To pave way for wetland development, Ford government retroactively changing law

The Ford government is proposing a retroactive change to provincial law to clear the way for a controversial development project on a protected wetland. 

The change in legislation was tabled by the government Thursday as part of an unrelated bill about expanding broadband internet in rural areas.

The amendments to Ontario’s Planning Act would nullify a key clause that limits the scope of ministerial zoning orders (MZOs), a powerful tool that helps fast-track developments by overriding local zoning rules.

CBC News has obtained an internal document that shows the government is making the change specifically to undermine a lawsuit that aims to halt a development on the Lower Duffins Creek wetland in Pickering.

Municipal Affairs and Housing Minister Steve Clark issued an MZO in October to fast-track a distribution centre and production facility in the wetland, south of Highway 401 near Pickering’s border with Ajax. 

Municipal Affairs and Housing Minister Steve Clark, right, has tabled amendments to Ontario’s Planning Act that would retroactively change the rules governing ministerial zoning orders he has already issued. (Christopher Katsarov/The Canadian Press)

The amendments to the Planning Act “appear designed to retroactively legitimize the order” regarding the Lower Duffins Creek project, according to the coalition of environmental groups that has launched the lawsuit    

The Ford government has issued 33 MZOs since last April, more than the previous Liberal governments issued over the course of a decade.

Ontario’s Planning Act currently says any such order must be consistent with all relevant “provincial policy statements” that are in effect at the time.  

However, the amendments tabled Thursday say that provision “is deemed never to have applied” to any MZOs.

So, although the law required the Duffins Creek MZO to comply with the policy that classed it as a protected wetland, the change would effectively rewrite history by saying the order never had to comply.  

The amendments to Ontario’s Planning Act would nullify a key clause that limits the powers of ministerial zoning orders. The amendments were tabled Thursday as part of an unrelated bill about expanding broadband internet in rural areas. (Mike Crawley/CBC)

A provincial document assessing legal risks to the Duffins Creek project, obtained by CBC News, suggests the amendments would help shield the government against the lawsuit. 

“In the absence of the proposed amendments — in particular the proposal for retroactive application — there is a moderately high risk that the MZO would be found to have contravened the Planning Act requirements for consistency with the [provincial policy statement],” says the government document.

The provincial policy statement says development shall not be permitted in significant wetlands. SInce Duffins Creek has that designation, lawyers for the environmental groups argue that issuing the MZO broke the law. 

CBC News asked Clark’s office Thursday to provide an explanation for the amendment.   

“We need to ensure that priority projects that will play a key role in our province’s economic recovery do not face unnecessary delays and barriers after an MZO has been made,” said a spokesperson for the ministry of municipal affairs and housing.  

The move amounts to “an attack on the public’s constitutional right to seek judicial review of unlawful decisions,” said a statement from the three groups involved in the court case: Environmental Defence, Ontario Nature, and Ecojustice. 

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