TORONTO — Ontario is asking the courts to prevent the federal government from using the impugned Impact Assessment Act to stop the province from moving ahead with Highway 413 and Ontario Place construction.
The Supreme Court of Canada found earlier this month that the law dealing with environmental impacts of major developments is unconstitutional because it regulates activities that fall under provincial purview.
But it was an opinion, rather than a decision, Ontario Attorney General Doug Downey noted Tuesday, so the province is now asking the courts to officially declare the vast majority of the act to be of no force and effect, after the federal minister has said he'll continue to use the law.
"The federal government's response to the Supreme Court's opinion has created unnecessary confusion," Downey said.
"This is not acceptable. We all know that Ontario is growing at a remarkable speed and we have a duty to ensure that our historic work building new infrastructure and services can move forward without delay."
Federal Environment Minister Steven Guilbeault has said the Supreme Court's opinion doesn't strike down the law and won't change how federal assessments have been conducted, but that he would work to "tighten" the law in the coming months.
A spokesperson for Guilbeault said the act was put in place to create a better set of rules for the protection of the environment and respect for Indigenous rights.
“Since the Act came into force, we have already seen major projects get approved on a faster timeline,” Kaitlin Power wrote in a statement.
“It’s important to recognize that the Supreme Court explicitly upheld the right of the Government of Canada to implement impact assessment legislation and to collaborate with provinces on environmental protection.”
Downey said "imminent decisions" are being held up on both Highway 413, set to serve Greater Toronto Area communities including Vaughan and Brampton, and Ontario Place, the waterfront attraction the government is in the midst of redeveloping.
Ontario has applied to the Federal Court for judicial review relating to both projects, and is asking that court to nullify the federal act.
Guilbeault decided in 2021 to apply the act to Highway 413 due to potential impacts on three species at risk, and the province writes in court documents filed Tuesday that it has resulted in "significant delays to a project that is of the highest priority to the province."
"For over two years, Ontario has been engaged in back-and-forth discussions with the (Impact Assessment Agency of Canada) which had numerous follow-up questions and requests for information or revisions that are not connected to the reasons why the minister designated the project," government lawyers wrote.
"Ontario has faced significant uncertainty and delays in progressing preliminary design and its own environmental assessment of the project, in part, because the agency has been unwilling to approve the fieldwork required to complete this work."
The government has said Highway 413 would help alleviate congestion across the York, Peel and Halton regions, but opposition and environmental groups have said it will not end up saving commuters much time and will cut into important farmland and green space.
The federal government says it hasn’t received the province’s initial project description so it can start the impact assessment process.
When it comes to Ontario Place, a community group has asked Guilbeault to apply the act to the site, and he has until Dec. 27 to respond.
"It's all critical infrastructure," Downey said.
"We have a choice: we can let the place deteriorate and become derelict as it has in parts, or we can move forward with it and we have an aggressive plan to move forward with it. It's one example of the kind of infrastructure that we need. It's the same as the highways, it's the same as the housing, it's the same as all the other pieces."
Part of the Ontario Place redevelopment includes, controversially, a $350-million spa and waterpark from European company Therme and a large underground parking lot for more than 2,000 cars.
NDP environment critic Sandy Shaw said the court filings show the Progressive Conservative government has misplaced priorities.
"This is a government that will stop at nothing, in my opinion, to remove obstacles for their insiders to build, whether it’s the right place or not," she said.
This report by The Canadian Press was first published Oct. 24, 2023.
Allison Jones, The Canadian Press