By Fax: (416) and

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1 Rodney Northey Direct File No. T By Fax: (416) and Canadian Environmental Assessment Agency 55 St. Clair Avenue East Suite 907 Toronto ON M4T 1M2 Re: Municipal Jurisdictions and Milton Logistics Hub Project by Canadian National Railway Company (CN) We write on behalf of five municipal governments impacted by this project. The Regional Municipality of Halton, Town of Milton, Town of Oakville, City of Burlington, and the Town of Halton Hills (collectively, the Halton municipalities ) have written twice previously to you on this project, during its screening process. By your decision dated May 22, 2015, this project is now subject to environmental assessment. Further, through SOR/ , as amended, the Agency is the responsible authority linked to this project. Overview The purpose of this letter is to advise that, based on present information, Halton Region and the Town of Milton are each a jurisdiction within the meaning of section 18 of the Canadian Environmental Assessment Act, 2012 (CEAA). Section 18 provides that the responsible authority for an environmental assessment under CEAA must offer to consult and cooperate with jurisdictions with respect to the environmental assessment of a designated project. Jurisdictions include provincial agencies or bodies that have powers, duties, or functions in relation to an assessment of the environmental effects of the project. Halton Region and the Town of Milton are agencies or bodies established under an Act of the legislature of a province. Further, they have powers, duties, or functions relevant to assessing the

2 environmental effects of the Milton Logistics Hub Project. These municipal powers are derived from the following legislative schemes: 1. Ontario environmental assessment law: Ontario s Environmental Assessment Act (OEAA) applies to municipal undertakings. Halton Region and the Town of Milton have regulatory responsibility to assess and regulate road, sewer, and water infrastructure, including two road-rail grade separations requested by CN for this project. 2. Ontario planning law: Halton Region has delegated provincial authority to exercise provincial planning responsibilities in the Region, including provincial requirements to assess various environmental effects from proposed projects or developments and demonstrate protection of key features or interests. Additionally, Halton Region and the Town of Milton hold direct land use planning authority to address physical change from those parts of the CN project that are not vital to its proposed railway and transportation works. The Ontario Planning Act applies to all private sector physical development within the boundaries of its municipalities. This regime includes land use plans and zoning by-laws to direct the physical development of these municipalities. Where, as is the case for this project, existing plans and zoning do not permit the physical changes proposed, there is need for official plan and zoning amendments. Provincial policy and existing official plans require that any such amendment include an assessment of the environmental effects of the development. 3. Ontario municipal law: under Ontario s Municipal Act, 2001, municipalities may enact bylaws relevant to assessing specific environmental effects. Presently, these by-laws include a Town of Milton by-law to regulate site alteration that is not federally assessed or regulated, or both. The Region and the Town are aware of the distinctive federal legal status of CN railway and transportation works; however, this distinctive status does not apply to the entire project. For the purposes of this letter, the Region and Town have the authority to assess and regulate the environmental effects of what CN proposes or owns that is not vital to its proposed railway and transportation works, and thus some, if not most, CN lands at the project site. On behalf of the Region and the Town, we look forward to a timely discussion with the Agency on how it proposes to carry out jurisdictional consultation and cooperation on this environmental assessment. The Region and Town recognize that, by virtue of your issuance of the Notice of Commencement of this environmental assessment on May 22 nd, you are now subject to a statutory timeline to complete your responsibilities for this EA. Detailed Reasons The reasons which follow support each of the conclusions set out above in the Overview. Page 2

3 1.0 Application of duty to consult other jurisdictions CEAA defines jurisdiction and sets out a duty to consult and cooperate with jurisdictions. This duty to consult is novel with the 2012 CEAA. The terms of this duty are set out below in Table 1. Table 1 Duty to Offer to Consult and Cooperate with other Jurisdictions Definition jurisdiction means (c) the government of a province; (d) any agency or body that is established under an Act of the legislature of a province and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project; Requirement 18. The responsible authority with respect to a designated project or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 must offer to consult and cooperate with respect to the environmental assessment of the designated project with any jurisdiction referred to in paragraphs (c) to (h) of the definition jurisdiction in subsection 2(1) if that jurisdiction has powers, duties or functions in relation to an assessment of the environmental effects of the designated project. The definition of jurisdiction may apply to a municipality in two circumstances: (1) the municipality is an agency or body established under provincial legislation and it has powers, duties, or functions related to assessing the environmental effects of the designated project that triggered EA; and (2) through delegation, the municipality is legally acting as a province for a specific matter. Under CEAA caselaw, an assessment of environmental effects is legally distinct from environmental assessment. Caselaw concludes that environmental assessment is a term of art under the CEAA. By contrast, the meaning of an assessment of environmental effects involves regard to any process that considers the environmental effects of a project: see Tsawwassen Indian Band v. Canada (Minister of Finance), 1998 CanLII 7586 (FCTD) at paras Based on the terms of CEAA, and taking into account the regulatory authority of these municipalities, Halton Region and the Town of Milton are each a jurisdiction within the meaning of s.18 of CEAA. Each municipality has multiple powers, duties, and functions related to assessing the environmental effects of this designated project. A. Halton Region is a Jurisdiction Halton Region is a jurisdiction on two bases: (1) it is a body corporate established under provincial legislation and it has powers, duties, and functions related to an assessment of the environmental effects of this designated project, and (2) the Province of Ontario has delegated to the Region the Page 3

4 approval authority for development within its boundaries. The Region s powers, duties, and functions to assess environmental effects arise under two Ontario Acts: the Environmental Assessment Act; and the Planning Act. A.1 Region requirement to carry out a new road project EA or amend existing road project EA to address various physical activities at Britannia Road required by the CN designated project The first relevant regime is the Ontario Environmental Assessment Act (OEAA). The OEAA applies directly to undertakings by municipalities. Moreover, through an approval issued under Part II.1 of the OEAA, Ontario municipalities are subject to the requirements of the Municipal Class Environmental Assessment (MCEA) for various infrastructure projects, including road projects. Where the MCEA applies, it requires an environmental assessment planning process that takes into account the OEAA definition of the environment. Table 2, below, compares the OEAA definition of the environment with the CEAA definition. CEAA s.2(1) Table 2 Comparison of CEAA and OEAA definition of environment OEAA s.2(1) environment means the components of the Earth, and includes: (a) land, water and air, including all layers of the atmosphere; (b) all organic and inorganic matter and living organisms; and (c) the interacting natural systems that include components referred to in paragraphs (a) and (b). "environment" means, (a) air, land or water, (b) plant and animal life, including human life, (c) the social, economic and cultural conditions that influence the life of humans or a community, (d) any building, structure, machine or other device or thing made by humans, (e) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from human activities, or (f) any part or combination of the foregoing and the interrelationships between any two or more of them, in or of Ontario; It is clear from this comparison of terms that the OEAA scope of environment is similar to, yet broader than, the CEAA definition. In the CN Project Description Report (PDR), CN advises that it requires a new signalized intersection at Britannia Road. CN provides no information on the existing status of Britannia Road. At present, the existing CN rail lines cross Britannia Road at grade. Britannia Road is presently a two-lane road. The Region plans to upgrade Britannia Road to become a four-lane road. It has carried out an environmental assessment under the MCEA for this purpose. Importantly, however, Page 4

5 the proposed improvements to this road are not scheduled to take place until some time after CN expects its project to be operating. Nor do the planned improvements include a signalized intersection or a crossing designed to accommodate the new CN-proposed railway lines that cross Britannia Road. CN has requested changes to what is now proposed by the Region. However, the Region has no EA approval for what CN now requests at Britannia Road. To accommodate CN, the Region would need to do additional EA work that complies with the MCEA. Such work would include a further assessment of environmental effects. On this basis, the CN project triggers a Region assessment of environmental effects. The precise scope of this assessment is not clear, but generally would include review of alternatives and their respective environmental effects. A.2 Region Planning Act requirement to assess environmental effects of new land uses that are proposed by CN, but not vital to its railway undertaking The Regional Municipality of Halton has a longstanding memorandum of understanding (MOU) with the Province of Ontario to exercise provincial Planning Act responsibilities in the Region. This MOU makes the Region responsible for protecting provincial land use policy interests, including provincial policy statements and implementation guidelines. These policy interests include requirements for assessments of environmental effects that demonstrate protection of natural heritage, cultural heritage, and agricultural resources, and human health and safety. The Ontario Planning Act requires all municipalities to adopt and maintain official plans to manage and direct physical change and the effects on the social, economic, and natural environment of the municipality or part of it. This Planning Act focus on physical change is similar to the CEAA focus on physical activities. Where a proposed physical change requires a municipal decision, such as rezoning, the Planning Act triggers a regulatory approvals process. This process requires regard to numerous topics related to an assessment of environmental effects. Table 3, below, compares the OEAA definition of the environment to the scope of Planning Act matters which require municipal attention for all municipal decisions under this legislation. OEAA s.2(1), definition of environment Table 3 Comparison of OEAA definition of environment to Planning Act mandatory considerations Planning Act matters of provincial interest (applicable to all municipal decisions and responsibilities under this Act) (a) air, land or water, (b) plant and animal life, including human life, - conservation and management of natural resources; - protection of agricultural resources; - supply, efficient use and conservation of water; - protection of ecological systems including natural areas, features and functions; Page 5

6 OEAA s.2(1), definition of environment Canadian Environmental Assessment Agency Table 3 Comparison of OEAA definition of environment to Planning Act mandatory considerations Planning Act matters of provincial interest (applicable to all municipal decisions and responsibilities under this Act) (c) the social, economic and cultural conditions that influence the life of humans or a community, (d) any building, structure, machine or other device or thing made by humans, (e) any solid, liquid, gas, (f) any part or combination of the foregoing and the interrelationships between any two or more of them, in or of Ontario; - protection of public health; - orderly development of safe and healthy communities; - adequate provision and efficient use of transportation, sewage and water services and waste management systems; - adequate provision of educational, health, social, cultural and recreational facilities; - adequate provision of a full range of housing and employment opportunities; - accessibility for persons with disabilities to facilities, services and matters; - protection of financial and economic well-being of Province and municipalities; - protection of public safety; - conservation of features of significant architectural, cultural, historical, archaeological or scientific interest; - promotion of development that is designed to be sustainable; - appropriate location of growth and development; - resolution of planning conflicts involving public and private interests; - co-ordination of planning activities of public bodies; This comparison shows that, as compared to the OEAA definition of the environment, the Planning Act requires consideration of a broad array of development effects. Recalling the comparison set out above in Table 2 between CEAA and the OEAA, the Planning Act matters requiring Region and Town attention include, but are not limited to, the CEAA scope of environmental effects. This broad array of required considerations applies to the development and amendment of municipal official plans. Ontario has established two tiers of municipalities within Halton Region: the Region as an upper-tier municipality, and the Town of Milton and three other municipalities as lower-tier municipalities. Applying this two-tier arrangement to official plans, the upper tier plan is the Region official plan (ROP), and the lower tier plans are the plans of local municipalities in the Region, such as the Town. By provincial law, all local official plans must conform to the ROP. Further, through delegation from the Province, the Region is the approval authority for amendments to the Town of Milton Official Plan. The CN project does not conform to the ROP or the Town Official Plan. This means that CN will need to apply to the Region and Town for official plan amendments. Page 6

7 Where a proponent requires an official plan amendment, the Planning Act sets out numerous regulatory requirements to govern the approval process. These include regard for the provincial interests set out above, but also include more onerous standards. Two key standards are legal requirements that municipal decisions demonstrate (1) consistency with applicable provincial policy statements, and (2) conformity with applicable provincial plans. Thus, to amend the ROP to authorize this project, CN will need to show that such amendment conforms to applicable provincial plans and is consistent with the applicable provincial policy statement. Like the ROP, the applicable provincial policies and plans address physical change in a municipality and also require the assessment of environmental effects. Within Halton Region, an applicant for any official plan amendment must prepare and submit numerous studies to address these requirements. These studies include studies of physical effects such as changes to air, land, and water, studies of biophysical effects such as environmental impact statements and watershed studies, cultural studies of heritage features and landscapes, and socio-economic studies of proposed residential and employment densities, opportunities for intensification, and phasing of infrastructure and development. Taken together, all of these regulatory requirements for an ROP amendment involve a wide-ranging and detailed assessment of environmental effects from a proposed project or development. Conclusion In sum, Halton Region is a jurisdiction within the meaning of s.18 of CEAA. B. Town of Milton is a Jurisdiction The Town of Milton is a jurisdiction because it is a body corporate established under provincial legislation and it has powers, duties, and functions related to an assessment of the environmental effects of this designated project. Its assessment powers, duties, and functions arise under three Ontario Acts: (1) the OEAA, (2) the Planning Act, and (3) the Municipal Act, 2001, which authorizes the site alteration by-law passed by the Town under the Municipal Act, B.1 Municipal requirement to carry out a road project EA as part of the physical activities required by the CN designated project The first regime relevant to Town status as a jurisdiction is the OEAA. As set out above, the OEAA applies directly to undertakings by municipalities. Moreover, through an approval issued under Part II.1 of the OEAA, Ontario municipalities are subject to requirements of the MCEA for various infrastructure projects, including road projects. In the PDR filed by CN, CN advises on the Components of the Proposed Development. Table 3 from the PDR sets out the following: Page 7

8 Excerpts from CN PDR Table 3 Components of Proposed Development Project Component Description C. New Third Party Infrastructure Lower Base Line Crossing Proposed: Approximately 40 to 55 m long underpass on Lower Base Line with clearance beneath the hub and mainline tracks. Alternative: Diversion of Lower Base Line on CN property with overpass to line up with 2nd Sideroad at Tremaine Road. By describing this crossing as New Third Party Infrastructure, CN is advising that it is not the proponent of this proposed crossing. Instead, CN requires that the Town of Milton be the proponent. The MCEA applies specifically to a municipality engaged in the Construction of new grade separations. The MCEA defines a grade separation as a crossing of a railway and a road at different levels or a crossing of two roads at different levels without interconnecting ramps. Where the MCEA applies, it sets out a five-phase process to assess the environmental effects of triggered projects. Having regard for this process and the OEAA definition of the environment (set out above in Table 2), it is clear that the required crossing project involves the Town in an assessment of the environmental effects of the CN project. The precise scope of this assessment is not clear, but the MCEA requires review of alternatives and their environmental effects. B.2 Municipal requirement to assess environmental effects of new land uses proposed by CN, but not vital to the CN railway undertaking Under the Ontario Planning Act, the Town of Milton has passed a comprehensive zoning by-law. This by-law presently applies to all CN lands other than the existing railway lines. The area is zoned Agricultural (A1). This zoning does not permit what CN proposes to do, in whole or in part. The railway lines and other aspects of the CN project that are vital to the railway and transportation works are not subject to Town zoning; however, based on the PDR, the Town concludes that CN is subject to Town zoning for at least some, if not most, of the lands identified for this project. By way of illustration, the PDR presentation of the new railway lines identifies a railway zone of approximately 60 ha; however, CN advises that the project covers 400 acres (~160 ha). Absent greater detail from CN, the Town expects that CN requires rezoning for approximately 100 ha of the project site. Based on a recent presentation to Region Council, the Town now believes that CN is also seeking to change existing land use for other CN lands around the project site. The Town understands that CN owns over 500 ha of land in the area of the project. In response to questions, CN advised Region Page 8

9 Council that it intended to develop such lands for new trails. The PDR makes no mention of this proposal but, if true, CN requires rezoning of these lands also. Where a proponent requires rezoning, the Planning Act triggers a regulatory approvals process. This process includes an assessment of the environmental effects of the rezoning, and must have regard to numerous other effects, set out above in Table 3. The CN project also requires amendment of the Town Official Plan to authorize a rezoning to the CN uses. To amend the Town Official Plan, an applicant must prepare and submit numerous studies which include studies of effects on the biophysical environment, and thus air, land, water, and wildlife. Other regulatory requirements include: (1) consistency with applicable provincial policy statements, and (2) conformity with applicable provincial plans. As summarized above, these regulatory requirements involve an assessment of environmental effects. B.3 Municipal requirement to assess environmental effects of site alteration required by the CN designated project The Town of Milton has a site alteration by-law. By-law has the following stated objective: A by-law to protect and conserve topsoil and for prohibiting or regulating the alteration of property within the Town of Milton This by-law advises that it was passed under s.142 of the Ontario Municipal Act, 2001, as amended. This by-law relates directly to the environmental effects identified in CEAA. The by-law is concerned with land, land is part of the CEAA definition of environment, and CEAA environmental effects include changes to the environment. The by-law further advises that to obtain a site alteration permit, a director appointed by the Town must be satisfied that, among other things, the proposed site alteration will not result in: (a) erosion; (b) blockage of a watercourse; (c) siltation in a watercourse; (d) contamination of a watercourse; (e) flooding or Ponding; (f) a detrimental effect on any Vegetation that has been designated for preservation; or (g) an undue detrimental effect on the natural environment of the area. Virtually all of these topics involve environmental effects within the CEAA definition of environment. To satisfy the director that an application will not have these effects, the by-law advises that an application for a site alteration permit must be complete, and that an application is not complete Page 9

10 until it includes any report required by the Town. Examples of required reports are archaeological report, vegetation analysis, environmental impact assessment, or geotechnical report. On these bases, the Town s site alteration approval process includes an assessment of environmental effects within the meaning of the CEAA. Based on recent litigation, the Town s site alteration by-law has broad application to CN lands identified for this project. In Burlington Airpark Inc. v. Burlington (City), 2014 ONCA 468, the City of Burlington applied its municipal site alteration by-law to runway construction at an aerodrome. The Court described the by-law as regulating the use of landfill for the protection of the environment and for the safety, health, and welfare of municipal residents. Of relevance to the CN project, the Court rejected arguments that this by-law was not applicable to the airpark lands because these were subject to federal jurisdiction over aeronautics. Conclusions: In sum, the Town of Milton is a jurisdiction within the meaning of s.18 of CEAA. CONCLUSIONS This letter provides detailed support for the municipal position that Halton Region and the Town of Milton are each a jurisdiction within the meaning of s.18 of CEAA. These two municipalities hereby request a meeting as soon as possible with Agency personnel. Further, they look forward to your offer on how you propose to consult and cooperate with these municipalities for the Agency s environmental assessment of the CN project. We look forward to hearing from you. Sincerely, GOWLING LAFLEUR HENDERSON LLP Rodney Northey RVN:mh Page 10