Joel Wittnebel-Local Journalism Initiative Reporter
Mar 20, 2022
– Brampton, Mississauga
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.”
Seven environmental groups have filed a judicial review application. This is the latest chapter in a long-running dispute that pitted residents, advocates, experts and residents against an incessant push from Premier Doug Ford and his PC government, to get shovels in concrete on the highway project before the June 2 provincial election. An “early works” report released in June details how construction can soon begin on a bridge crossing to support the corridor. This work could be started before studies are completed on the entire project.
Advocacy groups moved to have the federal courts decide the fate of the Bradford Bypass after Ottawa declined, for the second consecutive year, to place the project under the jurisdiction the federal environment ministry under section of the Impact Assessment Act. This could have forced Ottawa to reduce or scrap the project.
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 request argues that the federal ministry’s decision not to review Bradford Bypass under the Act fails to take into account a number potential destructive outcomes that the federal law is intended to 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 highway’s destruction will cause havoc on this wetland as well as Lake Simcoe. This is in stark contrast to the provincial, national, international biodiversity targets set out in UN Convention on Biological Diversity, which Canada has signed for over 20 years, and provincial and national climate changes targets.
Despite overwhelming evidence of potential ecological and environmental disasters, and an outdated environmental assessment (completed 1997), the PC government has continued to ignore the concerns of local residents, advocates, and experts.
Oracle Research conducted a recent poll of voters in three key ridings near Lake Simcoe. Lake Simcoe Watch commissionAccording to a survey, 48 percent of residents are against the Bradford Bypass. That compares with 29 percent who want the highway, and 23 percent who are undecided.
The results of the poll are very different from those of a 2016 Town of Bradford West Gwillimbury survey which showed that 85 percent 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 ever designated, it would force Ottawa to address any environmental concerns and create plans to mitigate them. 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 Bradford Bypass has been exempted from all requirements of the Act by the PC government. This means that it will not be subject to all the usual studies and assessments required to prevent environmental and ecological damage.
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. This decision was made despite the participation of 23 organizations and petitions that included 18,000 signatures by residents requesting Ottawa intervene.
However, the PC government changed the rules for environmental assessment to exempt the Bypass of all the usual requirements. Environmental advocates tried again to argue federal government intervention was required because of the tactics of Doug Ford PC government. This is because the PC government is pushing the plan forward before the June election without proper environmental study, work to protect species at-risk, and mitigation to lessen the impact on Lake Simcoe. They claim that this will also put at risk national and provincial climate change targets.
“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. A trio of local advocacy groups, Forbid Roads Over Greenspaces and Stop the Bradford Bypass, sent in November lastyear a second failed attempt at obtaining a federal impact assessment designation.
“(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 all parties that he would no longer be acting as an interim, claiming that nothing had materially changed since the original request for a federal effect assessment was denied.
The federal court can be used to force the Liberal government into changing its decision. If the legal maneuver succeeds, the federal ministry could be able to review the Bradford Bypass as part of the Impact Assessment Act. A combination of local advocacy groups and national environmental organizations are leading the collective effort to ensure responsible planning in the Holland Marsh wetland.
“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.
This claim is being challenged by environmental groups 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 have already proven this to be true. The Lower Landing will be directly overtopped by the Bradford Bypass route, 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, chairman of the local organization Forbid Roads Over Greenspaces, says that the Bradford Bypass is unnecessary and will not solve the area’s traffic problems.
(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 Bradford Bypass passes directly through the Lower Landing, an historic meeting place and former naval station.
(Image from Royal Ontario Museum)
According to the Impact Assessment Agency the report that was provided to the federal minister included the impact on heritage and exemption given by the PCs.
“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.
According to data from the Ministry of Transportation, the Bradford Bypass will not solve congestion problems 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 are concerned that increased salt levels from the Bypass or other highways could cause irreparable damage to Lake Simcoe, which is already in a state of decline.
“We already know that highway crossings create salt hotpots in our freshwater rivers. Lake Simcoe has a 37-year plan to reach ocean salinity. 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.”
The Province is aware in large part of the potential destruction that the highway will cause. A snapshot of this was taken by EA Bowman 1997. 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 will mean that approximately 800 football fields worth of valuable, environmentally sensitive land will be destroyed or degraded.
An earlier 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 sensitive to commercial exploitation such as trophy hunting or their habitat is so endangered that their locations are kept secret from others 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 way a definitive list. According to experts, this number is likely to rise as animals use these green space corridors. The Holland Marsh wetland complex is one such important. The Bradford Bypass would be a four-lane highway that cuts it in half. Many of these species are particularly vulnerable to road mortality, such as the blandings tortoise, which was spotted just north. Provincial documents note that it is the biggest 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.”
Many municipalities around the Bypass have started to ask questions over the past year.
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, Adjala-Tosorontio) all requested explicitly that the federal government intervene to conduct an environmental impact analysis.
Local residents are also writing letters to local councils asking for further study or to cancel the project.
“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. Regional road upgrades, regional transit investments, and investment in GO Transit are all much cheaper. The province is not considering alternatives to highways, nor did it consider transit investments as a way to reduce congestion in 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 made it clear that he believes exactly the 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.
Zoryana Cherwick, spokesperson for Ecojustice, stated that the timeline for the judicial reviews is still uncertain. A hearing could take place this summer.
Email: [email protected]
Twitter: @JoeljWittnebel
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