In a letter this week to Jim Wilson, Ontario's new minister of the environment, Transportation Minister Frank Klees withdrew the badly flawed terms of reference (TOR) for the planned mid-peninsula highway. A faxed copy arrived in Burlington early Monday, just before a court appearance scheduled for that day. Burlington and Halton were to present a motion to set a hearing date, hopefully for August.
Now the province is going to revise the TOR, in consultation with "key stakeholders and area municipal governments."
Why? In my opinion, there are two reasons.
One is that, with an election in the offing, Premier Ernie Eves's government does not want to risk losing Tory seats (specifically in Burlington and Halton). The highway -- "the mid-pen" -- is controversial, so it's safer to put it on the back burner until after the election.
But more importantly, Burlington and Halton filed a joint judicial review application, challenging the narrow way the province was applying its own Environmental Assessment (EA) rules, by seeking a "scoped" EA.
A June 17 court decision suggested the province would lose because the issues are so similar.
In a press release, Burlington and Halton congratulated Klees for acknowledging their concerns, and pledged to work with the province. Their press release was gracious, despite the fact their concerns had been largely disregarded previously. The municipalities showed class in their public response.
Throughout the "public participation" process, citizens, citizen groups and municipalities became increasingly frustrated that the ministry was shortcutting the process and not responding to their questions.
Now having lost a similar court challenge, the province has had a change of heart.
The similar case was this: The Mohawks of the Bay of Quinte, and Tyendinaga Township residents living close to the Richmond landfill near Napanee, had been fighting a landfill expansion since 1999.
Stephen Geneja, spokesperson for the residents' group has been quoted, "We have consistently advised the minister that he should not approve a narrow EA process in this case."
The Canadian Environmental Law Association (CELA) represented them at the three-day January hearing of the Ontario Divisional Court. CELA asked the court to quash the EA process undertaken to expand the landfill. The Ministry of the Environment had approved a "scoped" terms of reference for the EA.
The court, in a 2:1 decision, found that the minister had incorrectly applied the Environmental Assessment Act when he approved terms of reference, submitted by Canadian Waste Services Inc, that purported to exclude environmental assessment planning issues such as:
* Whether there was a demonstrable need for the expansion.
* Whether there were preferable "alternatives to" the expansion.
* Whether there were better or safer sites for waste disposal purposes.
The minister had approved a terms of reference that did not require Canadian Waste to:
* Assess whether there is a demonstrable need for the proposed expansion.
* Evaluate alternatives to the proposed expansion (e.g. reduce, reuse, recycle).
* Determine whether there are more environmentally suitable sites.
The court ruled key planning issues had not been answered.
If Canadian Waste still plans to pursue the expansion it must prepare and submit (with full public input) terms of reference which comply with EA requirements.
As an old song says, "Seems to me I've heard that song before." The application for judicial review by Burlington and Halton, among other things, asserts the transportation minister's proposed terms of reference "fails to comply with the (Environmental Assessment Act) insofar as it proposes to eliminate the requirement for an environmental assessment of the need for, alternatives to and alternative methods ..."
One of Burlington Mayor Rob MacIsaac's main criticisms has been that the province does not have a master transportation plan for the Golden Horseshoe. It deals with bits and pieces, not long-range planning.
Burlington and Halton maintain that other goods and people movement concepts should be considered.
They also suggest examining a possible link to the Kitchener-Waterloo-Guelph area during the planning stage.
A key concern is the need to respect our Niagara Escarpment, a UNESCO world biosphere reserve. "Escarpment route C" of the proposed mid-pen would cross the escarpment just south of No. 1 Side Road in rural Burlington, linking up with Highway 407.
Niagara region has been lobbying for a new highway from the U.S. border, and the province consulted Niagara and Hamilton long before Burlington and Halton were even brought into the picture.
By then, mid-pen planning was well under way. Ironically "Escarpment route C" looks suspiciously similar to the map in news photos when then-premier Mike Harris unveiled the proposal.
Burlington and Halton also believe the implications of tolling should be considered. The province's own "sensitivity analysis" shows tolls would reduce the amount of truck and tourist traffic use, and to a lesser degree, commuter traffic.
For this reason, financial operation of the proposed mid-pen should be included as a route evaluation criterion.
It is entirely conceivable that The Road Ahead (the Tories' pre-election platform) may not include the mid-pen as currently conceived.
Former Burlington alderman and Halton councillor Joan Little is former chair of the Niagara Escarpment Commission. She normally writes every other Monday. She is a freelance columnist and her views are her own.
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The COPE website was updated October 30, 2012
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