Environmental groups apply for court order to prevent construction on Pickering wetlands

Environmental groups opposing a development project on protected wetlands in Pickering have filed a court motion in an effort to prevent the start of construction. 

The Ford government issued a regulation on March 4 requiring the Toronto Region and Conservation Authority (TRCA) to give permission to Pickering Developments Inc. to begin development of a distribution and production facility on wetlands surrounding Lower Duffins Creek by March 12. 

The wetlands are located south of Highway 401, near Pickering’s border with Ajax.

Environmental law charity Ecojustice has now applied for a motion to stay that order with the Ontario Divisional Court on behalf of Environmental Defence and Ontario Nature, with the goal of stopping construction before it starts.

The TRCA’s board of directors said in a statement they were being forced to issue the construction permit “under duress.”

“TRCA’s Board of Directors and staff, using a science-based approach to decision making and TRCA’s living city policies, would ordinarily decline permission of such a permit,” the statement said.

The TRCA said the province’s order “conflicts with TRCA’s mandate to further the conservation, development, and management of natural resources in watersheds within our jurisdiction.”

Government changing rules to bolster case against lawsuit

Municipal Affairs and Housing Minister Steve Clark issued a Minister’s Zoning Order (MZO) in October to fast-track a distribution centre and production facility on the wetland. MZOs allow the minister to override local zoning rules.

In response, Ecojustice lawyers filed a lawsuit against the Ontario government on behalf of Ontario Nature and Environmental Defence arguing that the MZO was used in violation of Ontario’s Planning Act.

Minister of Municipal Affairs and Housing Steve Clark issued a Minister’s Zoning Order in October 2020 to fast-track development on the wetlands. (Frank Gunn/The Canadian Press)

On March 5, the Ford government proposed a retroactive change to provincial law to nullify the clauses in the Planning Act that limit the scope of MZOs. A provincial document assessing legal risks to the Duffins Creek project obtained by CBC News suggested that the amendment would help to shield the government against the lawsuit from environmental groups.

The amendment was tabled as part of an otherwise unrelated bill on expanding broadband access in rural areas.

Little known about the development, says Ecojustice lawyer 

Ecojustice staff lawyer Laura Bowman said the motion to stay was filed on the grounds that the MZO issued by Minister Steve Clark may be unlawful and that starting construction could lead to the irreversible destruction of the wetland.

“It’s really an unfairness argument,” Bowman said.

“It would be unfair to allow the developer to rely on potentially unlawful zoning to go ahead and permanently destroy important natural heritage features, including a provincially significant coastal wetland that might be irreplaceable, when the court hasn’t fully determined whether it is lawful to do so.”

She said there is still little known about the development.

“There have been no drawings of it publicly released; there has been no public meeting,” she said.

Bowman added the only details they have is that the developer intends to build a warehouse between 850,000 and 4 million square. feet. 

“What exactly is it that they are in such a hurry to do? We don’t know what it is. That suggests to me that the true purpose of getting the TRCA permit is just to remove the natural features.”

Bowman said the hearing for the stay motion is on March 15 and the outcome should be known within a few days.

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