project’s potential to cause adverse effects in areas of federal jurisdiction,” a spokesperson for the Agency told The Pointer. 

In their request for judicial review, the environmental groups challenge this statement, arguing that there is no legal precedent, or understood meaning of the term “material change” and that FROGS, in its request for designation, was not aware it would need to meet this threshold in order to trigger an assessment. 

“There is no support in the Act for requiring a threshold of ‘material change’ before considering subsequent requests,” the request for judicial review states, adding that this “unreasonably fetters” the Minister’s decision making, and may actually contravene portions of the Impact Assessment Act, which allow the Minister to designate projects if they believe there will be impacts on federal jurisdiction. 

“There are errors of fact in the Minister’s decision that cannot be allowed to go unchallenged,” states Tim Gray, the executive director of Environmental Defence in the joint press release. “For the sake of Canada’s environment and the communities dependent on it, we must make sure that destructive projects, such as bulldozing a super-highway through one of Ontario’s largest wetlands, receive a proper and thorough review.”

The PC government has made it clear, if it is reelected in June, Ontario’s future will be paved with highways. In a recently released transportation plan, the GTA West Highway and the Bradford Bypass are two of the first projects mentioned in Transportation Minister Caroline Mulroney’s opening statements. In fact, the word “highway” is mentioned over 100 times in the 68-page document. The term “public transit” appears only four times; “subway”, 24; and “climate change”, 16. 

“We’re building new highways, like Highway 413 and Bradford Bypass because without them, already intense gridlock will more than triple within as many decades,” she states. 

It’s unclear what evidence Mulroney relies on to make this statement. Transportation studies released by the Province in relation to the Bypass show it will do next to nothing to solve the area’s traffic issues—despite Mulroney’s continued false assertions that it will. 

According to MTO’s own studies, the Bypass is expected to see similar congestion levels to Highway 400 by 2041, and it will do absolutely nothing to solve congestion issues on Highway 400 and 404, in fact, congestion will actually get worse on these major highways by 2041, even if the bypass gets built, according to the provincial ministry’s own research. 

Data from the Ministry of Transportation show construction of the Bradford Bypass will do very little to solve congestion issues in the area.

(MTO) 

Along with the Bradford Bypass the Province is planning significant widening projects for Highway 401 through Toronto—despite decades of evidence and billions of dollars invested in this very same effort with next to no results—as well as a Bypass connecting Hamilton and Guelph, and further extension of Highway 404 around Lake Simcoe. 

Environmental groups fear an already degraded Lake Simcoe could be completely destroyed by increased salt levels from the Bypass and other proposed highways. 

“We already know that highway crossings create salt hotpots in our freshwater rivers. Lake Simcoe is on a trajectory to reach ocean level salinity in 37 years. This is extremely worrying for our members,” states Rescue Lake Simcoe Coalition Executive Director Claire Malcolmson. “We need all levels of government to do better, and we need to know that the federal government will step in when their areas of jurisdiction, like endangered species and climate, will be negatively affected.”

In large part, the Province is already aware of the potential devastation the highway will cause, a snapshot of which was captured in that 1997 EA Bowman referred to. Along with the loss of crucial spawning habitat for fish by crossing 28 different waterways, the highway would destroy 22.1 hectares of “higher quality woodlands”, 17.2 hectares of the Holland Marsh, 9.5 hectares of provincially significant wetlands, 32.7 hectares of wildlife habitat, 190.37 hectares of “higher capacity mineral soils”; and 154.3 hectares of active agricultural production. The highway will also “severely impact” the quality and quantity of surface water and groundwater. It means about 800 football fields of valuable environmentally sensitive land will be either completely destroyed or degraded by the highway. 

A previous analysis by The Pointer, using data from the Province’s Natural Heritage Information Centre (NHIC) found 11 different species at risk in the path of the Bradford Bypass, including six threatened species, two endangered, two listed as special concern and one “restricted species”. These species are those that are either sensitive to commercial exploitation, like trophy hunting, or their habitat is so threatened, that their locations are kept secret from the general public as to avoid disturbance. There are also six different nesting colonies for a variety of water and wading birds directly in the highway’s path. 

This is by no means a definitive list. Expert sources have told The Pointer the number is more than likely much higher as animals move through these green space corridors, of which the Holland Marsh wetland complex is one of the most significant in the area. The Bradford Bypass would essentially be a four-lane highway cutting it in half. Many of these species, particularly threatened and endangered turtles, like the blandings turtle which has been spotted just north of the route, are extremely vulnerable to road mortality, with provincial documents noting it is the most serious threat to these animals. 

“The federal government says it’s committed to mitigating climate change and halting the accelerating loss of biodiversity. Are these just hollow promises?” asks Anne Bell, director of conservation and education at Ontario Nature. “The need for an impact assessment is painfully obvious in this case—a no-brainer if the government stands by evidence-based decision-making.” 

Over the last year, many of the municipalities in the area of the Bypass have begun to ask questions of their own. 

Since May 2021, Barrie, Newmarket, Brock, Scugog, Ramara and Adjala-Tosorontio—a group of municipalities that govern approximately 300,000 residents around Lake Simcoe—have passed motions demanding further study on the project before any more concrete steps are taken, marking some of the strongest political pushback to the Bradford Bypass since the idea for a highway through the Holland Marsh was first conceived in the 1970s. At the Town of Innisfil, the vote to pass Bradford West Gwillumbury’s motion supporting the highway lost on a tied 4-4 vote. 

Scugog, Ramara, Newmarket and Adjala-Tosorontio all explicitly requested the federal government intervene in the project to conduct an environmental impact assessment.

The letters from local residents have also been pouring in to local councils in the area, demanding further study or a cancellation to the project altogether. 

“It would be foolish and naïve to believe the Province of Ontario will uphold environmental protection when they have changed almost every piece of Ontario’s environmental legislation to its detriment,” one resident wrote. 

“We are insistent that alternatives to the highway must be properly studied. Much cheaper investments can be made in regional road upgrades, investment in GO transit and regional transit. Unfortunately, the province is not considering alternatives to the highway, nor did they consider the transit investments as a means to reduce congestion in the 1997 EA. This sets up the entire highway project to be another 407 boondoggle,” wrote another. 

“It is mind-boggling in an environmental crisis that any planning department "Planners" would support the destruction of lakes, wetlands, greenbelt, any green spaces. Any persons who do support such environmental destruction proves their own lack of education in environmental science and urban planning for the 21st century,” wrote another. 

Premier Ford has clearly shown he believes the exact opposite. 

“Our government is saying ‘yes’ to building the roads, highways and public transit needed to unlock our full economic potential and keep our province moving forward,” said Premier Doug Ford. “As we attract more skilled workers to Ontario, we need to build more roads and highways to keep up with population growth. Highway 413 and the Bradford Bypass are a critical part of our plan to build Ontario as we connect communities, reduce gridlock and get goods to market sooner,” he states in a press release. 

According to Zoryana Cherwick, a spokesperson for Ecojustice, the timeline for the judicial review remains uncertain, with a hearing potentially this summer. 

Email: [email protected]

Twitter: @JoeljWittnebel 

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