Journalists all have their hobby horses, and the ongoing legal saga involving CN’s intermodal rail yard in Halton Region in the western GTA is one of many in my stable. I first wrote about this project back in 2015, when the municipality launched a legal challenge to CN’s plans. I reported back then that Halton’s attempt to assert municipal planning powers over rail infrastructure was almost certainly doomed to fail because the Constitution gives the federal government exclusive jurisdiction over railways, while municipalities derive their powers only from provincial law: provinces cannot regulate railways, so neither can municipalities. This was correct: earlier this year, Ontario’s highest court found in CN’s favour, and, in July, the Supreme Court of Canada denied leave to appeal.
But the legal journey didn’t end there: while Halton was losing its argument about municipal power, it won a different argument about federal law, asserting that the process the federal environment minister had used to allow the project to go forward was fatally flawed — or “unreasonable” in the specific language of Canadian judicial precedent.
Well, yet another court has had its say, and the news for Halton Region is bad: the Federal Court of Appeals last week unanimously found that the lower court decision was itself wrong and that the minister’s decision to approve the CN project had been reasonable. Halton Region tells the public it “is reviewing the decision in detail and considering legal options. We remain committed to protecting the health of our community from the significant effects of the project and are deeply concerned that the federal cabinet has approved this project.” In theory, an appeal to the Supreme Court of Canada is (once again) possible.
The news about the CN Rail project is not in itself terribly noteworthy — it doesn’t even allow construction to proceed, because construction at the site actually resumed earlier this year while the appeal was underway. However, I couldn’t help but think about this example in the context of the news from federal politics that the Liberal government is really, truly, no fooling this time considering funding a high-speed-rail line in the Toronto-Montreal corridor. As much as I very much wish I could board a fast train at Union Station next time I need to go to Ottawa or Montreal, I treat this pledge at least as skeptically as colleague Matt Gurney did earlier this week,
The shortest possible explanation for why this high-speed-rail promise will likely not materialize is that the Liberal government will not last long enough to implement it (read any of the polls over the past year and more). The longer explanation is that, if the Liberals had been serious about high-speed rail, they would have started work on it back in 2015 when they were first elected. Instead, the idea of faster and more reliable train service between some of Canada’s largest cities was initially held hostage to the priority of establishing a national infrastructure bank.
But the Halton project is relevant in this discussion, too. It took years for the federal review panel to make a report to the minister, who issued his decision approving the project only in January 2021. To put it another way, a project that was initially proposed before the Liberals even won the 2015 election did not get ministerial approval until more than a year after the 2019 election had reduced them to a minority in the House of Commons.
(Yes, we can give the government a pass because of that whole “world-halting pandemic” that cropped up in that time. But, in government, events always come up, and they will again in the future. You need a way to get stuff done without being derailed. Lincoln started building the transcontinental railroad while waging the Civil War.)
Whether the Liberals should be held responsible for the longer judicial fights over the fate of the Milton hub is a more complicated question. But at the very least, we can say that the timeline of their own ministerial-approvals process was within their control. And, yet, it seemingly wasn’t within their ability to approve an admittedly substantial — but nevertheless pretty banal — piece of rail infrastructure within the lifetime of a single Parliament.
High-speed rail in Canada, if it ever happens, will require many discrete projects such as the Halton hub. Locals around those projects will be able to argue, as the residents of Milton are arguing today, that the construction and operation of those services will have serious adverse impacts on their environment. If this national project is ever going to materialize — HSR is a dream that progressives have nursed for decades, even if they never seem to actually deliver it when in power — it’s hard to see it doing so under the current environmental and procedural regime.
We’ve seen exactly this problem in California, where a high-speed-rail line approved by voters in 2008 was delayed for years by lawsuits under that state’s environmental legislation. The public authority responsible for construction received the final environmental clearance needed for the Los Angeles-San Francisco route in May of this year. The line won’t be operational any earlier than 2030, and possibly 2033 — meaning a quarter century will have passed between the ballot initiative and actual service.
There are serious problems in Canada, and new and better infrastructure is the answer to a lot of them, whether we’re talking about clean energy or clean transportation options. We desperately need to be able to deploy these solutions in a big way and as quickly as possible — and our current laws simply aren’t up to the challenge.
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