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Provincial
Exemption
The
Exempted Expressway
The
Red Hill Creek Expressway has repeatedly been exempted from
the processes and evaluation mechanisms that might have
exposed its fundamental flaws. The primary purpose of the
current court and lobbying activity of the Region of Hamilton-Wentworth
is to obtain yet another exemption in the long line of exemptions
for this project.
The expressway has previously obtained at least ten exemptions,
and these are detailed below. Two recent blanket exemptions
preclude any examination of the expressway's impacts under
local and provincial law.
First, the Region of Hamilton-Wentworth exempted
the project from the provisions of its own Official Plan!
"Towards a Sustainable Region - Official Plan for the Regional
Municipality of Hamilton-Wentworth (1994)" is the award-winning
plan that is supposed to direct government action in Hamilton-Wentworth.
In it are provisions that direct regional government to
"promote compact urban form", protect tree cover in environmentally
sensitive areas (Red Hill Valley is an officially designated
ESA), restrict construction in flood hazard lands (like
the Red Hill Valley), protect the Niagara Escarpment (the
steep stuff at the top of the valley), and "reducing reliance
on the automobile by promoting alternative modes of transportation".
Any one of these laws is problematic for the expressway;
taken together they amount to a pretty high hurdle for the
expressway proposal to jump.
In
order to exempt the expressway from these bothersome local
regulations, the following clause was added to the official
plan:
"4.3.1.18 (p.C34): Nothing in this Plan shall preclude the
construction of this roadway through the Red Hill Creek
Valley."
This
is Hamilton-Wentworth's own version of the "notwithstanding
clause". The region is saying that it is well aware that
the expressway violates many parts of its own official plan,
but it will proceed none the less.
Second, while the 1985 joint board decision is frequently
referred to in the press, it has not been mentioned that
the last provincial action on the expressway project was
not a review, but an EXEMPTION from provincial review granted
in March 1997.
In 1995 the province informed the region that provincial
assessment of the expressway was necessary, both because
the project had changed considerably since 1985, and because
the 1985 Joint Board ruling had not included the interchange
with the QEW (to be built on top of a provincially designated
class 1 wetland). But let's not forget that the Harris government
is also a leading proponent and funder of the expressway
and informed the region that it might (nudge, nudge, wink,
wink) let the region conduct its own assessment of its compliance
with provincial laws.
The region applied for an "Exemption Order" in May 1996,
and the exemption was granted in March 1997. The ruling
was to let the fox guard the henhouse: the exemption allowed
the project proponent (the Region) to conduct its own review
of whether or not the expressway complies with provincial
law. The Region has neglected to do this: the Region's report
on this matter was due out in January 1999. It has not been
released, and may never be because the Region is now facing
a real environmental assessment (the federal Panel Review).
But once an exemption is granted, the province rarely checks
for compliance with the terms of the exemption.
The issue of provincial credibility in granting the exemption
is raised by another issue as well. One of the reasons given
for granting an exemption from provincial review was that
the expressway project would be undergoing a federal review
(the idea being that an exemption from provincial review
would simply prevent duplication between the provincial
and federal levels of review). After using this reason to
exempt the project from provincial review, the provincial
government is now arguing that a federal review is an intrusion
into matters of provincial jurisdiction (that is, an intrusion
into a provincial review that did not occur).
Other exemptions include:
-
exempted from the 1947 first Official Plan of the City
of Hamilton which called for the valley to be purchased
for use as a greenspace buffer. It was purchased (in 1950-51)
and the landowners were promised it would only be used
as parkland. But by 1956 the City Council had agreed to
use parts of it for an expressway.
-
exempted from a 1974 resolution to permanently protect
Red Hill Valley. In 1974 Hamilton City Council unanimously
adopted the following resolution: "That this council make
clear its intention to retain the natural character of
the Red Hill Creek Valley and to maintain permanently
its present natural state."
-
exempted from three 1975 and 1976 council resolutions
opposing any consideration of locating the expressway
in Red Hill Valley
-
exempted from the provisions of the 1980 first Regional
Official Plan. Here again the valley was designated as
an "Environmentally Sensitive Area" which should
be protected "to the fullest extent possible",
but then another clause called for the construction of
a "new north-south road, crossing the Niagara Escarpment
along the Red Hill Creek Valley".
-
exempted from requiring a permit from the Niagara Escarpment
Commission. The project actually underwent a hearing before
the NEC in 1984 and was rejected. But the provincial Conservative
government of the day rolled the approval process into
the Joint Board hearings which simply ordered the NEC
to provide a permit, even though the NEC testified at
the hearings that it opposed the project.
- exempted
from having to obtain an approval from the Hamilton Region
Conservation Authority. The strong opposition of the HRCA
was circumvented in the same way as that of the NEC. The
HRCA was simply ordered to provide an approval by the
Joint Board decision.
- exempted
from undergoing a hearing before the Environmental Assessment
Board. Instead, the project was examined by a "Joint
Board", composed of two members of the Ontario Municipal
Board, and only one member of the Environmental Assessment
Board (who strongly opposed the decision taken by the
two OMB members)
-
exempted from evaluation under the Region's "Vision 2020"
sustainable development guidelines adopted in 1993. The
citizen task force which developed Vision 2020 was specifically
told it was not permitted to even discuss the expressway
proposal and its implications.
- exempted
from the 1996 Regional Transportation Plan. This "plan"
merely assumed the expressway would be built and failed
to examine whether it was still a good transportation
proposal.
Details
of the Exemptions
1979:
Six "alternative" locations are presented to the public
for the north-south expressway. All six went through the
Red Hill Valley, despite the following facts:
- A
unanimous council resolution in 1974 to permanently protect
the Red Hill Valley;
- Repeated
council resolutions in 1975 and 1976 opposing allowing
any consideration of the valley as a route for an expressway;
and
- The
first Official Plan of the Region adopted in 1976 which
designated Red Hill Valley and 36 other areas in the Region
as "Environmentally Sensitive Areas" which "(add quote)".
Despite this clear direction of the Official Plan, in
September 1979, the city and regional councils approve
the location of the expressway in Red Hill Valley.
1984:
The expressway project is exempted from hearings before
the Niagara Escarpment Commission (the planned road requires
a new cut in the escarpment and more than half its length
is inside the two highest protection areas of the Escarpment
Plan Area). The NEC is opposed to the expressway, but instead
of a hearing, the provincial Conservative government decides
to roll the NEC decision into a Joint Board Hearing. The
NEC has insufficient funds to be represented by legal counsel
at the hearings.
1984:
The expressway project is also subject to approval by the
Hamilton Region Conservation Authority, whose Board has
already adopted a strong position against it. However, this
approval is also rolled into the Joint Board Hearing. The
HRCA shares legal representation at the hearings with community
groups opposing the project.
1984-85:
The expressway is also subject to the Environmental Assessment
Act of Ontario. One officer is appointed from the Environmental
Assessment Board to (EAB) hear the Joint Board Hearing.
However, the other two hearing board members are from the
Ontario Municipal Board (OMB). The three officers arrive
at a split decision. The two OMB members approve the project,
declaring that the construction of the expressway will improve
the valley. The EAB representative submits a 116 page dissent
in which he concludes that need for the road has not been
shown, and even if it had been, Red Hill Valley should definitely
not be the location for it. The OMB majority also orders
the Niagara Escarpment Commission and the Hamilton Region
Conservation Authority to issue all necessary approvals
for the project.
1991:
The Region of Hamilton-Wentworth establishes a task force
to a sustainable development vision and strategy for the
Region. The chair of the task force is also the chair of
the Freeway Steering Committee. He bans consideration of
the expressway from the task force discussions and recommendations.
A "Vision 2020" is developed by the task force and adopted
unanimously by Regional Council in 1993 as the guideline
for future decision-making in Hamilton-Wentworth. This leads
to Hamilton-Wentworth being designated as the only Canadian
model community for sustainable planning under the Agenda
21 program of the United Nations.
1995:
Hamilton-Wentworth adopts a new Regional Official Plan which
draws extensively from the Vision 2020 task force conclusions
and recommendations. Sixty-nine areas of the Region including
the Red Hill Valley are designated as "Environmentally Significant
Areas" (ESAs), and strong language is included to ensure
their protection. However, a clause in the land use section
of the Official Plan declares: "Nothing in this Plan shall
preclude the construction of an expressway in the Red Hill
Valley".
1996:
The Regional Transportation Plan prepared for Hamilton-Wentworth
by DelCan between 1994 and 1996 assumes that the north-south
Red Hill Creek Expressway will be constructed. It does not
evaluate either the need for the project or any alternatives
to it.
1997:
In March the provincial government issues an exemption order
under the Ontario Environmental Assessment Act. While this
order requires the Region to conduct an internal assessment
of the effects of the project, it specifically exempts evaluation
of both the need for the project and alternatives to it
including alternative locations.
1999:
The Region goes to Federal Court to obtain an exemption
of the project from the Canadian Environmental Assessment
Act, and from the Fisheries Act. They allege that the application
of these two federal acts is the result of a conspiracy
led by the heritage minister and the minister of the environment.
The
"Need" for the Expressway
It is unlikely that an independent assessment would conclude
that there is a defensible need to build a north-south expressway
in Hamilton. However, this is unknown because the Region
has not done any studies on the need for the road since
1979.
The
first thing to note about need is the very long history
of this project, which has created an inertia about the
need question (some may say a momentum). The idea dates
from a period when it was assumed by just about everyone
that expressways were a great idea. This one was actually
adopted by Hamilton City Council as early as 1953. From
that time on it has been argued that we need this expressway
(or more correctly, that we will soon need it).
Secondly,
the need for the expressway has always been and still is
seen as a future need — something that will occur as
a result of growth. There is no present traffic crisis in
Hamilton. Indeed multi-community comparisons have concluded
that Hamilton has a much better than average transportation
infrastructure.
Third,
through most of its history, the need for the road was seen
as arising from population growth. Thus the 1963 Hamilton
Area Transportation Study (HATS) estimated that local population
would reach 785,000 by 1985 (regional population today is
about 470,000). This pattern continued into the early 1970s
when predicted numbers for 2001 were over one million, and
on through the period when the Regional government last
conducted an examination of need in 1978-79. At that time,
they assumed a 2001 population of 550,000.
Thus
the need for the road and the evaluation of possible alternatives
was conducted with grossly erroneous population projections.
The error was recognized after the 1981 census showed a
much slower than predicted rate of growth and an actual
decline in the population of the City of Hamilton over the
previous decade. The regional transportation planners were
forced to lower their projections to 455,000 and re-jig
their traffic predictions, but amazingly concluded that
the peak flows would actually be higher than under
the much larger population projections. This mainly resulted
from lower predictions for the use of transit. Indeed, the
1982 regional submission of an environmental impact statement
openly argued that much of the cost of building the expressway
would be met by "savings" in municipal transit costs (fewer
buses, fewer transit shelters, lower transit operating costs).
Fourth,
a major cause of uncertainty about the need for the expressway
arises from the economic changes that have occurred in Hamilton
since 1979, the most dramatic being a loss of more than
half of the jobs along the industrial bayfront where employment
has fallen from 50,000 in 1981 to less than 22,000 today.
Moving employees from their homes on Hamilton "mountain"
(top of the escarpment) to their jobs on the bayfront was
once a major purpose of the valley expressway. A related
trend is a rapid growth in out-commuting to the Greater
Toronto Area which now provides more than 20% of the employment
of residents of Hamilton-Wentworth.
Fifth,
while the Region has not reconsidered need for nearly two
decades, a provincial study conducted in 1993-94 under the
direction of David Crombie, concluded that there was no
need for an expressway within the planning period up to
2021. Crombie came to this conclusion even though he assumed
a much higher rate of population growth than the Region
is currently anticipating. The Region is predicted growth
to 575,000 by 2021, while Crombie determined that even the
traffic needs of a population of 594,000 would only require
the widening of an existing escarpment crossing to four
lanes (from the current two) and linking this via a new
four lane arterial road (60 km with intersections and stoplights)
to an existing four lane arterial. Despite these findings,
the Regional government decided not to re-examine the need
for the expressway when they carried out their Regional
Transportation Plan in 1995-96.
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