Province should reconsider Expressway approval, uphold public trust

August 20, 2003

The Honourable Jim Wilson
Minister of Environment
12th Floor, 135 St. Clair Avenue West
Toronto, ON M4V 1P5

RE: Request for reconsideration of approval to construct the Red Hill Creek Expressway, pursuant to s.11.4 (1) of the Environmental Assessment Act.

Dear Hon. Wilson,

I am writing to you on behalf of Lake Ontario Waterkeeper (LOK), an environmental law group working to protect Lake Ontario. As you are likely aware, the City of Hamilton is currently undertaking to construct an expressway in the Red Hill Valley. This project is highly controversial and has been the subject of numerous public demonstrations and media reports.

We are requesting that you reconsider the approval for the project, which was granted to the Region of Hamilton-Wentworth eighteen years ago. Section 11.4(1) of the Environmental Assessment Act grants you this authority when circumstances have changed or new information arises. As outlined in the letter below, Lake Ontario Waterkeeper is of the opinion that significant changes have occurred and new information has come to light in the last eighteen years. We believe that reconsideration of the original approval, either by the Minister or by referral to the Environmental Review Tribunal, would grant the public a fair opportunity to address these changes in a contemporary EA process.

The approval to construct the expressway was granted to the Region of Hamilton-Wentworth in 1985 after the Region successfully argued that the proposal was prepared by responsible, conscientious individuals (p.186). The credibility of the Region was given much weight in the consideration of its ability to successfully mitigate environmental impacts of the expressway.

However, the credibility of the new project proponent the City of Hamilton has never been tested. We feel that the people of Hamilton have legitimate concerns regarding the city's credibility as a project proponent, given its recent activities in the Red Hill Valley.

The City of Hamilton has demonstrated that it is not only an untrustworthy advocate but in fact an aggressor against the Red Hill Creek. In September 2000 the City plead guilty to offences under the Fisheries Act for leachate discharging into the Red Hill Creek from the Rennie St. landfill. It was fined a total of $450,000 and given orders to clean up the site.

The construction of an expressway includes disruption of now-remediated sections of the Rennie St. landfill. Potential impacts of this disruption have not been considered in an environmental assessment.

The Ministry of Environment has also charged the City under the Ontario Water Resource Act for 'greasy scumballs' that were discharged in 1999 into the Red Hill Creek from the sewage treatment plant located at the mouth of the creek. The defence offered publicly by the City is that it happens all the time, so the Ministry was wrong to lay charges.

Incredibly, the Fisheries Act conviction and the OWRA case (pending) have not prevented the City from continuing to pollute the Creek. In December, 2001 the City of Hamilton was again caught in violation of the law as it polluted the Red Hill Creek. Four orders were issued by the Ministry of the Environment to clean up storm sewer outfalls and all discharge points on the Creek. The City has yet to comply with these orders.

In addition to its egregious actions in the Red Hill Valley, the city has withheld information about the area with members of the public. On June 3, 2003 the Information and Privacy Commissioner of Ontario ordered the City of Hamilton to release documents it had produced concerning the Red Hill Creek Expressway Project. These documents contain new information about the impacts of the proposed expressway on the Red Hill Valley and its environs.

Because the city has withheld information and has actively polluted the Red Hill Valley, we feel the people of Hamilton are justified in hesitating to trust its future to the city. It feels like asking a thief to guard your treasure.

And the Red Hill Valley is a treasure. While the majority of the Joint Board of 1985 accepted that the valley was not a popular place for passive recreation (p. 191), its value to the local community has grown. Since 1985 groups such as Friends of the Red Hill Valley, the Hamilton Naturalists Club, the Conservation Society, King Forest Orienteering Club, the Hamilton Conservation Authority, Community Action Parkdale East, Red Hill Neighbourhood Association and Concerned Citizens of Ward 5 have formed or spoken out, confirming that the 1985 argument is longer true.

Furthermore, the area was named part of the Niagara Escarpment UNESCO World Biosphere Reserve in 1990. In 1995, the first Southern Flying Squirrel was spotted in the Red Hill Valley; the mammal is a threatened species and 30 animals have since been sighted in the area. These changes, combined with the increased value the community places on the valley, have never been meaningfully assessed. Without their consideration, we cannot safely conclude that all adverse environmental impacts will be successfully mitigated.

Mitigation is important, because the Red Hill Valley is now one of the last significant greenspace in the City of Hamilton. While the Joint Board was convinced that the expressway was needed to clean up the creek in 1985, area residents and provincial environment officials have since demonstrated that hard work and diligent enforcement of environmental laws will do the same thing. Because of their hard work the Red Hill Valley today is an internationally recognized treasure.

Section 11.4 (1): a Ministerial reconsideration. The City of Hamilton has committed offences under the Fisheries Act and OWRA which are directly related to the subject matter of the approval granted to the Region in 1985. Such an act should automatically and immediately call into question the continued relevance of that approval.

The purpose of an environmental assessment is, after all, to ensure ?the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment (s. 2). After eighteen years, four orders, pending criminal charges and a criminal conviction, surely reconsideration and a reassessment via mediator or review panel serves this purpose.

The decision to construct an expressway through the last significant greenspace in any community is not a decision to be made lightly. It is imperative that a project proponent appreciate its duty to uphold the public trust by maintaining its credibility, and that the science of the mitigation measures be sound. Only with a provincial review can we be certain this is the case in the Red Hill Valley. We thank you for your consideration and look forward to your response.

Sincerely,

Mark Mattson
Lake Ontario Waterkeeper