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
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.
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
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
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
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.
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.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
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