In the western GTA, CN Rail has a dream: it would very much like to build a facility to move hundreds of shipping containers off its trains and onto trucks, to deliver freight across the beating economic heart of the country. Halton Region, on the other hand, has a different dream for the same area – its official plan designates those lands for employment uses, but the municipalities argue that the increasingly-automated intermodal freight centre will employ only 130 people – costing the region 6,600 jobs relative to the status quo policies. The dispute has been raging for years now (we covered it here at TVO Today when Halton first vowed to challenge CN’s plans in court, nearly a decade ago) and this month has seen two major court decisions.
The verdict: Halton both won and lost, in two cases over the span of a week.
Starting with the defeat: last week, Ontario’s highest court reaffirmed the decision of a lower court declaring that Halton Region can’t use its planning powers (bestowed by provincial legislation) to intrude on the basic decision of whether to approve the construction of the intermodal yard because railways are an area of federal jurisdiction. In particular, the court found that three municipal bylaws governing crucial works like removing topsoil and widening access roads, can’t apply to CN’s project because the by-laws state the region can only approve them for projects conforming with their official plan. Effectively, the court found that letting Halton Region enforce apparently neutral rules like the width of access roads would have been a Trojan Horse allowing the municipality to impose its planning rules outside of its jurisdiction.
The court didn’t find that federally approved projects are entirely immune from provincial laws generally, only that neither the province (nor the municipalities that provinces create) can use their laws to put themselves in the position of approving or denying projects that fall under federal jurisdiction. For example, a provincial law requiring any property owner to clear a drainage ditch on its property doesn’t fundamentally upend the constitutional division of powers. But on the most fundamental level, the decision of whether to allow CN Rail to build its project or not is a federal one.
The catch – and the grounds for Halton Region’s more successful judicial result this month, only days before the Court of Appeals decision – is that the federal decision to approve CN’s project also has to comply with Canadian environmental law, and on March 1 a federal court found that the Trudeau government’s decision to approve the project didn’t clear that bar.
The core of the federal court decision is that environmental experts had identified numerous serious negative impacts on air quality to the environment and people living near the proposed intermodal yard, and yet the ministerial decision to approve CN’s facility didn’t demonstrate any work on the part of the government to address those harms. Further, Justice Henry S. Brown found that the federal government is required by the Canadian Environmental Assessment Act to “exercise their powers in a manner that protects the environment and human health” and that the decision to approve the intermodal yard didn’t demonstrate efforts to protect human health, particularly from the well-known harms of air pollution from the hundreds of diesel-powered trucks and trains that would be going in and out of the facility.
It would be easy to chalk this battle up to entrenched NIMBYism on the part of Halton Region, and indeed its Court of Appeal defeat was due in part to the fact that judges clearly saw that whatever the merits of Halton’s arguments in principle, local politicians clearly wanted to thwart federal approval of CN’s facility. But the federal case is worth taking seriously: whether you support this kind of infrastructure or not, it should be relatively uncontroversial that governments should obey the laws they write – not least the current federal government which has made its environmental record a core part of the Liberal party brand.
Brown’s decision, if it stands, will mean the federal government would have to re-start its approval of the CN project from the beginning and demonstrate more care for the effects on air quality around the yard. It doesn’t kill the project outright, but it could plausibly add a year or more in delays. Halton Region has won a battle, but it may not have changed the final outcome of the dispute.
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