Friday, April 8, 2016

Sudbury's Maley Drive: A Case Study in the Erosion of Species at Risk Protection in Ontario

Yesterday, Prime Minister Justin Trudeau came to town to announce that the federal government will be contributing one third of the estimated funding needed for the City of Greater Sudbury to complete Phase 1 of the Maley Drive Extension project.  The feds' $26.7 million contribution will be added to the commitment made by the Province of Ontario just before the Sudbury by-election, and to the City's one-third share, of which the City currently has a little less than half. All together, Phase 1 of Maley Drive is expected to cost $80.1 million.

Phase 2 of the project may cost anywhere between $50 and $70 million, ans is currently without funding.

The Maley Drive Saga

The History of Maley Drive is lengthy, and documented elsewhere (for a decent, if biased account, see: "No Social License for Maley Drive, Phase 1," Sudbury Steve May, January 27, 2016).  With this depth of history behind the project, it's little wonder that many Sudburians are eager to see the road move forward, even at a time when only modest growth is being projected by the City over the next 20 years (just 10,500 people - see "Taking a Closer Look at Maley Drive, Part 3 - Expectations for Growth," Sudbury Steve May, November 12, 2015, and more specifically see: "Growth Outlook to 2036, City of Greater Sudbury," Hemson Consulting Ltd., May 2013).

But what's changed recently has been the discovery that species at risk - specifically, blanding's turtles and whippoorwills, are now making their home in the wetland complex through which Maley Drive will be built.  The Junction Creek Stewardship Committee, a local organization that has been working for years to restore Junction Creek and its tributaries, bringing the watershed back to life after being poisoned by decades of mining and smelting in the area, discovered blanding's turtles living in the watershed a few years ago.  Interestingly, the Junction Creek Stewardship Committee's turtle survey was funded in part by the Province of Ontario (see: "Province shells out funds for turtle research," Northern Life, July 18, 2013).

What's Going On?

That’s interesting because the province of Ontario is one of 3 governmental partners that will fund the destruction of blanding’s turtle habitat.  It’s not clear to me that the province was initially aware of the presence of species at risk habitat when it signed on to fund Maley Drive back in 2014 (see: "Is the Province of Ontario Funding the Destruction of Species at Risk Habitat?" Sudbury Steve May, March 21, 2016).  I’ve been trying to find out more information about who knew what and when about the presence of species at risk habitat in the Maley corridor, but at the present time, the information available to the public is scarce.

After requesting copies of studies pertaining to species at risk referred to in the City of Greater Sudbury’s recent Business Case Report in support of the Maley Drive Extension Phase 1 project (see page 24 of 29 of the "Maley Drive Extension - Phase 1 Business Case Report", City of Greater Sudbury, February 19, 2016 - specifically, Section 10.2 of the Report), I’ve been told by City Staff that they are not going to be made available to the public because they contain sensitive information about species at risk.  Recently, I filed a Freedom of Information request for correspondence between the City and provincial ministries related to species at risk and the Overall Benefit Permit to harm habitat that the City of Greater Sudbury is now seeking to obtain from the Ministry of Natural Resources and Forestry.  Yesterday, I received a response from the City that the documents I’m looking for will cost me almost $800 to obtain.

Maley Drive and the Environmental Assessment Process To Date

Typically, new road developments like the Maley Drive Extension project have to go through a Class Environmental Assessment before they proceed.  A Class EA was undertaken for both Phase 1 and Phase 2 of the Maley extension project back in 1995.  That EA did not identify the existence of species at risk in the study area, although it did identify a wetland in the middle of the preferred corridor for Maley.  It was the 1995 EA which ultimately recommended that Maley corridor as being the best of several alternative routes for Maley.  Had that study determined that species at risk were inhabiting the wetland, it’s entirely reasonable to believe that an alternative route might have been selected.

In 2008, an update to the 1995 Class EA was undertaken, because the Maley project had been expanded, and the vintage of the earlier EA was past expiration.  This addendum to the 1995 Class EA also failed to identify the presence of species at risk habitat in the wetland through which Maley will traverse. 

Species at Risk in the Junction Creek Watershed

Look, it very well may be that the species at risk were not physically present in the wetland in 1995 or 2008.  Junction Creek should be an urban treasure in our community, but for too long it’s been treated as little more than an open sewer. The Junction Creek Stewardship Committee has been doing some awesome work in its efforts to restore the creek’s watershed.  They've been re-introducing brook trout into the creek, as well as organizing annual clean-up events.  And they’ve been asking for the public to help them out by reporting sightings of rare fauna, like blanding’s turtles.

The restoration of the Junction Creen watershed has been a part of a larger renaturalization effort to re-green the Sudbury basin.  Decades of dirty mining practices have left visual scars on our landscape, as well as more insidious poisons in our soil.  You may have heard about the “moonscape” that used to be Sudbury – black rocks barren of trees and vegetation, thanks to low-level atmospheric pollution from mining and smelting.

In the 1970s, the community embarked on a serious effort to heal the landscape – bringing blasted and barren areas back to life through tree planting and other restoration projects.  The seeds planted in the 1970s have yielded more than just the new trees that now dominate our landscape - stewardship organizations abound in the City, with mandates to protect and restore degraded lakes and river systems.  The Junction Creek Stewardship Committee is probably the most prominent, given that its mandate impacts an urban watershed that is home to about 50,000 people – a quarter of the City’s population.

A New Environmental Assessment for Maley

In response to a recent public consultation process regarding Maley Drive, the Junction Creek Stewardship Committee wrote an eye-opening letter to the City of Greater Sudbury, urging the City to undertake a new environmental assessment for the project (see the March 18, 2016 letter beginning on page 26). These concerns were echoed by other Sudburians, including prominent Maley Drive critic and Co-Chair of Sudbury’s Friendly to Seniors organization, John Lindsay, who wrote to the Ministers of Environment and Climate Change and Natural Resources and Forestry, urging them to put a halt to the Overall Benefit Permit process and require the City of Greater Sudbury to undertake a new environmental assessment (see Mr. Lindsay’s submission, which begins on page 79).

Lindsay’s contention is that since the environmental circumstances have changed from the time of the two previous environmental assessment undertakings, due to the presence of species at risk in the study area, that a new environmental assessment based on up-to-date information should now be undertaken, in order to provide a better picture of the anticipated environmental impacts that the Maley project will have on all existing features, including the species at risk.  That seems like a sensible approach – one which appears to be supported by the Ministry of Environment and Climate Change’s Code of  “Code of Practice” for“Preparing, Reviewing and Using Class Environmental Assessments in Ontario”, which indicates in Section 6.2.10, “Changing a Project After the Planning Process is Complete”, in the “Lapse of Time” subsection that,

“There may be instances where a proponent may not implement a project for some time (for example, five years) after the project planning process is complete. The end of the project planning process in this context is defined as either the end of the review period after the Notice of Completion is issued (no Part II Order requests), or the Minister or delegate denies a Part II Order request. The proponent should provide in the class environmental assessment a procedure for proponents to follow in these cases. When a lapse of time has occurred (exact time should be defined in the class environmental assessment), the proponent must review the project to ensure that no changes are required. Changes could be required to the project because, for example, the environmental conditions have changed, and the impact management measures are no longer valued. There could also be new government policies or standards or new engineering technologies.  The results of the review of the project should be documented.” (pages 84 & 85, “Code of Practice: Class Environmental Assessments”)

Maley Drive: Broader Implications for Biodiversity in Ontario

What has become apparent is that the City of Greater Sudbury, in co-ordination with the Province of Ontario and now the Government of Canada, is intending to build a new road project through the critical wetland habitat of two species at risk (blanding’s turtle and whippoorwill) without first having undertaken an environmental assessment which looked at alternatives to the location of the road.  That this can be happening in 2016 simply defies belief.

And yet, here in Ontario, it may very well be that the destruction of species at risk habitat in favour of a new road can proceed – as long as the right permits are in place from the Ministry of Natural Resources and Forestry.  An Environmental Assessment of the road project that looks at impacts on species at risk may not actually be a necessary starting point.  As long as the permit is in place, a project is good to go.

The implications of this approach to managing species at risk are simply huge. Rather than going through a public environmental assessment process which looks at anticipated impacts and potential alternatives to those impacts, the precedent will be set for decision-makers to simply skip directly to the Overall Benefit Permit process (a process which happens behind closed doors and does not involve the public), which will further erode the habitat protections offered to species at risk through the Province’s Endangered Species Act.

With both the provincial and federal levels of government willing to pony up tens of millions of dollars of funding to make Maley a reality, can the ultimate outcome of how this process unfolds be in doubt?  That’s not just a rhetorical question – it’s part of a plea to province-wide organizations which are concerned about the health of species at risk in Ontario, like the CPAWS Wildlands League, which has been challenging the government of Ontario to live up to its commitment to protect species at risk as per provincial legislation.  The Wildlands League will be appearing before the Ontario Court of Appeal with regards to a lower court ruling on Ontario Regulation 176/13, which sets up the Overall Benefit Permit process that allows the habitat of species at risk to be destroyed, despite the clear provisions of the Endangered Species Act – legislation which is supposed to protect species at risk from harm.

Elsewhere in Ontario, the issuance of Overall Benefit Permits to destroy the habitat of blanding’s turtles have already been discussed in court cases.  In Prince Edward County, local environmental organizations opposed an industrial wind farm on Ostrander Point where a number of service roads would be constructed through turtle habitat (see: “Ontario court of appeal says endangered turtlestrump windfarms,” the Financial Post, April 20, 2015).  While this matter remains on-going, it does provide those concerned about the province’s role in protecting species at risk with some degree of optimism that ultimately the notion of “doing the right thing” might prevail.

Protecting Species at Risk: Politicians Not Doing The Right Thing

And what is the “right thing” to do with Sudbury’s Maley Drive?  One might think that it would be to have all necessary environmental approvals in place before deciding to barge ahead with funding commitments from senior levels of government.  As I indicated before, at the time of the provincial funding commitment, it may have been unclear to Wynne Liberal government that the Maley corridor had re-occupied by blanding’s turtles.  But since the existence has come to light (which may have happened as early as March, 2015), what actions has the government taken?

At yesterday’s federal funding announcement, Sudbury MPP Glenn Thibeault was present to support his fellow Liberal MP’s and the Prime Minister.  The message was clear: Liberals at all levels of government are delivering Maley Drive to the citizens of Greater Sudbury!

The message was very clear: Liberals at all levels of government simply don’t give a damn about species at risk, and are determined to plow this road through one of the Sudbury basin’s larger wetland complexes (which has still not been evaluated by the Ministry of Natural Resources and Forestry to determine significance), and bringing harm and destruction to the habitat of threatened species.

A Renewed Effort to Re-Green, Biodiversity At Risk - Sudbury

Sudburians who pride themselves on our decades-long project of regreening our community are no doubt feeling that our international image has been tarnished by the reckless acts of our municipal, provincial and federal governments.  Our Mayor and municipal Council has brought shame to our City by endorsing this project.  Elected officials who have been outspoken Maley supporters, including Sudbury MP Paul Lefebvre, Nickel Belt MP Marc Serre and Sudbury MPP Glenn Thibeault also share the blame of putting road building ahead of their responsibility to protect species at risk.  And finally, the Prime Minister, who must have been briefed on the presence of species at risk before yesterday’s funding announcement, will certainly wear the decision to proceed with Maley Drive as a priority over looking after the interests of endangered animals.

It’s 2016. It’s well past the time that we as a society took our obligation to protect our natural heritage seriously – especially those species whom humanity has placed at risk of extinction.  But it looks like not everyone agrees.  That’s why 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.  You’ll be hearing more from this group over the coming months.  Please contact me directly if you have an interest in lending your voice and any other resources that you can spare to this worthwhile initiative. I can be reached at:

(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)

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