PCs make another move to greenlight environmentally disastrous Highway 413

After an October Supreme Court ruling found parts of the federal Impact Assessment Act to be unconstitutional, the PC government is doubling down and asking the courts to free its Highway 413 project from having to undergo the rigid environmental assessment the Act requires.

In a press conference last week, Ontario Attorney General Doug Downey announced the government was “taking immediate legal action to bring certainty so that we can get shovels in the ground on infrastructure projects without delay.” 

The judicial review applications, shared with The Pointer by the Attorney General’s Office, seek to remove two of Premier Doug Ford’s highly controversial projects: Highway 413 and the redevelopment of Ontario Place from under the jurisdiction of the Impact Assessment Act. 

On October 13, the Supreme Court of Canada issued its ruling on the federal IAA reaffirming a decision made by Alberta’s Superior Court. The ruling found that sections 81 and 91 of the Act, which deal with projects under federal jurisdiction, are constitutional, but the “designated projects” section is not. The Court found this section, which outlines the scheme for how the federal government chooses projects for impact assessments, is too broad and could lead to federal intervention in areas outside its jurisdiction. 

“Environmental protection remains one of today’s most pressing challenges. To meet this challenge, parliament has the power to enact a scheme of environmental assessment,” Chief Justice Wagner wrote for the majority in the 5-2 decision. “Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution.” 

Federal Environment Minister Steven Guilbeault is the minister responsible for administering the Impact Assessment Act.

(Wikimedia Commons)

In response to the ruling, Environment Minister Steven Guilbeault stated the government respected the court's decision and would work under its guidance to improve and update the legislation, committing to a concrete plan by the end of the year. 

"We accept the court's opinion. It provides new guidance on the Impact Assessment Act, while explicitly affirming the right of the government of Canada to put in place impact assessment legislation and collaborate with provinces on environmental protection," he said. “We will now take this back and work quickly to improve the legislation through Parliament. We will continue to build on 50 years of federal leadership in Impact Assessment.”

The decision from the Supreme Court is an advisory ruling, meaning it does not force the feds to make any changes to the Act, rather, it serves as a warning that failure to do so could result in further legal challenges.

The Ontario government has claimed the response from the federal government has only caused “unnecessary confusion” and is calling for the “designated projects” section of the Act to be scrapped in its entirety.

“A binding declaration of invalidity is necessary to provide certainty to all proponents of projects, including the Province of Ontario, potentially subject to the Act and Regulations,” the application for judicial review states.

The move is a clear attempt by the PC government to move ahead with its prized Highway 413, a project currently under review by the Impact Assessment Agency, something that has not changed after the Supreme Court decision. 

The proposed Highway 413 is a multi-lane 400 series highway that would run 59 kilometres from Milton, up Brampton’s west side, through the southern reaches of Caledon and the Greenbelt, and into Vaughan. In 2021, the federal government listed the project for a potential Impact Assessment due to its impacts on three federally listed species at risk. For the past two years the project has been in limbo as the Agency waits on the Initial Project Description (IPD) from the Ontario Ministry of Transportation. 

The PC government claims the Impact Assessment process has delayed its keystone infrastructure project—one Premier Doug Ford campaigned on when he won a second term last year. 

“For over two years, Ontario has been engaged in back-and-forth discussions with the Agency which had numerous follow-up questions and requests for information or revisions that are not connected to the reasons why the Minister designated the Project,” the application for judicial review states, adding that the project is of “highest priority to the province” and has faced “significant delays”.

“Ontario should not be deterred from taking action to build a provincially-owned highway on provincial land by an Act that the Supreme Court of Canada has found to be unconstitutional.”

Referring to the entirety of the Act as unconstitutional is blatantly misleading, as the Supreme Court only ruled parts of the Act as such. The judicial review application by the PC government also fails to recognize that the Supreme Court reaffirmed the portions of the Act dealing with projects impacting federal lands to be constitutional. 

The David Suzuki Foundation (DSF) Climate Change and Transportation Policy Analyst Gideon Forman stated that without rigorous assessment, Highway 413 will have “very, very serious” consequences for the natural environment. 

“The proposed highway would create health-harming air pollution and carbon emissions, destroy parts of the Greenbelt, forests, and prime farmland, and waste billions of public dollars that could be spent on healthier and more effective transportation solutions for people in Ontario, including improved intercity transportation and urban bicycling infrastructure,” Samantha Green, Canadian Association of Physicians for the Environment (CAPE) president-elect, told The Pointer. 

Many species with habitat or breeding grounds along the route of Highway 413 route are threatened or endangered.

(Joel Wittnebel/The Pointer)

A previous investigation by The Pointer found that there are 29 species at risk living within the 2,000 acres that would be paved over to construct the highway, pushing some closer to threatened status or even extinction. Analysis by Environmental Defence found that the creation and use of the highway will contribute an additional 17 million tonnes of greenhouse gas emissions to the atmosphere by 2050, resulting in $1.4 billion in damages. 

Polling by EKOS for the DSF in 2022 found that 76 percent of Ontarians believe the Greenbelt is no place for a new four to six lane highway. 

“It is important to remember that the Ontario government’s framing of the Highway 413 scheme as a solution to gridlock is false,” Phil Pothen, Ontario environment program manager at Environmental Defence said in a statement following the announcement of judicial review. “Research shows that building 413 would have trivial impacts on travel times for existing GTA residents. In reality, the Highway 413 scheme is just another part of the same larger real estate and land speculation scandal that led to the Greenbelt removals.”

The second application for judicial review submitted by the Ford government is in relation to the controversial redevelopment of Ontario Place. The $650 million deal with Austrian-based company Therme, on a 95-year lease, could see the construction of a spa and waterpark in addition to a massive underground parking garage. The parking structure would be owned by the Province and be situated entirely on public land.

Public consultations saw the attendance of over 1,200 individuals sharing concerns about how the redevelopment would impact the environment, including the loss of greenspace. NDP MPP Chris Glover previously stated that at least 850 trees would be removed while animals like mink and beaver will be killed off. The PC government is relying on an environmental assessment for the redevelopment effort that does not even take into account the property upon which the Therme proposal will be built, only the public lands that surround it. 

“Ontarians are right to see this for what it is: a clumsy attempt to peddle yet another poor decision made in some back room without input from the actual stakeholders – the people of Ontario,” Green Party leader Mike Schreiner said in September.

Many of the Ontario government’s proposed projects in the GTA will pave over vital farmland, a resource the province is already losing 319 acres of per day.

(Alexis Wright/The Pointer)

When the Supreme Court decision was released, the Ontario government celebrated the decision, claiming it eliminates duplicate assessments.

“We will continue to follow our robust and world-leading environmental assessment processes and respect our duty to consult obligations,” Downey stated. Ford also called Ontario’s process “rigorous”. 

It’s a statement that is not supported by PC action on many of its large infrastructure projects. Along with the flawed environmental assessment process for Ontario Place, similar questions are being raised with other large initiatives, like the Bradford Bypass.

The Bypass is a proposed 16 kilometre, 400 series highway connecting highways 400 and the 404 in the northern reaches of the GTA. Slicing through the Holland Marsh, consisting of wetlands and fertile agricultural land within the Greenbelt, the bypass has a laundry list of environmental impacts threatening species at risk, water quality and Indigenous land. Despite ever changing ecosystems and significant developments in ecological sciences since the 90s, the PCs are relying on an outdated environmental assessment completed over 25 years ago, in 1997, to inform the project. 

“I don't see why we would trust or rely on the Province of Ontario, when it comes to the environment,” Forman said. “They have a dismal record on the environment.”

It is a feeling shared by many Ontarians. An EKOS poll found that 65 percent of those surveyed said Ford has done a poor job of protecting the environment, 69 percent said the Greenbelt needs more protection, and 75 percent said the provincial government needs to treat climate change as an emergency.

The results of the poll come after Ontarians have watched for four years as the PC government has completely stripped the province’s environmental protection regime to the bone, leading to an increase in GHG emissions, loss of species habitat and a dismantling of systems designed to protect our water and wetlands.

According to the Independent Electricity Systems Operator, the province is on track to see a 600 percent increase in greenhouse gas emissions from electricity generation alone when compared to 2017 levels. In 2018, the PCs first year in office, total emissions jumped 10 megatonnes, making up two-thirds of Canada’s 15 megatonne increase despite only housing 40 percent of the population. The PCs have done little to scale back this increase, in fact, Ford has actively taken efforts to push Ontario toward GHG increases. In 2021, the PCs challenged the federal government’s carbon pricing scheme all the way to the Supreme Court — a $30 million dollar lawsuit the PCs lost.

Yet even with the evidence from scientific bodies and the ruling of the courts, the PCs continue to ramp up natural gas usage, contributing to the further emissions. In its latest attempt, the Ford government has backed Capital Power which has proposed an expansion to the Goreway gas plant in Brampton and will allow emissions to increase by 80 percent.

To further promote a reliance on natural gas generation, Ford has been cancelling contracts for renewable energy generation since first elected in 2018. Documents released in 2019 showed that during his first year in power, the conservative premier cancelled 750 renewable energy contracts signed by the previous Liberal government in a move Ford said he was “proud” of. The cancellation of the contracts cost Ontario taxpayers $230 million. 

Also in his first year in office, Ford scrapped incentives for electric vehicles saying they were just an excuse for rich people to buy Teslas. But the move had a profound influence. Following the cancellation of the rebate, EV sales dropped 50 percent across the province.

 

Map of the 15 parcels of land originally slated for removal from the Greenbelt in November 2022.

(Government of Ontairo)

Perhaps the most damning example of the PCs mismanagement of Ontario’s environment is the year-long Greenbelt scandal in which Ford’s government removed 7,400 acres from the protected greenspace to build 50,000 homes despite the province’s own housing task force concluding there is more than enough land within existing urban boundaries to construct the 1.5 million homes by 2031 legislated under Bill 23. Throughout the Greenbelt scandal—now under investigation by the RCMP— the government made the move to force urban boundary expansions on municipalities and overhauled the Wetland Evaluation System making it easier to build in sensitive areas. While both the Greenbelt land grab and urban boundary expansions have been reversed as a result of mounting public and political pressure, the PCs continue to force unsustainable development through the use of Minister's Zoning Orders and other backhanded techniques.

All of this evidence has been corroborated by reports from former Ontario Auditor General Bonnie Lysyk who has repeatedly highlighted the PC government’s lackluster ability to protect the environment. 

In 2021, Lysyk published a scathing audit on the status of species at risk determining that the committee tasked with advising the province on at-risk legislation is dominated by industry stakeholders and that the Province has never denied an application to harm a species at risk. In fact, permits to harm species at risk increased 6,000 percent between 2008 and 2021.

In August, Lysyk released her special report on the Greenbelt which detailed the $8.3 billion dollar land grab that threw out environmental protections in efforts to benefit some of the nation’s wealthiest developers. 

“What reason would you have for trusting the interior government when it comes to protecting the environment? So we clearly need somebody else to step in,” Forman with the David Suzuki Foundation said. 

This all comes at a time when the world is reaching environmental “tipping points” as noted by the United Nations’ research arm Wednesday ahead of the international COP28 conference, beginning in Dubai at the end of this month. 

Over extraction and overuse of resources, coupled with climate change, has brought the planet to the brink of six tipping points which “could trigger abrupt changes in our life-sustaining systems and shake the foundation of societies,” the UN University’s Institute for Environment and Human Security (UNU-EHS) stated.

The latest warning from the UN came a day after another ominous caution from a team of 12 international researchers who published in the journal Biosciences that the Earth is reaching “unchartered territory” and that climate change could threaten the lives of six billion people this century. 

Despite the judicial review challenge from the PC government, Shaun Fluker, associate professor of law, and barrister and solicitor for the Public Interest Law Clinic at the University of Calgary, who provides legal advice to the Canadian Association of Physicians for the Environment, said the move appears to be more politically motivated than a genuine legal case. 

“It must be remembered that the Supreme Court of Canada was very clear in stating that there is ample constitutional basis for the federal government to have EA laws in place. The issue was that the IAA went too far in some very specific but not fundamental regards,” he said. “As such, the IAA has very strong constitutional footing to carry on in amended form that still requires robust federal assessment.”

Forman said he is not concerned about the Ontario government’s chances of success. Federal Environment Minister Guilbeault said he will be making precise “surgical” changes to the Act in order for it to fall in line with the federal government’s constitutional powers. 

As for Highway 413, Forman said there is very clear reason for the feds to be involved under the Species at Risk Act. 

“I think the federal government will make some changes to the Impact Assessment Act. And they will go ahead with an impact assessment for Highway 413, which makes eminent good sense,” he said. “I am hopeful that the federal government will do this impact assessment and they will find in their assessment just how harmful the highway is, like people have been saying, and that it will be stopped.”

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