Doug Ford’s Highway 413 and bike lane bill prompted internal warnings around Indigenous Rights and federal intervention

The Ontario government pushed through its bill to fast-track Highway 413 and dismantle Toronto bike lanes despite internal warnings it could risk legal challenges and worsen gridlock.

Those warnings are contained in a draft of a confidential Ontario government briefing document from summer 2024, which was circulated to news outlets over the past month as Premier Doug Ford’s Progressive Conservatives worked to introduce and pass Bill 212. 

The internal advice clashes with the government’s public messaging about the legislation — dubbed the Reducing Gridlock, Saving You Time Act — which it has claimed would reduce traffic jams by building highways faster and overriding municipalities to limit and remove bike lanes. Instead the draft briefing suggests the legislation could do the opposite and worsen congestion, along with risking other problems for Highway 413.

The document was first reported by the Trillium, which said it received the draft briefing from an advocacy group that obtained it from an unknown source. The document has also been reported by the Guardian. The Narwhal has reviewed the document, but has not independently verified its contents. 

Bill 212 has particular bearing on Highway 413, a signature project for the Ford government. If built, it would ring around suburbs to the north and west of Toronto, cutting through Ontario’s Greenbelt, prime farmland, waterways and protected wetlands.

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The draft document shows the government was aware the bill could raise the risk of federal intervention on Highway 413, opposition from First Nations and court challenges — all factors that could add lengthy delays to the project.

Dakota Brasier, a spokesperson for Ontario Transportation Minister Prabmeet Sarkaria, did not deny the existence of the document but declined to comment on it unless The Narwhal allowed the government to see a copy. The Narwhal declined to do so to protect the source who provided it.

The confidential draft briefing outlines the potential pitfalls and legal risks of the legislation that would eventually become Bill 212. Such briefings are a standard step as the government deliberates over any new law: bureaucrats and political staff look at what the potential problems could be, before ministers in cabinet get briefed on the idea and decide whether to move ahead with it.

It’s not clear whether the warnings in the draft document were ever seen by cabinet ministers. 

Now passed, Bill 212 allows the government to begin early construction work on Highway 413 before it finishes studying how the project will impact the environment — and before it’s done consulting First Nations.

The highway’s environmental impact has been controversial, and in 2021 the federal government stepped in and decided to subject the 413 to its own review process. It dropped the review earlier this year, after Ontario filed a court challenge.

The draft briefing warned that allowing early construction work to go ahead before environmental studies are finished could increase the risk that federal Environment Minister Steven Guilbeault might once again be asked to review the project.

That came to pass with a request for federal review from an environmental group just hours after the government introduced Bill 212. Now, Guilbeault has until Jan. 19 to make a decision. If he decides to take a second look, that could delay the project for years. 

The document also warned the government may not have planned for enough time to adequately consult with First Nations, and allowing early construction work to go ahead before that “may result in assertions about the good faith nature of the consultation.”

Though the document concluded there’s a low risk a court would find the bill violated Indigenous Rights and Treaty Rights, it also flagged that First Nations could argue Ontario is not fulfilling the honour of the Crown — a Constitutional principle that mandates governments in Canada treat Indigenous Peoples fairly. 

The federal government has previously raised red flags about whether Ontario is properly consulting First Nations about the project. If Guilbeault believes Highway 413 will have a negative impact on Indigenous Peoples, he can use that as grounds to intervene on the project a second time. 

The draft document also warned new fines included in Bill 212, aimed at people and corporations trying to stop government officials from accessing their property for field studies on Highway 413 and other priority projects. The briefing warned there’s a “moderately low risk” those penalties could be found unconstitutional, and the Supreme Court of Canada could have an argument for or against it.  

Most of the debate over Bill 212 has centred on bike lanes: it gives the province the power to remove existing bike lanes and restrict new ones, targeting three bike lanes in Toronto in particular. Public servants warned the measure may be ineffective, the document shows. 

“This initiative may not reduce congestion as most research (e.g. New York, Washington, Vancouver) suggests reducing road capacity by introducing bike lanes can encourage biking and discourage car use, alleviating congestion,” the document states.