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September
2000 Newsletter
Increasingly
Desperate Attempts to Stop Assessment
The
supporters of the Red Hill Creek Expressway seem to be growing
increasingly desperate in their attempts to stop the independent
environmental assessment of the project by a federal Panel.
Last summer they were accusing Sheila Copps of interfering
in the process, although they were never able to produce
any evidence for this accusation. By April of this year,
they were DEMANDING that she interfere, even though this
is obviously inappropriate and likely illegal.
Hamilton
West MP Stan Keyes, along with Regional Chairman Terry Cooke
were reported to be demanding that Sheila Copps "press cabinet
colleague Environment Minister David Anderson to limit the
review to questions of exclusive federal jurisdiction."
On April 18, Mr. Keyes addressed the Canadian Club of Hamilton
and attacked Copps "for not taking a stand on the need to
limit the scope of a federal environmental review of the
controversial Red Hill Creek Expressway project". This pressure
from Keyes and Cooke and other pro-expressway forces to
interfere in the Panel Review essentially amounts to trying
to get the law broken. The Panel Review of the expressway
is a quasi-judicial process that must operate at arms length
from the federal government.
The
demands that the law be broken closely followed a Federal
court decision in early April which rejected the major claims
being made by the Region in its court case. The Region is
arguing that the Canadian Environmental Assessment Act (CEAA)
doesn't apply to the expressway, and that it also doesn't
require a permit for the project under the federal Fisheries
Act. The court ruling rejects both of these claims.
In the ruling, the judge stated: "I would not grant leave
to assert that authorization is not required for the Expressway
Project under subsection 35(2) of the Fisheries Act, or
to assert that the need for that authorization did not trigger
the application of the CEAA." The judge explained her ruling
in the following excerpt from the decision:
"...the
Regional Municipality accepted the need for Fisheries
Act approval at an earlier stage of the construction project
as evidenced by the fact that it sought and in late June
1995 obtained, an authorization pursuant to subsection
35(2) of the Fisheries Act with respect to completion
of the Dartnall Road Interchange portion of the Lincoln
Alexander Expressway."
"Thereafter, when discussion began between representatives
of the Region and the federal authorities in 1996 with
respect to the portion of the Expressway now at issue,
the Region 'reiterated the fact that the Red Hill Creek
Expressway will cause habitat destruction and that a compensation
will be developed in consultation with MNR and DFO'. Ultimately,
in July of 1998, the Region forwarded its application
for authorization under the Fisheries Act. This was done
under cover of a letter dated July 24, 1998. The letter
stated 'this early submission will facilitate the approval
process by providing DFO with the ability to initiate
a screening under the Canadian Environmental Assessment
Act.' The letter continued, 'the Region acknowledged the
requirements of the Canadian Environmental Assessment
legislation in developing the impact assessment process
that is currently underway'."
"In
short, apparently being of the view that habitat destruction
would be caused (so that compensation would be required
under the Fisheries Act), having received a response to
the Draft Summary Report to the effect that indeed the
Project might have harmful impacts on fish and fish habitat,
and on the basis of that response, choosing to apply for
approval under the Fisheries Act, the applicant [the Region]
cannot now assert and rely on the absence of a more formal
decision which its own actions, in effect, pre-empted.
I accept counsel for the respondents' [federal government]
submission that prior to the issuance of the Review Panel's
terms of reference, there was no demonstration of any
intent to seek judicial review with respect to the requirement
of Fisheries Act approval or the application of CEAA."
This
decision contradicts the views which the Region and its
lawyers have been presenting for some time. For example,
the Region's lawyer stated on television: "There is no need
to have another environmental assessment. That went on in
1985, went on for 100 days. The feds didn't participate,
they were invited to, declined. Why do they get off trying
to run their own process fifteen years later? We think its
unacceptable." The Region and its lawyers may find it unacceptable,
but the courts clearly think otherwise.
In
other parts of the decision, the court ruled against federal
government attempts to limit some of the issues in the upcoming
court hearing. This overturns an earlier decision that the
Region had begun its court challenge too late to address
some of the federal actions and decisions that it disagrees
with. The court didn't rule on the validity of this argument,
only that this would have to be decided at the full court
hearing. This means the court case will both last longer
and may be more expensive than the environmental assessment.
The Region is taking the longer, more expensive federal
court route because it is well aware that the project will
not pass an independent environmental review.
More
recently, a new regional tactic has emerged which alleges
that Environment Canada staff are biased against the expressway
because some of them personally support environmental protection.
Part of the accusation is that Friends of Red Hill has infiltrated
Environment Canada! This was apparently raised by Mr. Estrin
at the August 9 regional council meeting. The Stoney
Creek News reported the story as follows:
"Referring
to email documents the region obtained under Freedom of
Information access, Mr. Estrin said they 'prove' Environment
Canada officials in its Burlington office have 'manipulated
the process' and government officials have been 'unfair
and biased' in judging the Region's claims that the Red
Hill Creek Expressway won't detrimentally affect the environment.
The documents, he said, point to a 'friends network' that
currently exists at the Canada Centre for Inland Waters
and in Environment Canada."
These
latest accusations suggest an increasing desperation on
the part of the Region and its lawyers, who are apparently
willing to stoop to almost anything. It's certainly a novel
argument for a government to claim that it is the victim
of a grand conspiracy of the citizens, especially one lead
by a group that was dismissed a couple of years ago as "a
handful of zealots". More curious however, is the apparent
thesis behind these accusations.
Environment
Canada's "crime" was to conclude that the expressway was
likely to cause significant adverse environmental effects
that couldn't be mitigated. This was hardly an extraordinary
view. The Region itself admitted in its 1998 Draft Summary
Report that "High-level impacts will occur throughout the
entire Red Hill Creek valley system including the re-entrant
section into the Niagara Escarpment" and that "High-level
impacts cannot be mitigated due to the magnitude of their
effects in the landscape and the lack of opportunities to
replace similar ecological functions elsewhere in the Watershed"
(p.49) There were nearly identical findings for the Red
Hill /Van Wagner's Marsh areas. So what is the point of
trying to claim that Environment Canada was biased when
they simply came to the same conclusions as the Region's
scientists?
One
is forced to the conclusion that the "bias" campaign is
primarily intended to whip up more hysteria against Friends
and others who have raised concerns about the expressway
project.
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