The federal government had little choice but to cut a deal with Ontario over Highway 413, or risk another court ruling that would chip away at a key environmental law, said Environment and Climate Change Minister Steven Guilbeault.

The minister spoke with The Narwhal last week about the government’s decision in April to drop a federal assessment of the proposed provincial highway. Instead of a full federal assessment, the government has agreed to create a joint team with the province to come up with environmental recommendations. The decision was meant to “protect” the “integrity” of the environmental law, called the Impact Assessment Act, Guilbeault said.

“Either we came to an agreement with Ontario, or we would have lost in court. What choice did I have? Not a whole lot,” the minister said April 23, on the sidelines of a summit in Ottawa on ending plastic pollution.

The law, which gives the federal government the power to order environmental reviews of projects like Highway 413, was thrown into question last fall after a Supreme Court of Canada opinion found it to be “unconstitutional in part,” in a reference case spurred by an Alberta appeals court judgment. Guilbeault said that opinion “effectively nullified” key legislative powers and put him in a tough position when it came to the highway proposal.

“Because of the Supreme Court ruling, I basically don’t have an Impact Assessment Act right now that I can use,” Guilbeault said.

Provoking another court battle with the province could backfire, he added, because “every time you lose in court on a piece of legislation like that, it further erodes your capacity to be using it down the line.”

“I’m trying to protect, as much as I can, the integrity of what we still have left … that’s not a theoretical [or] political thing. It’s our ability federally to keep using this Act, to help better inform Canadians on the impacts of these projects, and better assess these impacts, to make better informed decisions,” Guilbeault said.

Ontario found 11 species at risk along Highway 413 route

The Ontario government said Tuesday it expects construction to begin on Highway 413 in 2025, and is currently undertaking engineering and other fieldwork before meeting with “key private sector experts” and property owners.

If built, the proposed 60-kilometre highway would snake through Toronto’s suburbs, crossing Ontario’s Greenbelt, hundreds of wetlands and waterways, conservation land, farmland — and the habitats of almost a dozen species at risk.

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The province’s own research has found 11 species at risk along the highway’s proposed route, documents obtained by The Narwhal and the Toronto Star show. These include an endangered minnow at “imminent” risk of being eradicated called the redside dace, a frog threatened by urban development and agriculture called the western chorus frog and a rare dragonfly sensitive to low water quality called the rapids clubtail.

The Impact Assessment Agency, the organization that conducts the federal assessments, had asked the province to demonstrate how it would minimize harm to the western chorus frog and the rapids clubtail, as well as the red-headed woodpecker, another species at risk which is likely to be present along the route, as the highway got built.

Following the Supreme Court opinion, Guilbeault signaled the government’s intention to continue to assess projects like Highway 413. He told The Narwhal the government ultimately decided it was better to “find common ground” with Ontario and allow for some level of federal assessment to still take place on Indigenous Treaty Rights, species at risk, navigable waters and migratory birds.

That would still allow for “a path where we will still be able to apply elements of federal jurisdiction to this project,” he said.

Guilbeault’s comments on the 413 come after the minister courted controversy earlier this year when he appeared to suggest the federal government would no longer fund large road projects, preferring to encourage the use of public transit and active transportation like cycling or walking to help fight climate change.

He clarified those comments later, saying they were only meant to apply to a proposal to construct another bridge or tunnel crossing the St. Lawrence River near Quebec City called the Third Link, and that the federal government believes many highways and roads are “critical components of local, regional and national transportation corridors across the country.”

“I take responsibility for not being clear enough in that statement,” he told a Parliamentary committee in March.

Man in a purple tie in front of a podium that reads "Alberta's recovery plan, helping everyday Albertans."
Former Alberta premier Jason Kenney’s United Conservative Party government filed a court challenge of the federal Impact Assessment Act after the law was enacted in 2019. Photo: Government of Alberta / Flickr

Supreme Court case provoked by former Alberta premier Jason Kenney

The Impact Assessment Act, previously known as Bill C-69, attracted intense opposition from federal and provincial conservatives, including former Alberta premier Jason Kenney.

Kenney had argued the law would make it harder for pipelines transporting fossil fuels to be built. In Canada, the construction of interprovincial and international pipelines is regulated by the Canada Energy Regulator.

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Kenney’s United Conservative Party government filed a court challenge in 2019 after the law was enacted, asking the Alberta Court of Appeal to issue an opinion on the law’s constitutionality.

It did so in 2022, finding the law to be unconstitutional, a decision which the federal government appealed to the Supreme Court later that year.

Ontario’s attorney general intervened in the Supreme Court case, as did the attorneys general of six other provinces, and a number of First Nations, environmental non-governmental organizations and industry groups.

Chief Justice Richard Wagner, writing for the majority, said that while the assessment law “plainly overstepped the mark,” there was “no doubt” that Parliament can still enact legislation to “minimize the risks that some major projects pose to the environment,” so long as it “respects the division of powers.”

Following the Supreme Court’s opinion, the government committed to updating the law. On April 30, it introduced legislative amendments to do so.

One of the changes includes tying the Impact Assessment Agency’s decision about whether an assessment is required to whether the project would cause “adverse effects within federal jurisdiction.”

The proposal now has to be adopted by Parliament.

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The Narwhal’s reporting team is busy unearthing important environmental stories you won’t read about anywhere else in Canada. And we’ll publish it all without corporate backers, ads or a paywall.

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