Highway 413 cannot proceed if federal government ‘does its job’, says environmental group

The Highway 413 project has cleared a major hurdle, bringing it one step closer to paving large swaths of the Greenbelt, destroying habitat for at least 29 species at risk, and cleaving through over 130 waterways and wetlands that form part of the critical support network for the headwaters of southern Ontario’s major watersheds. 

On Monday, the federal and provincial governments agreed to a Memorandum of Understanding (MOU) that sets aside the previous Impact Assessment Act designation for Highway 413. The announcement ends nearly a month of speculation after a joint order was filed with the Federal Court of Appeal in March outlining how the province and federal government had come to an agreement to remove the designation, which could have led to the cancellation of the project, if the review found the highway's construction would have violated certain federal laws. The federal government initially pressed pause on the project in 2021 due to concerns the proposed highway from Milton to Vaughan would violate legislation such as the Species at Risk Act (SARA), the Fisheries Act and the Migratory Birds Act. Over the last three years the federal government has been attempting to get further information from the PCs about their plans to mitigate these serious issues. It’s unclear whether they ever received this information. 

According to the MOU, the Ministry of Transportation (MTO) and Impact Assessment Agency of Canada (IAAC) will establish a joint working group to find ways to avoid and mitigate the environmental damage from the project.

“This agreement shows Canada and Ontario’s ability to work together while recognizing their shared jurisdiction on matters to do with the environment,” Federal Minister of Environment and Climate Change, Steven Guilbeault, said in a press release. “It also ensures federal interests will be maintained on the protection of species while offering Ontario, in light of the recent Supreme Court’s decision, a greater level of clarity around the review process for the Highway 413 Project.”

In October, the Supreme Court of Canada delivered an advisory decision, cautioning that parts of the federal Impact Assessment Act were unconstitutional and without adaptation, could leave the federal government open to legal challenges. 

Disappointed that the Supreme Court did not change the designation of the 413, the Ontario government swiftly filed for judicial review, requesting the courts free the project from the requirements of the Impact Assessment Act entirely.

The MOU brings this legal drama to an end.

“Today’s announced agreement provides Ontario the certainty we need to move forward with Highway 413,” Prabmeet Sarkaria, Minister of Transportation and MPP for Brampton South, said in a press release. “I want to thank the federal government for meeting us at the table and collaborating on the environmental protections needed to get the project started. In the coming months, we will move ahead with procurement to get shovels in the ground on key interchanges of the project, bringing us one step closer to getting it done.”

While Sarkaria’s message suggests the 52-kilometre highway could move forward quickly, there are still many barriers it will need to clear. 
 

Premier Ford has been adamant about building Highway 413 since his election in 2018.

(Government of Ontario)

The project will still be subject to approvals under other pieces of legislation such as SARA. Without these approvals, the highway could not legally be built.

According to the MOU, the MTO will need to submit a number of reports to the Department of Fisheries and Oceans (DFO) and Environment and Climate Change Canada (ECCC) outlining the impacts on fish, terrestrial species and species at risk. This must be done “as early as possible” the MOU notes “to support timely discussions about avoiding, mitigating, and offsetting impacts.”

For the last three years, the Impact Assessment Agency of Canada has been attempting to get similar information from the PC government. It remains unclear whether the IAAC ever received it. 

An investigation conducted by The Pointer found there are 29 species at-risk whose habitats will be destroyed or damaged by the proposed 400-series highway route, 21 of which will be impacted by proposed interchanges. While already alarming, the number may not even encapsulate all the species impacted as much of land around the route would be primed for development should the highway be built.

One of these species is the redside dace. A beautiful species of minnow with a bold red stripe on its side that is listed as endangered under both Ontario and Canada’s species at risk legislation. A handful of experts have previously expressed to The Pointer that the redside dace is in grave danger, and that due to its intrinsic migration patterns following different waterways, a multiyear environmental assessment is pertinent to minimize risk.

The MOU references the redside dace specifically and orders the MTO to study the effects of the 413 on its habitat. To receive the necessary permits from the DFO and those required under the SARA, the MTO must meet a number of conditions, including proof that the Highway 413 “will not jeopardize the survival or recovery of the species”. 

Experts have repeatedly stated the 413 will have disastrous consequences for the redside dace that relies on coldwater streams for survival and breeding. 

“It will be amazing if redside dace in Ontario persist,” Anne Bell, director of conservation and education with Ontario Nature, told The Pointer at the time of its investigation in 2021. “An endangered species like redside dace needs the political will to say no. We need to recognize that it is these projects one after another — ‘it’s just this’, ‘it’s just that’ — which at the end of the day the cumulative impact is too much. That’s the story of our species at risk.”

The federal legislative requirements are critical as the PC government under Premier Doug Ford have actively worked to dismantle laws that protect species at risk and their habitat. The latest changes, announced in February, reduce habitat protection specifically for the redside dace and increase exemptions for development in areas of special concern.

The changes come on the back of others that have been enacted over the past six years in a coordinated attempt to remove species at risk as a barrier to development. Ontario’s auditor general has repeatedly pointed out the Ontario government’s failure to protect species at risk, instead turning the Ministry of the Environment, Conservation and Parks into a department that works opposite to its mandate and actively harms species at risk. 

“Brick by brick, we’re witnessing the provincial government dismantle the Endangered Species Act, as brick by brick new developments arise in areas that used to be homes for wildlife. This government continues to prioritize industrial resource extraction and development over all other values,” Rachel Plotkin, Boreal Project Manager at David Suzuki Foundation, said in a press release.

It’s unclear whether the impact on species at risk will be enough to stop the project. The MOU notes “nothing in this Memorandum of Understanding will predetermine the outcome of a review or imply that all effects could effectively be managed.”

Phil Pothen, Counsel and Ontario Environment Program Manager with Environmental Defence, is not ruling out the federal government redesignating Highway 413 under the revised Impact Assessment Act.

“There is every reason to expect that it will be quickly re-designated,” he said. “We don't have any information to suggest that when the new Impact Assessment Act is in place, when the rules are fixed, to comply (with the Supreme Court decision), that the assessment will not continue under that new law,” Pothen told The Pointer. 

He says the MOU does not preclude the government from fully designating the project under the new Act. 

Pothen points to one section of the MOU that outlines how the agreement does not supersede any “jurisdiction, right, power, privilege, prerogative or immunity” and “nothing in this Memorandum of Understanding will prejudice the implementation of either Party’s jurisdiction or legislative authorities.” 

 “This statement underlines just how many ironclad grounds there are for the federal government to act in its areas of jurisdiction and to proceed with re-designation in particular,” Pothen states in a press release. 

The Pointer reached out to both the Impact Assessment Agency and the Federal Ministry of Environment and Climate Change, but neither provided a response on when an updated Act could be released and whether the project would be redesignated.

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 yet to explain if and 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 Pothen predicts that when a new Impact Assessment Act is released on the federal stage, the project will immediately be redesignated. 

Regardless of the decision on the Impact Assessment Act, Pothen said the project still will not be able to move forward, “if the federal government does its job.”
 

At least 29 species at risk will be impacted by Highway 413.

(Joel Wittnebel/The Pointer)

The public also has the opportunity to stop the project. 

The 2026 provincial election will see an intense battle play out for provincial leadership. All three opposition parties have made strong public statements in opposition to the proposed Highway 413.

“The 413 is a sprawl supercharger that will cost Ontarians at least $10 billion and pave over 2,000 acres of prime farmland. And just like the Greenbelt giveaway, it has nothing to do with helping out everyday Ontarians. Nothing to do with boosting quality of life or delivering solutions to the housing crisis,” MPP Mike Schreiner, Leader of the Ontario Green Party, wrote in a press statement in December. “It’s about rolling out the red carpet when wealthy insiders come calling.”

Sentiment from the NDP is the same.

“Let’s be clear — Ford’s proposed Highway 413 is not about the public interest — just as with the Greenbelt scandal, it’s more about boosting the profits of land speculators than connecting people and communities,” MPP Sandy Shaw, Critic for Environment, Conservation and Parks, said following the submission of the joint order.

While the provincial Liberals have not put out a statement on the project in the past few months, new leader Bonnie Crombie has long been a voice of opposition to the proposed highway. Under her mayoral leadership, the City of Mississauga passed a motion opposing it in 2021. In January, before the former mayor officially left for her new position as leader of the Ontario Liberals, Crombie challenged Ministry of Transportation officials on cost estimates, Greenbelt protection and promises to the public. Given the gridlock present through much of the GTHA, she argued the money would be much better spent on enhancing public transportation.

Along the Highway 413 route, signs have been defaced in opposition to development.

(Photo submitted)

Recent events have shown the Ontario public is not particularly happy with the environmental decision making of the PC government. Public support for Premier Ford took a severe hit following the Greenbelt scandal, dropping to 28 percent, according to an Angus Reid poll — it has since risen to 34 percent.

A poll released in January by the David Suzuki Foundation found that the majority of Ontarians (74 percent) do not agree with building a new 400-series highway through the Greenbelt. The same percentage — approximately three quarters — said they were more likely to support a government that kept highways out of the Greenbelt and 79 percent said the government should instead be pouring more money into public transit.

The likelihood of the PCs inflicting any major environmental damage is very slim, Pothen said.

The one thing that could begin in the interim is the expropriation of land along the proposed route. Pothen said that this would be a “huge gamble with public money”, but he would not be surprised if this process began.

Expropriation powers allow governments to purchase land at market value without consent of the owner for the purpose of installing public infrastructure. Given the rapidly rising costs of land, this process would dramatically add to the cost of the project, which is already estimated in the billions of dollars. 

The recently tabled Get It Done Act, if passed, will allow the government to begin expropriating land before obtaining all the necessary approvals, and will prevent subsequent court challenges. While it is not explicitly stated in the legislation, it clearly benefits projects like Highway 413 and the Bradford Bypass.

“If the project actually went to a stage where a lot of environmental damage happened before the next election, it would really mean that there has been some kind of outright betrayal of environmental voters by the federal government,” Pothen said. 

This is why he said it is crucial that the public continues to pressure the federal government to hold true to the commitment it made in 2021 and redesignate the 413 when the new Act is instated.

“There's no reason to expect that they'll break their promises,” he said. “But certainly we expect the same deep-pocketed land speculators who have been leaning on the provincial government to be making rounds with federal cabinet as well. They're hoping to get them on board.”

Email: [email protected]

Twitter: @rachelnadia_

At a time when vital public information is needed by everyone, The Pointer has taken down our paywall on all stories to ensure every resident of Brampton, Mississauga and Niagara has access to the facts. For those who are able, we encourage you to consider a subscription. This will help us report on important public interest issues the community needs to know about now more than ever. You can register for a 30-day free trial HERE. Thereafter, The Pointer will charge $10 a month and you can cancel any time right on the website. Thank you