Intervenor: Vol 24. No 3 July - September 1999

CELA is Intervening in The Red Hill Case

Red Hill Valley remains one of the natural jewels of southern Ontario. Located along the border between the cities of Hamilton and Stoney Creek, the valley connects the Niagara Escarpment to Lake Ontario. Red Hill Creek and its tributaries run through the length of the valley, creating three scenic waterfalls along the escarpment. The largely forested valley is the only remaining natural area in reasonable condition linking the Niagara Escarpment with the Lake Ontario shoreline. Some 600 species of plants and over 40 species of butterflies and 25 species of mammals including mink, coyote, southern flying squirrel, fox and deer have been sited in the valley. There are over 170 species of birds (and over 70 breeding species) in the Valley, making it a very significant migratory corridor.

Red Hill Creek drains over half of the area of the City of Hamilton and is the second largest stream entering Hamilton Harbour. Twenty-three species of fish have been found in its waters in the last four years. Large spawning species include Northern Pike, Chinook Salmon, White Sucker and Rainbow Trout. Over four kilometres of the world famous Bruce Trail is located in the southern portion of the Valley and a recently constructed multi-use trail provides pedestrian and cyclist access to other parts of the area. Numerous archeological discoveries indicate that the Valley has a long history of human use and occupation dating back thousands of years.

It is also used for recreational purposes by area residents.

The Expressway Proposal

The problem is that the Regional Municipality of Hamilton-Wentworth has been attempting to clear legal hurdles to build a six lane expressway through the Valley. If the expressway is constructed, some 40,000 trees would be cut down, long sections of the Creek channelized and valuable wildlife habitat lost. It now appears that the fate of the Red Hill Valley will be determined by the outcome of the federal environmental assessment process, a process that is being challenged by the Region in federal court.

In the Red Hill Valley there are:

600 species of plants
40 species of butterflies
25 speciesl of mammals
170 species of birds

The saga of the Red Hill expressway is a long one. Proposals for the expressway can be traced back to the 1950s, although support for the expressway has always been fractured. The expressway began a life of its own with the formation of the Regional Municipality of Hamilton-Wentworth in the late 1970s. In the early 1980s, formal applications for both land planning and environmental assessments were submitted, resulting in the referral of the matter to a Consolidated Hearings Board hearing (with two members from the Ontario Municipal Board and one from the Environmental Assessment Board) in 1985. The hearing resulted in a 2 to 1 decision in favour of the undertaking (with the EAB member dissenting).

The next chapter of the story is in 1990 when the NDP government withdrew funding for the construction of the expressway citing environmental grounds for its decision. During the NDP tenure, David Crombie was called in hope of arriving at some solution to what was then (and remains) a hotly debated political issue. Crombie came up with a transportation plan that called for a four-lane arterial road that would, by and large, preserve the integrity of the valley. Despite considerable support for the proposal, it was rejected by the Region.

In 1996, the Region applied for, and subsequently received, an exemption under the provincial Environmental Assessment Act. This exemption was necessary, because of a change in the alignment of the expressway through the valley, and because a number of issues were not dealt with in the 1985 hearing.

Meanwhile, the Friends of Red Hill Valley (the organization opposing the expressway) was arguing that the project should be subject to the federal Environmental Assessment Act. (Approval is required under the Fisheries Act, which would then trigger the federal assessment statute).

By early 1998, the Department of Fisheries and Oceans did begin the process under the Environmental Assessment Act. Even before the completion of the screening, the federal environment minister announced that the matter will be referred to a panel review under the Act. Panel members named are Sally Lerner, Nick Mulder and Ray Effer.

Current Situation

The region continues to vigorously fight for the expressway and is opposing the federal environmental assessment process. In August of 1999, the Region launched a judicial review in Federal Court challenging, among other things, the constitutionality of the federal assessment law, the application of the statute to the undertaking, and appointment of the panel.

On behalf of the Friends of Red Hill Valley, CELA has sought to intervene in these proceedings in order to ensure that those who want to save the Valley have a voice at the hearing. The Friends of Red Hill Valley now has 600 members who have dedicated themselves to the preservation of the Valley.

CELA will find out its status at the judicial review in the very near future.

Paul Muldoon is a lawyer at CELA