Canada: Ministry Of Sustainable Development, Environment And Parks Directive Set Aside

Last Updated: March 26 2012
Article by André Durocher and Pierre-Olivier Charlebois

On March 12, 2012, Superior Court of Québec Justice Martin Dallaire handed down an important environmental protection ruling regarding protection and compensation of Quebec's wetlands.1 The primary components of this ruling are as follows:

  • Directive No. 06-01 concerning compensation for loss of wetlands as a condition for issuance of a certificate of authorization is null and void.
  • Directive No. 06-01 alters or limits the fundamental right to free disposition of property provided in Section 6 of the Charter of Human Rights and Freedoms and, the compensation required by the directive is therefore illegal.
  • The Minister's use of discretionary power in matters of environmental protection should take economic viability into account, as well as the potential development that a project could bring to a region.

The Facts

Under Section 22, paragraph 2 of the Environmental Quality Act ("EQA"), les Atocas de l'Érable Inc. (the "Applicant") must obtain a certificate of authorization in order to proceed with an enlargement project that could affect wetland areas.

In November 2007, the Applicant filed an application with the Ministère du Développement durable, de l'Environnement et des Parcs (Quebec's Sustainable Development, Environment and Parks Ministry, the "MDDEP") to obtain the necessary certificate of authorization. Steps were taken and the MDDEP's representatives applied Directive No. 06-01, which is not a public directive. The Directive required the civil servants to see with the applicants whether the project could be avoided, whether alternatives to the project exist, or whether its environmental impact could be minimized and its negative effects compensated with wetlands of similar quality (avoid, minimize or compensate). In March 2011, with negotiations having come to a standstill, the Applicant filed a motion asking the court to issue the certificate of authorization.

A Premature Request

The MDDEP started by pointing out that filing the motion was premature, as the Minister had not yet made a decision on issuance of the certificate, the file being suspended since April 2011. The Court, however, did not share the MDDEP's opinion, and Dallaire J. found that the Minister had omitted or refused to make the decision, thus entitling the Applicant to exercise a recourse under Article 844 of the Code of Civil Procedure.

The Project is Subject to Article 22 EQA

The Applicant claimed that it did not actually have to comply with Section 22, paragraph 2 of the EQA, as it could benefit from various exemptions by qualifying its project differently. Dallaire J. disagreed and ruled that the Applicant's project was subject to Section 22, paragraph 2 of the EQA.

Directive No. 06-01 and The Minister's Use of Discretionary Power

Dallaire J. then reviewed the case law and reiterated that the EQA is a public policy statute that grants the Minister broad discretionary powers in the implementation of directives to guide its application. He pointed out however that the Minister's discretionary power is not absolute, and that Directive No. 06-01 went too far. Dallaire J. also found that the Minister, in suggesting in a Directive that obtaining a certificate of authorization be "avoided," had overstepped the limits of the powers conferred upon him by the EQA. He ruled that one cannot have a law that enables an individual to obtain a certificate of authorization while also allowing the Minister to encourage this same individual to refrain from obtaining the certificate required by that law.

Infringement of the Fundamental Right to Free Disposition of Property of Article 6 of the Charter of Human Rights and Freedoms

Dallaire J. also found that the Directive limited the right to free disposition of property, a fundamental right protected by both the Charter of Human Rights and Freedoms and the Civil Code of Québec. Infringement is inferred from the fact that the Directive required the Applicant to partially relinquish disposition of its property or to compensate the MDDEP by voluntarily exchanging certain properties.

That said, while the Court acknowledged that the MDDEP had abused its discretionary power and that the Directive was not valid, it refused to issue a certificate of authorization in the Minister's stead. The MDDEP was ordered to review the file as though Directive No. 06-01 did not exist and to issue a decision within four months of the ruling.

Conclusion

This decision means that the MDDEP will have to revisit the way in which it uses administrative tools to apply the EQA and its related regulations, and its scope extends far beyond mere protection of wetlands. The directives, guidelines and policies that the MDDEP uses will have to be incorporated into the EQA or its regulations in order to be enforceable.

The MDDEP has until April 12 to appeal the decision.

Footnotes

1 Atocas de l'Érable Inc. v. Québec (Procureur général) (Ministère du Développement durable, de l'Environnement et des Parcs), 2012 QCCS 912.

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