Ford government expanding MZO powers to dodge lawsuit and pave over wetland: internal document

Ontario is clearing the way for a contentious casino development that will pave over a protected wetland by retroactively changing land zoning laws, an internal document shows.

Bill 257, introduced Thursday by the Progressive Conservatives, will allow the government to use an unappealable directive called a ministerial zoning order (MZO) even if it clashes with a provincial master plan that outlines planning rules.

An internal document obtained by Canada’s National Observer indicates the legislation, which will apply to all MZOs retroactively, is designed to head off a court challenge to the Durham Live casino development.

To fast-track Durham Live, the Ford government issued an MZO in October allowing a warehouse connected to the project to be built on top of a protected wetland, against provincial policy. The lawsuit seeking to have that order overturned was filed by environmental non-profits Ecojustice, Environmental Defence and Ontario Nature.

“In the absence of the proposed amendments to the Planning Act, 1990 — in particular the proposal for retroactive application — there is a moderately high risk that the MZO would be found to have contravened (provincial policy),” the internal document reads.

Adam Wilson, a spokesperson for Municipal Affairs Minister Steve Clark, declined to comment Friday morning.

“As this document is subject to cabinet confidentiality and is considered solicitor client privilege we will not be commenting,” he said.

Later Thursday afternoon, the government also ordered the Toronto and Region Conservation Authority (TRCA) to issue a permit for Durham Live by March 12.

“The Ford government is bent on the destruction of greenspace and wetlands to make a smoother path for developers,” said the NDP MPP Jennifer French, who represents a riding in the nearby city of Oshawa. (The NDP also obtained a copy of the document.)

“They are rewriting the rules to protect themselves from lawsuits, and hand more unchecked power to their greedy developer friends and PC party donors to destroy the environment and muzzle every effort by local communities to stop them.”

Government previously expanded MZO powers last year

MZOs allow Clark to bypass the usual planning process and make a final decision about how land can be used, typically at the request of a municipality. But even with an MZO, developments traditionally had to abide by rules set out in the provincial policy statement (PPS), a master plan for planning in Ontario.

Aside from guidelines meant to discourage sprawl, the PPS includes numerous protections for sensitive wetlands, woodlands and valleys with rivers and creeks running through them.

The proposed bill would allow Clark to cast the PPS aside when issuing an MZO. The government disregarded the PPS guidelines when it issued the MZO for Durham Live. But once the bill passes the Progressive Conservatives will be able to ignore the rules whenever they want, for whatever they want.

The legislation marks the second time the Progressive Conservatives have changed the rules in a way that makes it easier for Durham Live to proceed. The Ford government expanded MZO powers in December, when they took away conservation authorities’ ability to refuse permits for projects in cases where MZOs have been issued. (The government also enhanced MZO powers last summer, giving Clark more control over what the orders can allow.)

That mechanism was used to force the conservation authority, which spoke out against Duham Live, to approve the project Thursday.

On Thursday, Ontario Green Party Leader Mike Schreiner called the bill “undemocratic,” and said the government was “declaring open season on any environmental protection.

Friday morning, he said in a statement that he was "disgusted" by the government's decision to order the TRCA to issue a permit.

"Ford’s blatant disregard for wetlands and ignoring the pleas of local residents endangers all of us," he said.

Environmental Defence executive director Tim Gray said his organization will continue to forge ahead with the suit.

Clark’s office didn’t answer Thursday when asked whether Durham Live factored into the writing of the bill, redirecting questions about the legislation to the Ministry of Municipal Affairs and Housing.

Ministry spokesperson Conrad Spezowka said in an email Thursday that the legislation was aimed at clearing a path to development for urgent projects that have already received MZOs.

“We need to ensure that priority projects that will play a key role in our province’s economic recovery do not face unnecessary delays and barriers after an MZO has been made,” Spezowka said.

“We are committed to working with our municipal partners to accelerate critical projects Ontarians rely on — like transit-oriented communities, affordable housing, and long-term care.”

Protecting the environment is not an “unnecessary barrier,” Ontario Liberal environment critic Lucille Collard said in a statement.

“Unchecked power to override environmental protections is not to be taken lightly,” she said.

MZOs used to override environmental concerns, Observer investigation showed

Critics also accused the Ford government of trying to bury the change proposed Thursday. It was tacked on at the end of Bill 257⁠ — called the “Supporting Broadband and Infrastructure Expansion Act⁠,” which a government announcement said was aimed at improving internet access.

“Yet again we see a government that is burying important changes in omnibus legislation and hoping no one will notice,” Ontario NDP environment critic Sandy Shaw said.

“It’s development at all costs.”

The bill comes as Clark falls under increasing fire, both from the Durham Live lawsuit and opposition critics, over his use of MZOs.

Though previous governments used the orders a handful of times per year, the Progressive Conservatives have issued a flurry of MZOs since they were elected in 2018, approving 37 and rezoning land with a similar mechanism in a 38th case.

An investigation by Canada’s National Observer released last month found that Clark has used MZOs to overrule environmental concerns 14 times. In nine of those cases, the orders benefited developers who had donated significant sums to the Progressive Conservatives.

The proposed change would not apply to the protected Greenbelt in southern Ontario, where Clark has said he won’t issue MZOs.