Ford government takes feds to court over assessment act

Ontario's provincial government is trying to cement a Supreme Court ruling that found the federal Impact Assessment Act unconstitutional because it stepped into areas under provincial jurisdiction.

The Ford government announced Tuesday it is filing a judicial review to prevent the federal government from ordering assessments on crucial infrastructure projects. Specifically, Ontario is pursuing "legal certainty" for projects such as Highway 413, roads through the northern Ring of Fire mining area, Ontario Place and refurbished energy generation and transmission projects, including new nuclear reactors.

In 2021, then federal environment minister Jonathan Wilkinson ordered an assessment for Highway 413 due to potential impacts on three endangered species. A community organization has formally requested current Environment Minister Steven Guilbeault do likewise for Ontario Place, where plans to build a private luxury spa will chew up some parkland, disturbing plants and animals. Guilbeault is expected to provide a response by Dec. 27.

Premier Doug Ford's announcement was a show of force from a government that has spent the last month retreating on plans to build housing on parts of the protected Greenbelt and force municipalities to expand outside their boundaries to meet housing targets.

In a statement shared online, Ontario Attorney General Doug Downey said that legal certainty is essential for advancing critical infrastructure projects throughout the province without delays.

“Affirming the act’s unconstitutionality by applying for judicial review will ensure that federal decision-makers can no longer impede desperately needed infrastructure projects under a law that the Supreme Court of Canada has held to be unconstitutional,” reads the statement.

The IAA, initially known as Bill C-69 and enacted in 2019, permits federal regulators to assess potential environmental and social impacts of diverse resource and infrastructure projects.

Chief Justice Richard Wagner, who authored the Supreme Court's majority opinion, emphasized the law as written could regulate activities that are provincial business, instead of restricting Ottawa to environmental effects that are within its power to oversee.

However, government officials downplayed the ruling, saying the impact assessment law is still valid and can be fixed with some wording changes. Guilbeault said it will not alter existing procedures for federal assessments. He insisted the federal government has exercised caution in implementing the law.

Downey said the federal government’s failure to recognize the court ruling that found the act unconstitutional has caused unnecessary confusion across the country.

“Ontario is using the legal tools at our disposal to assert our constitutional authority to move forward on our many critical projects without federal interference. As we do, we will continue to follow our robust and world-leading environmental assessment processes and respect our duty-to-consult obligations,” said Downey.

Phil Pothen, Environmental Defence Ontario’s program manager, is among those raising concerns over the Highway 413 project. He’s convinced the act will be swiftly amended to align with the court's decision and won’t hinder the federal government's ability to conduct a comprehensive impact assessment of the road project.

"By filing this application for judicial review, the Ontario government is simply trying to exploit the Supreme Court's decision and create a temporary legislative gap in areas that the federal government is responsible for regulating," said Pothen. Theoretically, this could allow Highway 413 proponents to rush the project through, regardless of environmental damage, before the government fixes the law, he added.

Pothen said the good news is that the federal government can move fast to amend the act, before damage is done.

“We are calling on the government to do exactly that, and we encourage every Ontarian who cares about the environment to get on the phone or send an email to their MP and urge them to deliver an urgent legislative fix. If that means invoking closure and rushing this through committee with co-operation from New Democrat MPs, then that's what needs to happen.”

The statement from Ontario’s attorney general noted the province is experiencing an unparalleled pace of growth, leading to an extraordinary strain on the province's infrastructure.

“With gridlock costing our economy upwards of $11 billion each year, it’s never been more important for us to build roads, bridges, highways and public transit,” the statement added.

Yet, public opposition to the government's Highway 413 and Ontario Place plans has been mounting, particularly after the recent Greenbelt land swap scandal, fuelled by two scathing reports released last month by the province's auditor general and its integrity commissioner.

The proposed 60-kilometre Highway 413, also known as the GTA West Corridor, aims to alleviate congestion in the fast-growing Greater Toronto Area, connecting Milton and Vaughan. However, if built, it would cut through 2,000 acres of farmland, cross 85 waterways, pave nearly 400 acres of protected Greenbelt land, disrupt 220 wetlands and impact the habitats of 10 species at risk.

Ford last month reversed his plan to open the protected Greenbelt lands for housing development. Environmental advocates welcomed the decision but emphasized the immediate need to cancel the entire Highway 413 project.

This story was produced in partnership with Journalists for Human Rights for the Afghan Journalists-in-Residence program funded by the Meta Journalism Project.