Ontario's Environmental Assessment Process is Failing Species At Risk in Sudbury

The environmental assessments process ensures that governments and public bodies consider potential environmental effects before an infrastructure project begins.

-From the Government of Ontario, “Environmental Assessments”

We here in Ontario and Canada like to believe that when it comes to considering the impacts that new public infrastructure projects will have on the natural environment, that we have a process in place that will take a close and critical look at all things “environmental” before a new project is greenlighted by the government.  I know that I used to believe this.  After all, don’t we have legislation that requires environmental assessments be undertaken in advance of decisions being made for infrastructure projects?

Well, at least with regards to certain environmental features – those which are deserving of our highest levels of attention and protection – Ontario’s environmental assessment process appears to be a monumental failure – or worse: a sick joke.

Maley Drive

It’s 2016. Here in Greater Sudbury, we are about to start building a highway through the critical habitat of two at risk species – whip-poor-will and blanding’s turtle – without an environmental assessment ever having been undertaken to look at impacts or alternatives.  Although these two species of animal should be afforded the highest level of protection as offered through the province’s Endangered Species Act, what we’re getting instead is the shameful abdication of responsibility from all levels of government in the face of what some are calling an “economic development initiative”.

I’ve had the chance to speak about this issue to my friends and family, and to those I interact with on social media.  Most often, the response I get is, “I don’t believe you when you say that they’re going to build a new highway through species at risk habitat without an environmental assessment.  All new highways need to have EA’s”.  I then take some time to explain why that is both true and not true in the case of Greater Sudbury’s Maley Drive Extension.

It is true that the Maley Drive Extension project has had a Class Environmental Assessment.  It was undertaken in 1995.  There was an addendum to that assessment made in 2008.  Neither the Class Environmental Assessment or the addendum looked at impacts from the highway on species at risk habitat, because at the time that technical experts went looking for that habitat, they didn’t find any.  It may be that the habitat was not present in 1995 or 2008, or it may be that the species at risk occupying that habitat were missed by the assessment.

It wasn’t until 2013 that there appears to have been any evidence that species at risk were located along the highway route selected through the 1995 EA process (selected in part as a result of there being no significant natural heritage features along the route).  Members of the public have had to infer the 2013 date from references made by the City of Greater Sudbury to certain other studies being undertaken – studies which the City has refused to share with the public.  However, it is now fairly clear that the highway is proposed to go through the wetland habitat of blanding’s turtle and the upland habitat of whip-poor-will – and likely through a provincially significant wetland that despite being along the proposed Maley route for over 20 years has never had the benefit of a formal wetland evaluation.

A New Environmental Assessment?

After I explain this to my friends, family and social media contacts, there is still usually a degree of disbelief that follows.  “Surely they’ve got to do a new Environmental Assessment now that they’ve found threatened species habitat in the middle of the highway corridor?”  I then take some more time to explain how this can both be true and not true.

Yes, it is true that in the case of the Maley Drive Extension project, the City of Greater Sudbury, which is responsible for undertaking the environmental assessment, should be preparing an addendum to the 1995 Class Environmental Assessment now that it has the knowledge that there are species at risk living along the proposed corridor.

However, there is no mechanism in place which actually compels the City to do this.

And that’s what makes the Environmental Assessment process a complete farce.

The Class EA process is supposed to work like this (I’ll use a potential new highway as an example).  The City identifies a problem – say, our roads are too congested.  It identifies what it believes to be a decent solution – say, I think we should build a new highway.  Then, through a public environmental assessment process, the City lays out a number of alternatives to address the problem, including a “do nothing” alternative.  Some of these alternatives might involve looking at other ways of moving people and goods. Public input is gathered. Technical studies are produced. Numbers are crunched.  And ultimately a complete record is prepared, recommending the new highway that the City wanted to build in the first place (perhaps that’s a more systemic flaw in the process – one we’ll leave for another day).

Citizens have the opportunity to request a more thorough evaluation from the Minister of Environment and Climate Change, should they disagree with the findings of the report, or the data on which those findings were based.  The public has 30 days to review all of the materials, and lodge a formal request for evaluation – a “bump up” request.

After the 30 days have expired, and if no requests are received by the Minister, the Minster accepts the findings, and the project is a go.

However, if the scope or scale of the project changes, or if the time from which the Class Environmental Assessment was completed to the time that the project starts to get built was deemed to be too long, usually the City will prepare an Addendum – but there doesn’t actually seem to be a requirement that this occurs.

For Greater Sudbury’s Maley Drive, back in 2006, the City determined that both the scale of the project had changed (originally, the highway was to be 2-lanes, but the City now wanted 4-lanes) and the time frame for the approval had “lapsed” (the original EA was prepared in 1995).  The Addendum was completed in 2008.

Are Politics Interfering with Doing the Right Thing?

Despite the 8 years that have now passed between the preparation of the Addendum to the 1995 EA, and despite the now known presence of species at risk in the corridor, the City has refused to admit that there has been any action which warrants revisiting these old assessments.  What's preventing the City from preparing another Addendum, as they did in 2006-08?  Or better yet, what's preventing a complete new undertaking - one which assesses alternatives to the new highway and/or alternate routing for the road?

Between 2006 and March, 2016, the City undertook to engage senior levels of government to help finance the Maley Drive Extension project.  As part of that effort, the Maley Project was ultimately divided into two phases.  Shortly after Sudbury’s NDP MPP, Joe Cimino, resigned his seat at Queen’s Park in 2014, the Liberal government publicly announced that it would provide one-third funding for the Phase 1 Maley project.  The Liberals went on to win a by-election in Sudbury shortly after this announcement was made, with former federal NDP MP Glenn Thibeault becoming Sudbury’s representative in Toronto.

Thibeault’s resignation from the federal level of government led to another by-election being called in Sudbury in the spring of 2015.  Ultimately, this by-election was called off and was replaced by the federal general election, in August 2015.  However, the by-election gave the federal Conservative government reason to steer clear of announcing funding for Maley Drive between May of 2015 and up until they were booted from office in October.  New Democrats in Sudbury and the Nickel Belt were replaced by Liberals in both ridings. 

In April, 2016, Justin Trudeau came to town and announced that his new federal government was going to commit one-third funding to Maley Drive, partnering with the Province and the City to build this new “green” highway for the purposes of economic development.  There was much rejoicing at Tom Davies Square that day.

Taking No Responsibility: Minister of Environment and Climate Change

But there were some in the City who were less than thrilled that the City appeared never to have considered the highway’s impacts on species at risk – and were not happy with the fact that senior levels of government were agreeing to pony up two-thirds of the cost of the new highway in absence of an environmental assessment which looked at species at risk.

Writing to the Minister of Environment and Climate Change, Maley Drive super-critic John Lindsay outlined a rationale for the Minister to intervene (see Mr. Lindsay’s submission to the Minister, which begins on page 79).  Essentially, Lindsay indicated that the City wasn’t doing its job – a jobs which he reminded the Minister was one that was shared by the Province – the job of protecting precious species at risk habitat.

Recently, the Minister (through the Director of the MOECC’s Northern Region) responded to Mr. Lindsay and other concerned citizens, indicating that the Minister has no authority to require a new environmental assessment, and reminded Mr. Lindsay that the Class EA process is a municipal process.   Hands were washed and the buck was passed.  Almost as if species at risk don’t really matter to the Province of Ontario.

The Director of the MOECC’s Northern Region at least took the time to indicate that should there be a “significant changes” in the Maley Drive project’s environmental setting, that the EA process requires the City to prepare an addendum.  However, the Director failed to identify in just who it would be to determine what a “significant change” in “environmental setting” really means.

Discovering Species At Risk is Not a Significant Change in Environmental Setting

Apparently, as far as the City of Greater Sudbury is concerned, a “significant change” in “environmental setting” is not the discovery that two species at risk are living in the proposed corridor, despite the technical findings of 2 past assessments.  The mere presence of these animals who should be receiving the full protection of the province’s Endangered Species Act really isn’t a big deal for the City – not enough of a deal for the City to look at undertaking an another addendum to its 22 year old Environmental Assessment.

My friends and family at this point usually ask, “For real?” to which I reply, “For real.”

I go on to explain that the Endangered Species Act actually gives an out to those who are thinking about harming and destroying species at risk habitat.  It’s not in the legislation.  But the province adopted regulations a few years ago to allow developers and infrastructure proponents like the City of Greater Sudbury to go through a permit process.  Essentially, the Ministry of Natural Resources and Forestry can issue a permit to allow for the destruction of species at risk habitat. 

Biodiversity Offsetting

Now, these permits will often have conditions attached, including conditions which require biodiversity offsetting.  In the case of Greater Sudbury and Maley Drive, the City is currently working with the MNRF to determine where the City can replace the habitat that it’s going to destroy by building Maley Drive, as the MNRF appears to have identified the need for biodiversity offsetting as a condition for an Overall Benefit Permit.

Of course, biodiversity offsetting is controversial (see: "Biodiversity offsets in theory and practice," Joseph W. Bull, K. Blake Suttle, Ascelin Gordon, Navinder J. Singh and J.E. Millner-Gulland, Flora & Fauna International, 2013).  Humans don’t have a great track record of re-creating the habitat of threatened and endangered species.  Sometimes we do a pretty good job.  Other times, we don’t.   

Protecting our Green and Re-Greened Places

And sometimes our efforts to bring wildlife back to places where it once flourished should be applauded and celebrated.  Certainly that’s something that we here in Greater Sudbury have learned through our land reclamation and regreening initiatives.  In the case of the Junction Creek watershed, the efforts of Greater Sudburians and the Junction Creek Stewardship Committee have likely re-vitalized the watershed so that today it can again support and sustain species that left the area, due to pollution. 

Now that the creek is being cleaned up, animals like blanding’s turtle have returned.  Only to have their wetland home paved over by a new highway, in the name of economic development.  How’s that for all of the hard work so many have put into regreening our City?

The Facts of the Matter

Well, don’t despair.  That turtle habitat that is about to be ripped up will mean new habitat for blanding’s turtles elsehwere. Here in Ontario, however, the biodiversity offsetting process through the MNRF’s Overall Benefit Permit is one which the public has no involvement in – unlike the Class Environmental Assessment process.  With this in mind, let’s review the facts of this case:

• The City of Greater Sudbury found two species at risk living in the middle of the proposed Maley Drive corridor in 2013.
• The Ministry of Environment and Climate Change suggests that when “significant change” to the “environmental setting” of a project happens, the City should undertake an addendum to the original EA.
• The City of Greater Sudbury refuses to revisit the EA process.  The Minister of Environment and Climate Change refuses to get involved.
• There is no mechanism in place to force the City to do its job.
• Both the provincial and federal Liberal governments have agreed to fund the Maley Drive Extension, knowing that species at risk habitat will be destroyed in the process.The City is working with the Ministry of Natural Resources and Forestry to obtain a secretive Overall Benefit Permit that will see habitat destroyed in one location replaced with new habitat elsewhere – through a controversial process known as biodiversity offsetting.

It's 2016

It continues to amaze me that a lot of good work goes into protecting numerous natural heritage features from the negative impacts of incompatible development, often through the creation of buffers between the development significant wildlife habitat.  The Province of Ontario does a pretty good job of protecting alvars and provincially significant wetlands where they have been evaluated.  And features like deer wintering areas and moose aquatic feeding yards are often afforded very high levels of protection by ensuring that new development won’t negatively impact these sensitive features. 

But when it comes to the very plant and animal species that the province should be holding to a higher standard – species at risk due to habitat loss from development – we have in this Province a process which permits the harm and outright obliteration of their habitat, premised on the controversial notion that we can replace that habitat elsewhere through a biodiversity offsetting process.

What we’re left with is in 2016, you can build a new highway through the habitat of species at risk without first undertaking an environmental assessment which looks at alternatives to destroying that habitat.

And that’s a sick joke we’re playing on the very species our governments should be protecting.

(Opinions expressed in this blogpost are my own, and should not be considered consistent with the policies and/or positions of the Green Parties of Ontario and Canada)

FYI, I’ve been working with a number of community members to start a new organization in our City which will look to make headway on the need to protect our at risk plant and animal communities.  You can follow Biodiversity At Risk – Sudbury on Twitter: @BAR_Sudbury, and join on Facebook.