July 19, 2004
Emile Di Sanza
Director General, Marine Policy
Department of Transport
Place de Ville, Tower C
330 Sparks Street
Ottawa, ON K1A 0N5
RE: Proposed Regulatory Text, Toronto Port Authority Regulations
Canada Gazette, Part I, Monday June 21, 2004
Dear Mr. Di Sanza,
On June 21, 2004, the federal government published its intent to prohibit the construction of a fixed link to the Toronto Island through regulation under the Canada Marine Act.
Lake Ontario Waterkeeper is a registered charity, working to restore the waters of Lake Ontario and support its communities. We participated throughout the fixed link environmental assessment process in 2003, conveying numerous comments and concerns about the project to the proponent (Toronto Port Authority) and to the federal government (Hon. Collenette, Nov. 8, 2003).
Regarding the draft regulation, Waterkeeper has three key submissions:
- Federal action on the fixed link issue is warranted;
- A cost award against the City of Toronto is not warranted; and,
- The fixed link issue is about much more than building a bridge to an island.
Federal action is warranted
For over a year, Waterkeeper, other NGOs, and members of the community have expressed concerns about the fixed link construction project. When the Toronto Port Authority attempted to proceed without conducting an environmental assessment, we objected and the EA process commenced.
When the first draft EA was released in May, 2003, Waterkeeper expressed concerns that the documents did not contain sufficient information about the local environment and the potential consequences of the fixed link and/or operations of the airport.
When the second EA draft was released in June, 2003, Waterkeeper expressed concerns that the Port Authority had failed to comply with important procedural requirements. Further, our concerns from the previous draft had not been addressed.
It was clear at this time that the environmental assessment process would not address the concerns of the community - we lacked access to important data, dialogue, and independent decision-making. Our final comment on the environmental assessment, submitted September 15, 2003, articulated our concerns and frustrations with the process.
Throughout the environmental assessment, the Toronto Port Authority denied our requests for an independent panel review. We were told repeatedly that there was, "no basis or justification for a referral to a review panel or mediator." (TPA Counsel, August 11, 2003)
The federal government's "Regulatory Impact Analysis Statement" makes it quite clear that there was, in fact, legitimate public concern: "The City of Toronto has clearly indicated to the Government of Canada that a fixed link from mainland Toronto to the TCCA is not consistent with local public interests." (2)
While Waterkeeper is pleased that the federal government is responding to this public concern, we are disappointed that its response comes so late in the process. The Department of Fisheries and Oceans had a clear role to play throughout the environmental assessment, though it chose not to exercise its powers as a responsible authority. The Minister of Transport had the power to respond to public concern, though Hon. David Collenette failed to exercise this power as well. The Minister of Environment also could have ensured that the environmental assessment process addressed the community's concern by calling for a panel review - Hon. David Anderson, too, chose not to respond to local public interests.
A cost award against the City of Toronto is not warranted
It is likely that the City of Toronto has prepared its own argument with regards to the authority of a government to reverse policy decisions consistent with the public will.
In addition to the democratic legitimacy of this argument, Waterkeeper notes that there is statutory authority to support its defense.
Section 11.(1) of the Canadian Environmental Assessment Act clearly states that the federal authority responsible for a project, "shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made." (See also S. 4 of the Canada Port Authority Environmental Assessment Regulations.)
Waterkeeper argues that both the Toronto Port Authority and the Department of Fisheries and Oceans had a duty to complete the environmental assessment before making irrevocable decisions. Any contracts which existed prior to the completion of an assessment conducted in accordance with the CEAA and its regulations were contrary to S.11.(1).
The fixed link issue is a symbol for our community
The "fixed link issue" is about much more than merely building a bridge to an island. As Waterkeeper noted in our comments during the environmental assessment, to build the link is to fortify the TCCA?s foothold on toronto's waterfront. The EA process did little to justify the continued operations of an airport in our harbour, which was the real crux of the issue.
Waterkeeper, along with other NGOs and members of the community, have become increasingly concerned about the environmental, economic, and social consequences of the Toronto City Centre Airport.
The "Regulatory Impact Analysis Statement" states that, "it is anticipated that the consultation process will address potential alternatives to the fixed link, which would include the requirement for appropriate access for emergency vehicles to the TCCA." (3)
An environmental assessment conducted by a review panel - according to the requirements of the CEAA - would have identified potential alternatives and confirmed the need to ensure access for emergency vehicles. As we noted above, Waterkeeper repeatedly requested that this form of EA and was repeatedly denied. Only the City of Toronto did everything in its power to address public concern promptly, and in a transparent manner.
In light of the federal government's stated desire to respond to local public interests (2), identify potential alternatives to the fixed link, and confirm the need for the project (3), it is quite clear that the fixed link should have been subject to an independent panel review.
Because there was no independent process, concerns still remain regarding public participation in the decision-making process and the economic, environmental, and social impacts of the TCCA on our harbour. These kinds of issues will remain unresolved in every environmental assessment so long as the discretionary powers in the CEAA are not invoked to ensure an accounting for and response to local interests.
Thank you for your consideration.
President & Waterkeeper