Why CN Rail’s plans for a massive new shipping yard trump Milton’s city planning strategy

By John Michael McGrath - Published on March 24, 2015
CN train
Trains will be running through Milton, if CN gets its way.

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North American rail giant CN is on one side. Milton’s municipal government and residents are on the other.

The cause of the controversy:  the nearly 97-year-old corporation’s recently released proposal to build a new facility in Milton’s south end, the culmination of a plan that has been in the works for more than a decade.

The 400-acre, $250-million intermodal centre will service the overflow from CN’s existing terminal in Brampton, which is nearing capacity as the GTA’s demand for retail goods increases with its population. (Intermodal centres are terminals where shipping containers are loaded off trains and onto trucks—or vice versa.)

“If you’ve got consumer products that are coming from Asia, for example, they’d be offloaded from a ship at the Port of Prince Rupert and put on a train to bring it to Ontario,” says Mark Hallman, Director of Communications for CN, who projects the new facility will bring an additional 1,000 new jobs to the area.

But local government, including Milton mayor Gordon Krantz, argues the proposal doesn’t fit with the town’s plan for expansion over the next 15 years.  They fear the CN plan will bring decreased property values and environmental and safety concerns and disrupt Milton’s employment strategy for the 1,000 acres of land where the terminal will be built. Also, more than 200 residents, who are worried about dust, noise, light pollution and traffic, have signed a petition in an attempt to stop the development.

CN first proposed its intermodal terminal in 2000 after it initially purchased the approximately 1,000 acres of land in Milton. But the railway quietly dropped the proposal by the middle of the decade in the face of public criticism. By 2008, it appeared to have abandoned the idea entirely.

During the same period, Halton Region, which subsumes Milton, was updating its official plan, which is designed to guide all of the region’s urban planning policy. According to Halton’s corporate counsel Mark Meneray, CN was asked about the intermodal terminal then and specifically said it was looking at other ideas for its land.

“They were actually focusing on a different use at that time,” said Meneray. “As part of their representations, they looked more at an industrial park use. It’s our position that we have official plans and zoning by-laws in place, and we have regulatory authority as well in the area.”

Hallman told TVO CN apprised Milton and Halton Region of its change in plans months ago.

The catch is that contrary to Milton’s position the proposed development isn’t constrained by municipal, regional or provincial planning by-laws. Like airports and broadcasters, rail companies are regulated solely by the federal government. Local planning powers, which flow from the province, don’t apply to CN provided the railway is using land for standard railway operations.

Municipal lawyer Quinto Annibale said Milton’s options are limited: the Constitution made railways the domain of the federal government in 1867, and municipalities across Ontario and the rest of the country have little say in what they do.

“In 1867, railroads were seen as a matter of national importance,” said Annibale. “They were infrastructure that was seen as essential to the Canadian economy and needed to be regulated by one government coast to coast.”

The division of powers at Confederation holds today. There are also other areas where federal jurisdiction leaves municipalities with less planning authority than they would have otherwise. For example, the federal role in regulating broadcasting means that towns around the GTA have limited power to control where cellular phone towers are built: if towers are under 15 metres, the CRTC doesn’t require phone companies to consult with municipalities at all.

Even provincially, there are limits to where municipalities can regulate new development. Electrical infrastructure, both power plants and transmission lines, have historically been exempted from city planning in Ontario. That’s part of the story behind the controversial decision not to build gas-fired power plants in Mississauga and Oakville (though those decisions don’t have to end in political scandal: Hydro One is currently planning a large transformer station in the Oak Ridges Moraine, land that’s otherwise protected from industrial development.)

There are some exceptions to CN’s exemption from municipal regulation. Specifically, CN-owned land has to be used for railway development; otherwise, local planning by-laws hold. For instance, in 2006, the Canadian Pacific Railway attempted to turn an underused rail corridor in Vancouver into an office and residential development. The Supreme Court ruled, however, that British Columbia law and Vancouver’s planning by-laws applied to CPR’s property.

Annibale said those kinds of exceptions likely don’t apply to the Milton intermodal terminal—it’s difficult to imagine a case where the facility isn’t considered a railway development. That leaves the Canadian Environmental Assessment Agency as the one avenue where government and residents can formally challenge the proposal. The CEAA confirmed that it's involved in preliminary discussions about the plan, but it’s too early to predict the outcome. 

Image credit: Lord of the Wings/flickr.com

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