‘Poster child for destruction’: The fight to save the Duffins Creek wetland from developers

A billionaire and a business-friendly government have set their sights on a provincially significant wetland in Pickering. These advocates are trying to save it — and stop it from becoming a warehouse
By Marsha McLeod - Published on Feb 04, 2021
A protestor at a January rally against the planned development for the Duffins Creek wetland. (Devin Mathura)



PICKERING — Several months ago, Devin Mathura and Ally Zaheer learned that a large swath of wetland in their hometown of Pickering was set to be turned into a massive warehouse. Stuck in their respective bedrooms amid the COVID-19 pandemic, the university students started interviewing experts and local politicians about the proposed development.

“What is most at stake is the future of our green spaces,” says Zaheer. “I am extremely worried about the fact that they're just going to get into this cycle of paving over things, and it's going to be too late before they realize what's done."

The friends reached out to students at their former high school to share what they’d learned about the Duffins Creek wetland complex, which has long been designated provincially significant, indicating its special ecological value. They set up a Zoom session with other students and explained that the development had been approved through a Minister’s Zoning Order — a provincial edict that allows the Minister of Municipal Affairs and Housing to make decisions on land zoning while bypassing normal planning processes, such as the citizens’ rights to appeal. Then they coordinated a “phone zap.”

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a map of Duffins Creek
Data from the Ministry of Natural Resources and Forestry; mapping by Miles Blanco.

“Everyone muted themselves, and we started spamming Doug Ford’s office, [MPP] Peter Bethlenfalvy’s office, and the [Pickering] mayor’s office,” says Mathura, who is attending his first year of environment, resources, and sustainability studies at the University of Waterloo from his home in Pickering. “It’s really hard to see,” says Zaheer, who studies environmental engineering at the University of Guelph. “Pickering is setting itself up as the poster child for wetland destruction.”

Zaheer and Mathura see the fight for this 57-acre site, consisting largely of wetland, as part of a larger battle over public participation and the future of conservation in Ontario. They’re not alone. In a recent letter, 96 environmental organizations slammed the Progressive Conservative government’s use of MZOs to overrule protections for provincially significant wetlands and called for the Duffins Creek MZO to be revoked. And the matter is also headed for judicial review: two environmental organizations, Environmental Defence and the Federation of Ontario Naturalists, filed papers about a month after the MZO was issued. 

Since 2019, Minister of Municipal Affairs and Housing Steve Clark has issued more than 30 MZOs. In comparison, a total of 49 MZOs were issued between 1969 and 2000. Clark has said that MZOs are a tool that can cut through “red tape” to help communities struggling financially during COVID-19. Pickering’s city council has focused on the 2,000 to 3,000 jobs the warehouse is expected to bring, as well as the more than 10,000 anticipated from Durham Live, an entertainment complex being built on an adjacent property. Both sites are being developed by Triple Properties Inc., which is part of the business empire of Greek-Canadian billionaire Andreas Apostolopoulos.

a "road closed" sign in front of a building under construction
View from Kellino Street of construction work on Durham Live. (Marsha McLeod)

Until December, the Toronto and Region Conservation Authority could have refused to issue a permit for the warehouse, even after the MZO. It had intended to do so, but Schedule 6 changed that. Part of Bill 229, a provincial budget bill, Schedule 6 eliminated conservation authorities’ ability to block MZOs. Tim Gray, the executive director of Environmental Defence, says that Schedule 6 has elicited nearly unprecedented levels of outrage from Ontarians, inspiring about 50,000 letters to Ontario’s MPPs within a month. “As they use these MZOs to allow development in a whole bunch of other high-quality places that used to be protected, I expect the level of outrage to grow,” Gray says. 

The land

Some 10,000 years ago, a mass of gravel and sand deposited from melting glaciers formed into a giant wrinkle on the land: the Oak Ridges Moraine. From it, many rivers and smaller veins, such as Duffins Creek, now flow, passing through farmland and cities, by highways and subdivisions, and through the region’s remaining wetlands on their path to Lake Ontario. 

Those wetlands act almost like a Plinko board, slowing the passage of water as it travels downward, with their vegetation sucking water up like a straw, explains Rebecca Rooney, a wetland ecologist and associate professor at the University of Waterloo. Wetlands also create spaces for water to pool, so it’s less likely to do so in property owners’ basements, Rooney says. Remove more collection points, and water is “channelled more rapidly down toward the end, which is all the people who live on the shore of Lake Ontario,” Rooney explains.

The wetland up for development is located just across Highway 401 from two communities that the TRCA has noted have “a long history of flooding.” Andrea Kirkwood, a freshwater ecologist and associate professor at Ontario Tech University whose research includes study of the Duffins Creek wetland, says that if the warehouse is built, Pickering will likely need to build storm-water ponds — which are not as effective as wetland — to deal with the increased flood risks: “It’s a flood plain, so they have to deal with heavy rains or heavy snowmelt. Where’s that water going to go?”

brown grass dotted with bushes and trees
Looking west over Wetland No. 5 from Squires Beach Road. (Marsha McLeod)

In a November video about the MZO, the City of Pickering stated that the wetland in question is “functionally disconnected” from the rest of the “Lower Duffins Creek Valley,” a claim that Kirkwood calls “factually incorrect,” as the wetland complex is connected through groundwater. 

Around the same time, Dave Ryan, Pickering’s fourth-term mayor, noted in a statement that a “recent ecological study” found that the wetland provides “limited ecological functions for flora, fish and wildlife.” The Globe and Mail has reported that the study Ryan referred to was commissioned by Triple Properties. A spokesperson for the mayor’s office tells TVO.org via email that “as the MZO was a provincial process, the City does not have a copy of the ecological report … The Mayor’s Office spoke with the [report’s] ecologist directly.”

Mike Borie, a long-time Pickering resident, set about trying to get a copy of the study. After several inquiries, a city staffer told him to contact Triple Properties. He emailed the developer twice but says that no one has responded. “You better be able to provide endnotes and footnotes. You’re making a drastic statement here by saying that the wetlands are limited,” Borie says. A second resident, Brandon Underwood, also asked the developer for a copy but says that he did not hear back. (TVO.org reached out to Triple Properties for comment but had not heard back by publication time.) 

In a 2014 review of several Duffins Creek wetland sites, the Ministry of Natural Resources and Forestry shows “Wetland No. 5” — the potential warehouse site — as spotted with a variety of plants, including red-osier dogwood, rice cutgrass, hybrid cattail, tall goldenrod, and silver maples. In a 2007 assessment, the MNRF gave the entire wetland complex the highest possible score for its special features, including the habitat that it provides to migratory birds.

For several months, the Twitter feed of the Mississaugas of Scugog Island First Nation has featured information about the plants and animals of the Duffins Creek wetlands and their cultural significance. Red-osier dogwood, one post notes, has held many traditional uses, from mixing with tobacco for pipe ceremonies, to basket weaving and treating ailments.

The wetlands are of particular importance for MSIFN, as they were part of Mississauga territory until 1923, when the Canadian government stripped Mississauga Peoples of about 13 million acres of land through the Williams Treaties. In 2018, the federal government apologized for that and for the “insufficient compensation” it had provided.

a black a white photo of a woman wearing glasses
MSIFN Chief Kelly LaRocca has criticized the Ontario government
for failing to consult on the MZO. (Courtesy of Kelly LaRocca)

In a statement to TVO.org, Chief Kelly LaRocca, of MSIFN, says that the Ontario government failed to consult with her nation over the Duffins Creek MZO. Ontario is mandated to consult with Indigenous communities on decisions that may infringe on their rights or title. “Our Treaty rights guarantee us a spot at the decision-making table — a right which was repeatedly violated throughout this affair,” LaRocca says. “Instead, our rights were dismissed in favour of reckless wetland destruction.” 

When asked about consultation, a spokesperson for Clark replied that any such questions should be directed to the municipality. Ryan, whose office declined an interview with TVO.org, says in a statement that “looking forward,” he has reached out to Chief LaRocca to “open a dialogue on the issue.”

The order

Last May, Ira Kagan, a lawyer representing Triple Properties, patched into a virtual Pickering city council meeting to request that the municipality ask the province for an MZO. “It would allow the project to proceed much quicker on a planning framework that the city would support — with no need for a full public hearing,” Kagan said. “And, most importantly, no opportunity for appeal. That means no appeal by anybody.”

Without an MZO, working out zoning on the adjacent Durham Live property had taken a very long time, Kagan reminded the council, but a “major, world-leading user” wanted to start the warehouse project now. “Other municipalities in the area would love to have them, and so if we can’t deliver zoning quick enough here, they will walk,” he said. At the meeting, the council decided to request the MZO.

In his statement, Ryan did not address whether the city had consulted any independent environmental experts prior to requesting the MZO. “We knew the site was sensitive in May, but faced with the economic impact of COVID and the need to attract investment and jobs as an urban growth centre, we requested the MZO with the assurance that the wetlands would be properly compensated,” Ryan states. “There is a massive pent up demand for jobs in Pickering.”

The City of Pickering has also pointed to an agreement between the TRCA and the developer intended to compensate for the wetland’s destruction by building another at a 1:1 ratio elsewhere; Rooney, though, says that it takes about 30 or more years for human-built wetlands to attain the diversity of natural ones and that the original location will no longer have the flood-prevention benefits.

According to the Globe, thousands of dollars in donations have flowed from the Apostolopoulos family­­ to the PC party and its politicians since 2018, including $1,222 to the MPP for Pickering-Uxbridge, Peter Bethlenfalvy; nearly $1,000 to Clark; and $1,220 to Ford. Almost $5,000 went to Ryan’s 2018 municipal campaign. (Clark’s office told the Globe that the idea that the donations had any influence on the MZO was “nonsense.”)

Clark issued the Pickering MZO on October 30. Five weeks later, with Schedule 6, conservation authorities lost their power to refuse permits for developments authorized by MZOs — except within the Greenbelt — leaving them to negotiate compensation agreements with the parties. Steve Heuchert, the TRCA’s associate director of development planning and permits, tells TVO.org in an email that, prior to Bill 229 and the MZO, “TRCA staff would have recommended refusal of a permit” because of provincial legislation that prohibits development in Provincially Significant Wetlands, except under strict circumstances. 

Before the proliferation of MZOs under Ford, they tended to be issued seldomly and in response to emergencies, Gray told CBC News. For instance, in 2012, an MZO was issued in Elliot Lake after the roof of a mall collapsed, destroying one of the community’s two grocery stores. An MZO allowed for the store’s quick relocation, Sudbury.com reported. In an email, Clark’s spokesperson emphasized that all of the minister’s MZOs on “non-provincial lands” have been at the request of the respective local municipality. 

Steve Parish, the mayor of Ajax for more than two decades, until 2018, says that the development did not require an MZO: “It’s just a typical warehouse that could’ve gone anywhere and should have gone through the normal planning process.” He adds that there are thousands of acres of land in the west Durham region — with no wetland on them — that could have hosted a large warehouse. “Picking that particular property was all about an obscenely close relationship … between Pickering council and that developer,” Parish says. “They said, ‘We want to put this warehouse on this site, and [council] said, ‘Yeah, okay, we’ll request a Minister’s Zoning Order, and we’ll get it done,’ which was totally, totally improper — and totally unnecessary.”

The opposition 

The crux of Environmental Defence and the Federation of Ontario Naturalists’ case is that Clark failed to consider relevant regional- and provincial-planning acts before issuing the MZO, as those acts would restrict development on the site. “The stakes are very high here,” says Laura Bowman, a staff lawyer with Ecojustice representing the organizations. “If the court finds that the minister is constrained by the provisions of the Planning Act in decision-making on MZOs, then the minister is going to have to be a lot more transparent and careful about the kinds of MZOs that are issued — and so I would expect the frequency of MZOs to decrease accordingly.” (The case is expected to be heard in the fall.)
a sign in front of a marsh, with construction in the background
The Duffins Creek coastal marsh in Ajax, with Durham Live construction in the background. (Marsha McLeod)

Outside the courts, some residents are set to fight the development on the side of the road. Environmental Action Now Ajax-Pickering, which sprang up on Facebook to protest the warehouse, organized a protest near the wetland in January. “We’re trying to stop it,” says Borie, who helped set up the group. “We wanted to split ourselves into two groups of 10 because that was, at that time, the [COVID-19] rules, and we were very conscious of spacing. So we took each group of 10 and set it on each side of Bayly Street.” The group is planning another rally for March. 

For their part, Zaheer and Mathura are writing an open letter to Ford, Bethlenfalvy, Ryan, and Pickering’s city councillors urging them to consider environmental concerns and to consult on such decisions with youth — not just the “rich white men sitting on the government panels,” Zaheer says.

“There was public pushback, obviously — there was a lot of it — but our opinions and voices aren’t being heard,” Zaheer says. “We are taking all of the steps in the wrong direction – and for what's at stake, connecting it to what is going to be done in the future, sure, this wetland destruction for this distribution centre is one instance. But this is leading and paving the way for so much more to come.”

For an in-depth look at efforts to safeguard the Great Lakes, watch Episode 3 of the current season of TVO's Political Blind Date. And check out a panel discussion of the health and fate of the Great Lakes on The Agenda With Steve Paikin.

This is one in a series of stories about issues affecting eastern Ontario. It's brought to you with the assistance of Queen’s University.

Ontario Hubs are made possible by the Barry and Laurie Green Family Charitable Trust & Goldie Feldman.

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