Doug Ford and Patrick Brown want developers, not the public to shape the places where you live

By: Isaac Callan, Local Journalism Initiative Reporter, The Pointer

In The Campaign, a 2012 comedy starring Will Ferrell, two wealthy brothers attempt to hijack a US congressional election and install a candidate who will advance their plan to redevelop a small southern town into a giant Chinese-style factory hub.

A premise is that government, more specifically politicians, shouldn’t have to listen to the citizens they’re supposed to take their direction from.

It’s a piece of Hollywood fiction unfolding in the all too real world of planning and development in Ontario circa 2021.

That’s the central finding of a damning annual report into Ontario’s Environmental Bill of Rights released in November by the province’s Auditor General, Bonnie Lysyk.

Through 172 fiercely detailed pages, and again in a report into land-use published this month, Lysyk and her team have chronicled repeated violations by Queen’s Park of the fundamental right to be consulted when the places where Ontarians live are shaped for future growth and development.

“These environmental rights are comparable to other legislated rights, such as the right to access government information, the right to receive public services in French, and the right to a safe and healthy workplace granted by other laws,” the November report says. “Collectively, such laws aim to protect Ontarians’ rights to be accommodated and to participate in government processes.”

A reliance on previously rarely used Minister’s Zoning Orders (MZOs) at the local level in Brampton, in particular, has compounded this problem.

Since September, council members, often led by Mayor Patrick Brown, have sent seven requests for MZOs that cut the public out of the planning process by seeking the provincial tool which acts as a type of supreme planning power, negating the usual requirement for a comprehensive local land use process. Four of those requests were walked onto public meeting agendas without giving the public any warning.

Caledon also requested an MZO for a massive 2.2 million-square-foot warehouse in the protected Greenbelt and Mississauga was granted the ability to sidestep the planning process on a new film studio after seeking out an MZO for the project.

“MZOs are being used to fast track development and circumvent normal planning processes,” the auditor general’s December report on land use says. “Planning processes that often take months or years to complete because they ensure that sufficient due diligence is conducted through technical studies and public consultation are being bypassed by MZOs.”

Premier Doug Ford and his Progressive Conservative caucus have embraced MZOs since winning election in 2018. The once-rare planning tool has become a go-to for the Province, developers and their friendly municipal politicians. In Mississauga’s case, impatience around the studio plan and its potential economic benefits won out over the usual timeline for a locally approved process.

It is all in the name of speed and profit at the expense of the rights that Ontario residents are legally entitled to.

Instead of modernizing the local planning process, leaders with all the power, influenced by wealthy developers who give “generously” to their campaigns, have simply decided not to bother with it.

The number of MZOs approved by Queen’s Park went from roughly one per year under previous governments to 44 between March 2019 and March 2021. That is before the avalanche of requests Brampton City Council sent to Queen’s Park in the fall is factored in. One has already been approved.

A flagrant disregard for the process by the municipal and provincial governments has already led to embarrassing results.

Brown and others on council were left red-faced last week after representatives from two major companies chastised them for an MZO request they had made, seemingly with zero consideration of even basic due process. The Order request, passed in October for a massive residential development in the Bramalea area of Brampton, threatened to rezone employment lands that host around 2,500 jobs. The City and its elected officials failed to even inform the potentially impacted landowners.

In October, pushing forward the request, Mayor Brown said the current planning process had “created a housing crisis”. He suggested that avoiding the comprehensive public planning process would make housing more affordable in his city.

Brown has pushed for budgets at the Region of Peel that fail to adequately invest in affordable housing, because he does not want to spend the money.

MZOs have put Ontario’s developers in the driving seat.

“Since 2019, the Province has publicly indicated numerous times that the reason for issuing recent MZOs is to overcome potential barriers and delays to development,” the auditor general’s report states. “This approach treats the land-use planning process as a hurdle.”

The traditional planning process is rooted in consultations, notice periods, public meetings and extensive studies to ensure environmental compliance and adherence to a range of other standards. It offers residents, activists or businesses multiple opportunities to comment on proposed changes to how a city is built. By treating the standard process “as a hurdle” government that is accountable to the electorate also regards consultation as a barrier to its plans.

Queen’s Park, which has the ultimate authority over whether or not an MZO is approved, has kicked all responsibility to consult onto the municipal councillors that make MZO requests. Steve Clark, the Minister of Municipal Affairs and Housing, which handles MZOs, has told municipalities they must consult before requesting an MZO, without actually checking if that consultation takes place.

“As you are aware, it is my expectation that when requesting an MZO, municipal Councils have done their due diligence and conducted proper consultation in their communities, including with the public and other impacted stakeholders, before the local municipal Council sends any request for an MZO to me for consideration,” Clark wrote to the City of Brampton on November 25. The letter confirmed the approval of an MZO for a new subdivision on a golf course.

He or his team would only have had to check the City of Brampton’s September 29 agenda to see the request was walked onto the agenda with no notice. The due diligence that Clark says is his “expectation” did not take place, yet he granted the MZO anyway. This contradiction was made even clearer by another line in Clark’s letter explaining to the City of Brampton that the Huron-Wendat Nation had interest in the history of the site and had not been consulted.

“We understand that Huron-Wendat Nation have expressed interest in this project and have requested to be engaged on the next steps,” Clark wrote. “This includes the assessment of the lands for archaeological resources.”

Clark and Brown, both Conservatives, appear to be playing a game, conveniently pointing to each other to deflect from their own responsibility.

When Brampton sent off the MZO request for the massive residential development in Bramalea in October, after less than four minutes of discussion and without even informing the impacted commercial landowners, the City suggested the onus to consult with local stakeholders was on Queen’s Park.

“The Minister of Municipal Affairs and Housing reviews MZO requests and determines what technical issues are present and whether public consultation should occur in advance of a decision on the matter,” a City spokesperson told The Pointer at the time.

The Province refuted that suggestion.

“It is our expectation that municipalities have done their due diligence and have conducted proper consultation in their communities before any request for an MZO comes to the Minister for consideration,” Conrad Spezowka, a spokesperson for the Ministry of Municipal Affairs and Housing, said, after Brampton Council approved the request to have the Province issue an MZO to spring the huge development proposal.

But it’s clear, neither government is doing any due diligence, even the bare minimum to protect the public process, before pushing development applications through using MZOs.

In fact, Brampton council has provided no meaningful consultation before making requests for MZOs, despite dealing with the developer requests at length away from the public eye, according to a recent freedom of information disclosure.

In public, across all seven meeting items on the requests, councillors engaged in a total of 44 minutes and 33 seconds of discussion, including process wrangling, brief procedural explanations from staff and voting. Each motion received an average of around six minutes of engagement without time for the public to offer any guidance or concern.

The lack of public discussion does not appear to tell the whole story.

Behind the scenes, councillors are engaging in numerous communications that relate to the pursuit of MZOs. A freedom of information request submitted by The Pointer for all digital correspondence between council members and other officials from June to October on the subject of MZOs returned “over 1,700 pages of responsive records”, which have not yet been released.

The Pointer has not yet been granted access to these records, pending a decision on the cost to obtain documents that are in the public interest.

It’s unclear, if the records are eventually released, whether or not information will be redacted.

“Our audit concluded that the Ministry of Municipal Affairs and Housing (Ministry) does not have effective procedures and systems in place to ensure that land-use planning in the Greater Golden Horseshoe is consistent with good land-use planning practices,” the auditor general wrote.

Brampton’s recent use of MZOs pushed the City’s own environmental advisory committee to criticize the council it serves. A motion passed by the committee asked councillors to hold back on their use of the MZOs. Under questioning from committee members, staff admitted they were not always in support of the MZO motions driven by council members.

“Staff really are here to try to accommodate and serve the will of council,” Allan Parsons, Brampton’s director of development services, told the committee. “We’ve shared through to council that it’s not our recommendation that they proceed that way.”

This failure to consult the public, private discussions and decisions to overrule staff are more than just a minor inconvenience, they are part of a broader trend. It is an indication of governments that are willing to trample on the rights of local residents, a theme that runs through the auditor general’s scathing reports.

Lysyk’s work goes beyond the use of MZOs, which can pose a threat to the climate depending on the application they push forward. Her office also found the Province is failing to consult on multiple issues, falling well short of its duties under the Environmental Bill of Rights, which states Ontario residents should have the opportunity to participate in government decisions that impact the environment.

The Province has also pushed forward controversial legislation to reduce the environmental studies for two of its signature highway projects, the Bradford Bypass and GTA West Highway, also known as the 413. The new rules mean early works, including the construction of bridges, can begin before all tests and studies have been carried out. The Bradford Bypass is being based on an assessment from 1997 and an expert panel recommended against the GTA West Highway in 2018.

If the failure to make decisions around these massive transportation corridors leads to further destruction of Ontario’s ecosystems and lends to climate change, which the auditor general’s greenhouse gas emissions report suggests would be the case, it is unlikely to impact all Ontarians equally. The rights enshrined in Ontario law protect the most vulnerable first.

Research into the impact of climate change shows it hurts the least wealthy members of society first.

“Poor people have fewer resources to fall back upon and lower adaptive capacity,” Stephane Hallegatte, Marianne Fay and Edward Barbier write in their exploration of poverty and climate change. “But – because their assets and income represent such a small share of national wealth – poor people’s losses, even if dramatic, are largely invisible in aggregate economic statistics.”

Most research in this area has been done in developing nations, but it could equally be applied to Peel.

In the event of catastrophic flooding, for example, the family living in a basement unit in Brampton is going to be harder hit by the effects of climate change than the person who lives in a large, detached home. If both families see their basement flood, one may lose belongings or a rec room under their house, while the other would see their entire home destroyed.

When environmental rights are trampled upon and ignored, speeding up the impacts of climate change, that has the potential to hurt society’s most vulnerable first. A failure to invest in adaptation measures will also apply harm unevenly.

The planning process in Ontario is lengthy to avoid exactly these issues. Developments in flood plains are limited to reduce the chance of water damaging homes, businesses and crucial public infrastructure, while wetlands play a key part in maintaining nature’s balance. When this process is cancelled in the name of so-called economic expediency, the government throws the baby out with the bathwater.

The auditor general has been particularly critical of how the Ford government has changed its rules around MZOs. Her report makes it clear Queen’s Park is deliberately circumventing the rules and abdicating its responsibility.

A partial public consultation on how the planning tool should be used was launched online late last year and gained significant interest from the public and municipalities. “Despite high public interest and recommendations from commenters, including municipalities, to limit or guide the Minister’s discretion in using zoning orders, the Ministry stated that it would not propose any changes to the Planning Act as a result of this consultation,” the auditor general explains.

But, on the same day that the Ministry said no changes would come from the consultation, it introduced an amendment to the Planning Act that allowed an MZO to disregard the Provincial Policy Statement (rules that broadly define responsible planning) unless it was in the Greenbelt. Public interest in the issue was clear: in December 2020, the Province received 507 comments relating to enhanced MZO powers for the Province, the vast majority critical of what the PCs were doing.

After receiving feedback from the public and cities that asked to rein in MZOs and govern them with more rules, Steve Clark instead handed himself more powers to deviate from standard planning.

“Many commenters raised concerns with the dramatic increase in the use of MZOs for developments, several of which have the potential for significant adverse environmental impacts,” the report says. “Many of the commenters did address the enhanced authority, including some that raised questions about the Ministry’s capacity to take on this responsibility, and that recommended that the provisions be repealed or adjusted.”

In a September decision, the Ontario Divisional Court determined that the Province broke the law when it failed to follow key rules around environmental consultation. The decision said Clark and his office acted “unreasonably and unlawfully” when they failed to consult about changes to the Planning Act regarding MZOs.

Minister’s Zoning Orders are not the be-all or end-all of environmental policy, but a broader symptom of the erosion of rights that are enshrined in law to protect us all. It’s an erosion Brampton’s mayor, certain senior staff and some councillors are engaging in willingly.