Doug Ford’s highway strategy tries to circumvent federal oversight but opponents still have a plan

“The 413 is going to get the Bradford Bypass treatment,” Simcoe County Greenbelt Coalition Executive Director Margaret Prophet repeats, after expressing the same disappointment and frustration a few weeks ago. 

She is referring to the Doug Ford PC government’s Bill 212, the Reducing Gridlock, Saving You Time Act.

One of her many concerns: it won’t reduce gridlock and it won’t save you time.

But those are the least of her worries.

The Bill was introduced by Minister of Transportation Prabmeet Sarkaria on October 21st. The controversial legislation “provides an exemption from the (federal) Environmental Assessment Act for enterprises, activities, proposals, plans and programs for or related to Highway 413” including both the early works and the project itself.

“For greater certainty, nothing in this Act prevents a person from carrying out the activities before the requirements set out in sections 4 to 9 are fulfilled including,” the Bill lays out. 

Specifically, it allows for the Highway 413 early works projects to begin, permits the government to acquire land or pursue interests in land, including through expropriation, and enables the entering of contracts related to these projects. It also allows for the issuance of any necessary authorizations for the Highway 413 project and its early works. All of this work can now be done without completing the standard environmental assessment process.

For a project of this scale, with enormous impacts on hydrology, watersheds that feed much of the GTA, species and habitats, protected Greenbelt lands, agricultural lands, surrounding air quality and too many other consequence to list, Bill 212’s sweeping circumvention of environmental protections seems torn from the pages of Donald Trump’s post-democracy America.

The Bill arrives at a critical juncture, with the possibility of an early election looming. The highway will cut through Ontario’s Greenbelt, specifically impacting the Nashville Conservation Reserve and bisect the headwaters of four watersheds including the easternmost Sixteen Mile Creek, Credit River, Etobicoke Creek, and the Humber River.

A study by Environmental Defence highlights that Highway 413 would cause over 17 million tonnes of additional carbon dioxide emissions by 2050 – when Canada is committed to reach net-zero emissions. It could also hinder the country’s ability to meet its climate commitments, particularly the 2030 emissions targets outlined in the Paris Agreement, which mandates a 30 percent reduction from 2005 levels.

Soon after the Bill was introduced, Environmental Defence formally requested that Canada's Minister of Environment and Climate Change, Steven Guilbeault, review the project and redesignate it for a federal Impact Assessment under the Impact Assessment Act (IAA).

“In the absence of an independent and thorough Federal Impact Assessment there would be inadequate assessment of water crossings and their impact on both terrestrial and aquatic wildlife including fisheries, migratory birds, species at risk and indigenous values,” the request by Environmental Defence argues.

“As noted by other regulatory agencies, it remains unclear how natural heritage features including fish and migratory bird habitat would be identified and protected before early works commence under the proposed exemption.”

Under subsection 9(1) of the IAA the Minister may, by order, designate a physical activity that is not prescribed in the Regulations. The Minister may do this, if, in the Minister’s opinion, the “physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects.” 

The request emphasized that, since construction has not yet begun, there is still time for the federal government to step in, as projects cannot be designated for assessment once work has commenced in any significant way.

But this is not a new fight for environmental groups like Environmental Defence, and this is not a new approach for the PC government to get “shovels in the ground” at all costs. 

It is history repeating itself.

On February 3, 2021, citizens groups Rescue Lake Simcoe Coalition and Simcoe County Greenbelt Coalition, represented by Ecojustice, made their first attempt at requesting a Federal Impact Assessment of the Bradford Bypass highway, another 400-series project which will connect the 400 and 404 Highways (critics have pointed out that the Bradford Bypass, just like the 413, was designed to maximize land values for developers, with little to no value for daily commuters). 

At that time, Prophet recognized the project was "heading in a dangerous direction." The coalition of 21 environmental groups, including Environmental Defence, that submitted the request to Ottawa was also aware that the PC government was considering changes to the provincial Environmental Assessment Act in order to free itself from the conditions set by the class environmental assessment (EA) imposed in 2002.

“That kind of begged the question: how will the public be able to find out what the effects of these highways actually are? And that’s why the (federal) designation requests were made,” Ecojustice staff lawyer Laura Bowman, who led the case, told The Pointer.

The Bradford Bypass will cause devastating damage to the Holland River and its surrounding watersheds.

(Joel Wittnebel/The Pointer Files)

The first Bradford Bypass highway Draft Environmental Assessment (EA) proposal was written in 1993, and was finished in 1997 when it failed to consider cumulative effects, climate change, or detailed impacts on natural heritage, migratory birds, fisheries, First Nations, and air pollution. 

By 2002, the EA was approved with conditions requiring updated studies on archaeological resources, stormwater management, groundwater protection, noise levels, and compliance monitoring. It recognized potential severe impacts on stormwater, groundwater, and fish habitat.

In 2005, the project did not proceed despite the EA being completed, primarily due to a different provincial government that introduced significant planning and environmental protection laws, including the Greenbelt Act and the Places to Grow Act, which aimed to promote compact communities and prioritize public transit over highway expansion.

In 2018, the new PC government of Ontario, with Doug Ford as premier, revived the project after nearly 20 years of inactivity, despite the fact that the conditions of the 2002 EA approval had not been met. Additionally, updates to the site conditions, which were supposed to occur every five years, had not taken place.

A sign for the proposed Highway 413 in Caledon.

(Anushka Yadav/The Pointer)

On July 8, 2020, the provincial government announced plans to exempt the Bradford Bypass from the conditions outlined in the original Environmental Assessment (EA). Throughout this period, the Ministry of Transportation (MTO) and the project consultant team, AECOM, shared information about the Bypass with municipalities but did not mention the proposed exemptions or changes to the EA Act. They did not provide comparisons between the old and new EA processes, which misled municipalities into thinking the upcoming studies would be meaningful.

Similar to the Bradford Bypass, there are no comparisons provided between the old and new Environmental Assessment processes for Highway 413. 

Despite the attempts made by the coalition, the minister of Environment and Climate Change at the time, Jonathan Wilkinson, decided not to designate the project for a Federal Impact Assessment on May 3, 2021. Wilkinson believed the existing processes at the time were sufficient to manage any concerns about the project, when they clearly were not.

Prophet recalls it was the same day when Highway 413 was designated under the Federal Impact Assessment Act even though “the conditions around the two highways, despite the length, were fairly similar.”

“It was quite a slap in the face,” she added.

On October 7, 2021, the EA Exemption regulation for the Bradford Bypass was enacted, meaning the province didn’t have to produce a Transportation Environmental Study Report (TESR) for the preliminary design or a Design and Construction Report (DCR) for the detailed design of the project. The exemption allowed the project to bypass the conditions set in the 2002 conditional approval, enabling it to move forward without assessing health impacts, climate change, or effects on Lake Simcoe.

“They call it an environmental assessment process but it really isn’t one because there is no decision at the end of it,” Bowman explained.

It was time for a second redesignation request but this time by an East Gwillimbury-based group Forbid Roads Over Green Spaces (FROGS), along with Concerned Citizens of King Township and Stop the Bradford Bypass.

The request made to the current Federal Minister of Environment, Steven Guilbeault, highlighted how the exemption change altered the regulatory landscape for the project and raised concerns about its potential adverse effects on fish habitat and greenhouse gas emissions. 

On February 10, 2022, Minister Guilbeault rejected the request. 

Within a month, an application for a judicial review was launched to challenge Minister Guilbeault's decision, and the federal court found the minister failed to adhere to the Impact Assessment Act in his refusal to reconsider the request for a Federal Impact Assessment, but stopped short of turning his decision around.

“It is not clear from the Decision that the Minister considered cumulative effects and the Agency Memo suggests that it was not considered...this fails to reveal a rational chain of analysis,” Federal Court Justice Angela Furlanetto wrote in the ruling which was released on April 20, 2023.

“The omission of any mention or justification in the Decision as to how the Minister handled the submission on cumulative effects and why it did not accept this as a material change to the request creates a fundamental gap in the Minister’s response.” 

Even though the judge, as part of the judicial review that was requested, slapped the Minister on the wrist for not properly interpreting the Impact Assessment Act, she did not rule that Guilbeault broke the law when he failed to take over the project’s assessment under the federal Act.

The decision essentially chastised the Minister but stopped short of any effort to have Guilbeault turn around his decision.

“This was a political decision,” Prophet said. “It had nothing to do with the long term care, concern for both federal issues, which includes Indigenous Truth and Reconciliation, and had nothing to do with the protection of Lake Simcoe…it was very humbling to know that there is a project that no level of government is willing to actually take a look at.”

A poll conducted for the David Suzuiki Foundation found 74 percent of respondents agreed that the Greenbelt was no place for highways. Both Highway 413 and the Bradford Bypass run through portions of the Greenbelt. 

(The Pointer Files)

In the fall of 2023, under a challenge by Alberta’s provincial government, the Supreme Court of Canada ruled the Impact Assessment Act requires revisions to rectify unconstitutional elements.  

"It made another request on the Bradford Bypass pointless because the law was found to be unconstitutional, and then that also made the highway 413 designation constitutionally vulnerable," Bowman explained. 

“And now we have this new Bill 212 which is essentially an Act to do the same thing…the difference being that it’s an Act instead of a regulation (referring to the Bradford Bypass) which is harder to challenge in court.”

Similar to the Bradford Bypass, experts and environmental organizations are criticizing the new assessment process for Highway 413 as grossly inadequate, citing a glaring lack of thorough studies and clear timelines.

Adding to Bowman’s point, Prophet said with the latest Bill the provincial government has moved away from the class EA to environmental studies, essentially controlling the process subjectively, instead of any independent oversight that could hold the government accountable.

“They can now write the test and then mark the test and determine if they've passed the test,” she said with an incredulous laugh.

Ahead of the decision that’s pending on the request made by Environmental Defence, The Pointer reached out to both the federal Impact Assessment Agency and the Ministry of Environment to inquire about whether the internal review process for redesignation requests has changed at all.

“On July 26, 2024, the Minister delegated to the President and Vice-President of Operations with the Impact Assessment Agency of Canada, the obligation to respond with reasons to a request to designate a project,” Impact Assessment Agency of Canada spokesperson Anna Pittas told The Pointer in a statement. This only applies when multiple requests for the same project have been received and a negative decision has already been issued.

The agency also said that amendments to the IAA, which came into force on June 20, restrict the conditions for a project to be designated for federal review. Only when a project is likely to cause “non-negligible adverse effects within federal jurisdiction” will Ottawa step in now. Additionally, the Minister “may consider whether a means other than federal impact assessment would address those effects.”

This greatly limits the ability to have Ottawa step in when a provincial project is questioned for potential harms.

The agency did not confirm if these changes will impact the Bradford Bypass redesignation requests.

Prophet emphasizes the need for a shift in how major infrastructure projects are approached, advocating for greater transparency. 

"We know the impacts that are going to happen because the science is clear—whether it be about air pollution, climate change, or water pollution. It's not just about a redesignation; it's about what levels of government prioritize,” she said. 

“I think this government is still focused in on a 1950s playbook without any real ideas on how to get people moving…we rather go down a route to make one party be seen more horrible than we are thinking about the goodwill of Ontario or how our future is going to look like, and that makes me the saddest of all.”

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