Ottawa to remove Impact Assessment designation from Highway 413 project, a dark day for environmental protection

In what critics are calling a political gambit, the federal Liberal government has agreed to allow the Ontario government to move forward with the environmentally destructive Highway 413 project. 

Despite questions about the proposed 400-series highway and compliance with federal laws around species at risk, fisheries, migratory birds, Indigenous territory and heritage; and its impact on Canada’s climate change plans, the Liberals, facing continued declines in the polls ahead of next year’s election, appear to have caved to pressure from Premier Doug Ford and his PC government. The decision by Justin Trudeau’s government paves the way for the controversial highway to proceed, without a rigorous review under the Impact Assessment Act.

The agreement comes as part of a legal challenge launched by the Ford government in October, attempting to pull Highway 413 out from under the jurisdiction of the federal Impact Assessment Act. 

The federal Liberal’s designated Highway 413 for an Impact Assessment in 2021, citing concerns with the proposed highway’s potential harm to species at risk and Indigenous heritage. It has failed to explain how the PC government has mitigated those concerns. 

Since 2021, the project has been at a standstill while the provincial government failed to file the necessary documents and studies to allow the assessment process to unfold.

But while no effort has been made on the part of the Ford government to prove it can mitigate the most consequential impacts of the project, a joint order was issued yesterday anyway, likely removing the project from the rigorous review process outlined under the Impact Assessment Act.

The decision is a big win for the PC Premier who has hailed Highway 413 as one of his prized initiatives since he was first elected in 2018. Last week Ford sent a letter to the federal government requesting the designation be removed so the province and federal government could work together to enhance transportation infrastructure.

“Ontario expects the federal government to ensure its legislation and regulations help build new roads, highways and public transit projects faster, instead of slowing down Ontario’s ability to build these much-needed projects,” the Premier wrote. “Specifically, the federal government must provide us the certainty we need by acknowledging that its Impact Assessment Act does not apply to Highway 413. Until we receive this certainty, Ontario will continue its ongoing legal challenge.”

The threat regarded a case at the federal court of appeal filed by the Ontario government to effectively have the Impact Assessment Act thrown out. 

On October 13, the Supreme Court of Canada issued a ruling on the federal IAA reaffirming a decision made by Alberta’s Superior Court from a challenge brought forth by the Alberta government and backed by other conservative premiers. 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.” 

Despite initial excitement from Premier Ford claiming victory over the federal Liberals, it soon became evident that the ruling — which was an advisory decision — would not have an impact on the designation of the Highway 413 project.

The proposed plan was designated for an Impact Assessment due to its possible non-compliance with federal legislation that governs species at risk, fisheries and Indigenous consultation. 

A previous investigation by The Pointer found there are 29 species at risk whose habitats will be dissected by the provincially approved 400-series highway corridor, 21 of which will be impacted by proposed interchanges. The number, while already alarming, may not include the total number of species impacted as much of the land around the route would be primed for development should the highway project move forward.

Determined to get shovels in the ground, the PC government filed for judicial review in October to have the Act sidelined so the Highway 413 project — as well as its Ontario Place development plan which had yet to be designated for an Impact Assessment — would be free from oversight under the IAA. 

Instead of waiting for the courts to hear both sides, the decision by the Liberals to cooperate with Ford removes the review and all but guarantees the construction of a highway that data show is not needed.

“And the result of them bringing this joint motion to do that is the court won’t likely hear much in the way of substantive arguments about the environmental effects of doing that — about the potential consequences of there being no designation order or prohibition in the next few months,” Laura Bowman, a staff lawyer at Ecojustice who represented Environmental Defence as an intervenor in the case, told The Pointer. “We think that it was not necessary for candidates to agree to [the order], but there was still a good prospect that the court wasn't willing to give Ontario that relief, it was discretionary for the court to give that relief. 

“We're quite upset that the federal government has done this, that they're withdrawing the designation and potentially putting federally protected wildlife at considerable risk.”

While the provincial government has been complaining about the Impact Assessment designation for years, claiming it was causing major delays to big infrastructure projects, it was the PC government’s inaction that delayed the process. In order to begin the assessment process, the provincial Ministry of Transportation was required to submit a project description which still to this day has not been submitted. 

The PCs have yet to even complete their own Environmental Assessment process but Bowman fears that the province will look to jump the gun and begin construction on lands the federal government has legislative power over.

“The only reason Ontario would be asking for the declaration was because it wanted to start doing work on highways potentially in areas where there's federally protected wildlife,” she said, noting that this would inhibit the federal government from re-designating the project under an updated Impact Assessment Act.

Bowman said that even without the designation under the Impact Assessment Act, the federal government still has jurisdictional oversight over the project through the Species At Risk Act and the Fisheries Act. But the nature of this jurisdiction and Ottawa’s ability to direct land use is now even murkier.

“But the challenge is that the Impact Assessment is the information gathering part of the permitting process; it's kind of like cutting off the head of that permitting process,” Bowman said. “I'm just hoping that by chance the wildlife will be located. And that permits will be applied for it. So it really causes a significant amount of chaos to the permitting processes and uncertainty about what wildlife surveys will actually be done.”

The federal government is currently in the process of making revisions to its Impact Assessment Act to comply with the advisory decision of the Supreme Court. Bowman said this legislation could likely be seen in the near future.

“The federal government needs to urgently introduce legislation that updates the Impact Assessment Act and that re-designates the Highway 413 project under it. Revoking the designation before a new Impact Assessment Act is in place was irresponsible and unnecessary,” Bowman said in a press release. 

The federal Impact Assessment Agency confirmed to The Pointer that the order to spring the highway free from oversight under the Act was submitted but declined a request to explain why or how the decision was made, given the provincial government never even provided the necessary documents to show if the project complies with federal legislation, stating it would be inappropriate as the matter is before the courts.

“My sense is that they're trying to use the court as an excuse for breaking away from this. And, really, it's not. Because as I said, they could have gone to a hearing, they could have let the court decide and let the court potentially use its discretion not to do any of this until Parliament enacts the new legislation,” Bowman said. “They didn't need to do it because of the court case. It appears to be a bit of a political move.”

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