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August
10, 2003
CONSTRUCTION OF RED HILL CREEK EXPRESSWAY SHOULD NOT PROCEED
Statement of Friends of Red Hill Valley
The
City of Hamilton has announced it is preparing court actions
against those who are protesting the start of construction
of the Red Hill Creek Expressway near Greenhill Avenue.
In fact, as explained below, it is the City whose actions
are illegal and in violation of the rights of the Haudenosaunee
and other First Nations peoples, as well as the rights of
nearby residents.
- The
majority of the proposed construction area is part of
King's Forest Park, which has been Hamilton's largest
park since its purchase in 1929. The City has not gone
through any formal process to sever the proposed construction
area from the park, or to re-zone it from its parkland
designation. Ironically, the City is threatening to charge
the protestors under by-laws that manage the use of parks.
Thus the citizens who are trying to protect the park may
be charged with obstructing those who have been hired
to destroy the park.
- Surveys
conducted on August 4 have confirmed the presence of a
number of species of nesting migratory birds in the area
slated for construction. The federal Migratory Birds Convention
Act and its regulations forbid the disturbance of migratory
birds during their nesting activity. The August 4 survey
confirmed that a minimum of four species were maintaining
nests, four more species were taking care of young outside
the nest, and four additional species were displaying
territorial behaviour that may be associated with nesting.
The presence of these nesting species requires the delay
of construction and the action of the protestors has in
fact restrained the City and its contractors from violating
federal law.
The
majority of the construction area is also protected under
the Niagara Escarpment Planning and Development Act and
falls within the Niagara Escarpment World Biosphere Reserve.
While the latter designation appears to have little legal
strength, this cannot be said of the protection accorded
by Ontario law to escarpment lands. Anyone familiar with
the mandate of the Niagara Escarpment Commission (NEC)
knows that it subjects even very minor land use changes
to careful review and regulation. However, this oversight
has been circumscribed with respect to the Red Hill Creek
Expressway as a result of administrative processes that
violate the purposes of the escarpment legislation.
- The
NEC registered its opposition to the expressway in 1979,
the year in which the municipality adopted its roadway
plans. In 1984 Commission staff recommended that the NEC
deny the municipality's request for a Development Permit.
However, the Commission was unable to act because the
provincial government established a Consolidated Joint
Board hearing process to examine the expressway proposals,
and the three-person hearing board used its authority
to order the NEC to provide a permit for the project.
This was done in 1987 and Hamilton maintains that this
16-year-old permit is all it needs today to build the
expressway.
However,
the expressway project has changed dramatically. In 1987
there were no plans for a new cut in the escarpment; today
the expressway includes the largest cut ever made by humans
in the face of the escarpment - 80 metres wide and 15
metres deep - as well as the blasting of a 400 metre trench.
Other changes to the project include the re-location of
Red Hill Creek and the creation of 7.6 kilometres of new
creek bed (more than a third of it within the Escarpment
Plan Area); the erection of a 220 metre viaduct; the construction
of three large stormwater ponds; and even a redesign of
the Greenhill Avenue interchange that is the focus of
the current protest.
The
NEC and its staff have repeatedly stated that these changes
require a new Development Permit, but the municipality
maintains that its 1987 permit is all Hamilton needs.
In June, Friends of Red Hill and the Coalition on the
Niagara Escarpment (CONE) jointly asked the NEC to issue
a stop work order. This request was tabled by the NEC
and further clarification sought on the City's position.
At this point no decision has been taken, but since the
City believes the NEC has no right to ask for a new permit,
the City is proceeding with construction, essentially
daring the NEC to try to stop it.
- Even
if the City is correct in arguing that its 1987 permit
is valid, it hasn't yet even bothered to meet the conditions
of that permit including the provision of a detailed grading
plan and a detailed tree preservation plan which must
be approved by the Commission. Instead the City appears
to have decided these conditions don't need to be met
until sometime after construction begins in the Escarpment
Plan Area.
- Beyond
the NEC permitting issues, the City openly admits that
it has not secured other major permits and authorizations
needed to build other parts of the expressway. These include
authorizations under the federal Fisheries Act to re-locate
7.6 kilometres of Red Hill Creek, and permission to excavate
70,000 tonnes of the toxic Rennie Street Landfill that
lies directly in the path of the proposed expressway.
This is the same landfill that the City pled guilty in
2000 to allowing to leak PCBs and other chemicals into
Red Hill Creek, and received the largest environmental
fine in Ontario history. In addition, a federal environmental
assessment is now underway to determine if a major oil
pipeline can be relocated to accommodate the expressway.
We believe for the City to proceed with construction without
these permits and in the face of an ongoing environmental
assessment is contemptuous of the law.
- There
is also the matter of notification to the directly affected
Greenhill neighbourhood, and provision of an opportunity
for consultation and addressing of concerns. While the
general features of the expressway have been known for
many years, the specific plans for the Greenhill work
have only been communicated to the majority of the adjacent
homeowners since the beginning of August. Several hundred
homes and three schools are within 200 metres of the construction
site. Notices were delivered on July 5 to only 23 of the
homes, and a flyer was distributed on the last day of
school to the children of one of the schools. The remaining
homes got a flyer in the mail in early August that promised
consultation during June and July! The City has posted
its public consultation protocol on its website and it
promises that "The consultation will aim to take
place a minimum of four weeks in advance of when a final
decision is required." Instead, many residents only
got their first notification on the day the City tried
to start construction.
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Finally, and most importantly, any attempt by the City
to proceed with work in the Valley must be preceded by
an agreement with all the affected Aboriginal peoples.
Both the Showstoppers and Friends of Red Hill Valley have
been issued a permit by the Haudenosaunee Confederacy
to camp in and protect the the Red Hill Valley. The City
holds no such permit.
Why
is the City of Hamilton rushing into the construction work
at Greenhill Avenue? Friends of Red Hill Valley believes
that the rush to construction without appropriate permits
or consultation is being driven by the upcoming municipal
elections. The proponents of the expressway currently control
the majority of the votes on City Council, but realize that
this may change as a result of the November 10 elections.
Instead of waiting for the public to have its say, they
are rushing ahead to spend as much money as possible on
the project so that they can argue that it's too late to
stop the expressway even if the voters reject it. At the
same time, pro-expressway councillors may be trying to prove
they can deliver the expressway to local land developers
and others who provide the bulk of the contributions to
their election campaigns.
Friends
of Red Hill Valley calls upon the City to withdraw its
threats against the protestors at the Greenhill site, and
to delay its construction plans until it has obtained the
blessings of the First Nations peoples, provided a proper
opportunity to the directly affected neighbourhood for meaningful
consultation, and obtained all the necessary permits and
authorizations related to the expressway project.
For
further info: please contact Don McLean (905) 664-8796
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