Canada: Quebec Presents Bill 65 To Protect 50% Of Northern Plan Territory

On April 17, 2012, the Quebec Minister of Sustainable Development, Environment and Parks, Mr. Pierre Arcand, presented Bill 65: An Act respecting natural heritage conservation and the sustainable development of the area covered by the Northern Plan (the Bill). The Bill seeks to create the legal framework required to implement the Government of Quebec's (the Government) undertaking to protect 50% of the Northern Plan territory by 2035.

In its Northern Plan, the Government announced that certain measures for the protection of the territory would be put in place. As part of these measures, the Government committed to devote half of the Northern Plan territory for non-industrial purposes and instead reserve these lands for purposes of environmental protection and safeguarding biodiversity. To do so, the Government stated that it would withdraw from industrial activity any Quebec public lands in the Northern Plan territory and adopt a framework statute to attain this objective. On February 5, 2012, the Government indicated that it would seek to create a network of protected areas over 20% of the Northern Plan territory by 2020. As of December 31, 2010, 9.4% of the Northern Plan territory was considered protected.

The Bill proposes to update the process for the recognition of protected areas and to create a legal framework for the establishment of:

• aquatic reserves (areas established to protect aquatic environment and any terrestrial areas and wetlands associated with them);
• biodiversity reserves (areas established to protect terrestrial environment and any aquatic areas and wetlands associated with them);
• ecological reserves (areas established to preserve, as integrally as possible, in their natural state, distinctive, outstanding or representative examples of biodiversity);
• marine reserves (areas established to protect salt water or brackish water environments); and
• man-made landscapes (areas established to protect the biodiversity of an inhabited terrestrial or aquatic area having biophysical features that warrant conservation as a result of human activities performed over time in harmony with nature and whose preservation depends on the continuation of those activities by the community).

In each case, the protected area is created with the objective of protecting representative examples of biodiversity.

As part of the measures proposed by the Bill, we note the following:

Register: The Bill proposes that a public register of protected areas be created and kept up to date. The register will contain information for each protected area, such as its surface area and location, the applicable conservation measures, their duration and the administrative or legal framework governing the area.

Conservation strategy: Once the Bill is adopted, a conservation strategy applicable to the Northern Plan territory will be adopted in order to attain the objective of protecting 50% of the territory by 2035. Public consultation must be conducted before the adoption of the strategy. The strategy must include the policy directions and principles that support the strategy; ecological planning mechanisms; the conservation objectives to be achieved; the means for implementing the strategy; and the mechanisms for the participation of First Nations communities and regional and local authorities. The strategy must be reviewed in 2020 and subsequently every 10 years.

The creation of reserves: The creation of aquatic, biodiversity, ecological and marine reserves is the conservation measure that is favoured so as to attain the objective of protecting the territory. These reserves are to be created on public land by the adoption of a regulation. The Bill allows for private lands on which a notice of reserve for public purposes has been established under the Expropriation Act to be included in a reserve.

Before publishing the draft regulation which seeks to protect a territory, the Minister must carry out consultations. During the publication period of the draft regulation, an interested party may request mediation to settle any dispute caused by the conservation measure that is being considered.

Environmental impact assessment: If the area that is to become part of a reserve is located in the James Bay and Northern Quebec Agreement territory, the environmental and social impact assessment and review procedure set out at Chapter II of the Environment Quality Act (EQA) must be followed. The draft regulation may not be enacted until 30 days following the date that any opinion, recommendation or decision resulting from the environmental impact assessment and review procedure is sent to the Minister.

Changing the boundaries of a reserve: The Government may change the boundaries or put an end to a reserve:

• to maintain or protect the biodiversity of the ecosystem;
• if it considers that another conservation measure would better preserve the area;
• if it is justified by the public interest; or
• if the reasons for creating a reserve no longer exist.

When the Government reduces the surface area of a reserve or decides to put an end to the conservation measure, it must compensate for the surface area by evaluating the ecological equivalence of those lands in terms of its surface area, its biodiversity and the ecological goods and services provided by the ecosystems that are concerned.

Prohibitions: The following activities are prohibited in an aquatic, biodiversity or marine reserve:

• mining and gas or petroleum development, including construction of facilities required for that purpose, except mining a surface mineral substance for the purpose of constructing or maintaining infrastructure located within the reserve;
• mining, gas or petroleum exploration, brine and underground reservoir exploration, prospecting, digging and boring;
• the construction and operation of facilities for the production or the commercial or industrial transmission of any form of energy;
• any forest development activity carried on under a timber supply guarantee or for marketing timber;
• fish stocking of a watercourse or body of water for aquaculture, commercial fishing or any other commercial purposes; and
• any other activity the government may prohibit by regulation.

Exceptions: For activities that are being carried out at the time that the reserve is created, the government can exceptionally allow the following activities to continue for a period of five years following the creation of the aquatic, biodiversity or marine reserve:

• mining, gas or petroleum exploration, brine or underground reservoir exploration, prospecting, digging and boring;
• the operation of a facility for energy transmission and any maintenance works ancillary to its operation; and
• a forest development activity.

Authorizations required: In an aquatic or biodiversity reserve, certain activities must be authorized by the Minister before they can be carried out, in particular:

• the mining of surface mineral substances for the purpose of constructing and maintaining infrastructure located within the reserve;
• the construction and operation of a water storage reservoir;
• any forest development activity that is not prohibited;
• the harvesting, for commercial or industrial purposes, of plants and their fruit, mushrooms and forest biomass;
• land occupancy for more than 90 consecutive days;
• any operation carried on in the bed or along the banks or the shores of a watercourse or body of water or in a wetland;
• any operation that may affect the natural drainage or the water regime;
• the construction, reconstruction or demolition of works or infrastructures, including land development, filling, excavation, burying and earthworks.

In a marine reserve, fish stocking of a watercourse or body of water for aquaculture, commercial fishing or other commercial purposes must be authorized by the Minister before it can be carried out.

Prohibition – ecological reserves: Because ecological reserves seek to preserve areas as integrally as possible in their natural state, it is prohibited for any person to have access or travel in or carry on an activity in an ecological reserve, unless authorized to do so.

Exceptions: The prohibitions and restrictions do not include:

• an activity carried out by a First Nations person exercising its hunting and fishing rights in the James Bay and New Québec territories;
• an activity carried out by the holder of an occupancy right granted by law;
• an activity (that does not involve development of water power, logging operations, mining, gas, petroleum or energy development) that is authorized by the Minister and carried out for the purpose of:
• acquiring knowledge or conducting scientific research in order to understand the activity's effect on the ecosystem and to develop measures to maintain the biodiversity and the ecological goods and services of the ecosystem;
• an activity necessary to ensure the proper management or the enhancement of the reserve;
• an activity required to prevent or repair damage caused by a natural disturbance or human interference; or
• an activity required to prevent harm to the health or safety of persons.

Power to suspend: The Government may suspend for up to five consecutive years the issuance of any permit, lease, authorization or other right which grants the right to carry out:

• the development of water power, wildlife harvesting, forest management, mining, or gas, petroleum or energy development;
• mining, gas, petroleum or energy exploration;
• an agricultural, commercial or industrial activity; or
• the construction of any infrastructure.

Proposed ecological reserve: The Government can, by regulation, create a proposed ecological reserve on public lands where certain activities will be prohibited and certain other activities must be authorized by the Minister. The activities that are prohibited and those that require authorization are similar to those in a reserve.

Man-made landscape: The Bill provides legal status to man-made landscape. The Minister may recognize an area as a man-made landscape for a term of at least 25 years. These landscapes are distinctive because of their patrimonial elements, i.e., built-up architecture or the organization of the territory. The objective sought is to protect certain inhabited territories with the intention of maintaining properties in harmony with ecological and cultural planning while allowing for the continuation and evolution of human activities.

A local municipality or a regional county municipality or a metropolitan community can present to the Minister by mutual agreement an application for recognition of an area as a man-made landscape. The approval by the ministry or any other government body that has authority over the affected public land must be obtained before submitting an application for recognition. The population that lives in the territory that is subject to the application for recognition, including a First Nations community that may be affected by the application, must have been consulted by the applicants before presenting the application.

The Minister recognizes the man-made landscape by publishing a notice in the Quebec Official Gazette which is accompanied by a protection plan which sets out the measures for conserving and enhancing the area.

Natural setting: The Minister may, by regulation, designate natural settings and the features associated with them. Any activity in a designated natural setting must be authorized by the Minister. An authorization is not required for an activity that is already subject to an authorization of the Minister pursuant to the EQA or any other law for which the Minister is responsible. The Minister can also exempt a person or any category of activity by regulation from the obligation of obtaining an authorization.

In summary, the Bill provides a general overview of the measures that the Government intends to put in place to attain the objective of protecting 50% of the Northern Plan territory by 2035. It is important to understand that the territory to be protected covers a surface area of 600,000 km2. Given that this is a vast territory on which industrial activities will be prohibited, it will have a significant impact on the development of the territory, specifically with respect to access routes and infrastructure necessary for the development of the territory. The implementation strategy that will be adopted subsequent to the adoption of the Bill will be a key element in determining how these issues will be accounted for on the ground.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.