On April 24, 2012, the Minister of Sustainable Development,
Environment and Parks, Mr. Pierre Arcand, tabled Bill 71
– Act Respecting Compensation Measures for the
Carrying Out of Projects Affecting Wetlands or Bodies of Water
("Bill 71") before the National Assembly
of Québec. Bill 71 is in direct response to the March 12,
2012 Superior Court of Québec ruling in Les Atocas de
Général du Québec.1
In that case, one of Superior Court Justice Martin
Dallaire's findings was that the compensation measures that the
ministry of Sustainable Development, Environment and Parks
("MSDEP") could require as part of an
application for a certificate of authorization under Section 22 of
the Environment Quality Act
("EQA") were illegal due to insufficient
legal basis. His decision was appealed by the Attorney General of
Quebec on April 11, 2012, at the Québec Court of
In response to the Superior Court ruling, Section 2 of Bill 71
states that the MSDEP may now require compensation measures
designed, in particular, to restore, protect or enhance a wetland,
a body of water or a piece of land. Section 2 also provides that
these measures may be required of any applicant for a certificate
of authorization under Section 22 or an authorization under Section
In addition, Section 2 provides that compensation measures
imposed by the MSDEP must be the subject of a written undertaking
by the applicant, and are deemed to form part of the conditions of
the authorization (Section 32 EQA) or the certificate of
authorization (Section 22 EQA).
Because the MSDEP has in the past customarily required promoters
to implement compensation measures on projects affecting wetlands,
the government chose made Bill 71 retroactive. Section 3 therefore
provides that any compensation measure imposed in an authorization
or a certificate of authorization before March 12, 2012 is valid.
This provision also provides that no compensation measure gives
rise to an indemnity. The Bill's retroactivity extends to any
authorization issued under Chapter 1 of the EQA for a project
affecting a wetland or body of water.
Interestingly, the Bill contains no clause allowing for
derogation from Section 6 of the Charter of Human Rights and
Freedoms concerning fundamental property rights.
Finally, Section 4 of the Bill specifies that the MSDEP must
report to the government on the application of Section 2 two years
after Bill 71's date of assent.
When the Bill was tabled at the National Assembly of
Québec, there was mention of special consultations on the
matter, with the government stating that quick action was required
in this file. Accordingly, the Committee on Transportation and the
Environment announced that the special consultations and public
hearings will be held on May 3, 2012.
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