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June 2012 —On May 22, 2012, Bill 71
– An Act respecting compensation measures for the
carrying out of projects affecting wetlands or bodies of
water1 (the "Act") was passed. The Act came
into force on May 23, 2012, almost a month after it was first
tabled at the National Assembly. It grants the ministre du
Développement durable, de l'Environnement et des Parcs
[Minister of Sustainable Development, Environment and Parks] (the
"Minister") authority to require from an applicant,
pursuant to Sections 22 or 32 of the Environment Quality Act
("EQA"), measures to compensate for the effects of any
project affecting wetlands or bodies of water.
It should be recalled that on March 12, 2012, the Superior Court
of Québec rendered a judgment2 quashing Directive
No. 06-01, which had been followed until that time by the
Minister's representatives to manage and require compensation
measures with respect to the impacts resulting from projects on
wetlands in the context of applications for a certificate of
authorization under Section 22 of the EQA. This section provides
that a certificate of authorization shall be obtained from the
Minister prior to any work or activities in a watercourse, lake,
pond, marsh, swamp or bog, but it does not provide for any duty to
compensate for the impact on such areas. In its judgment, the
Superior Court had considered inter alia that the requirement for
compensation measures provided by Directive No. 06-01 represented a
breach of property rights without any legal grounding, as it was
not entrenched in legislation. On April 11, 2012, the Attorney
General filed an appeal of this judgment.
The Act represents a very brief response to the judgment of
March 12, 2012.
The Act defines the term "wetland" as a "pond,
marsh, swamp or bog" without however defining these terms. The
expression "body of water", on the other hand, is defined
as "a lake or a constant or intermittent
watercourse".
The Act henceforth authorizes the Minister to "require from
an applicant [for a certificate of authorization] compensation
measures designed, in particular, to restore, create, protect or
ecologically enhance a wetland, a body of water or a piece of land
near a wetland or a body of water". Such compensation measures
will be part of the conditions for authorization but shall not give
rise to an indemnity. The authority to require such measures is
retroactive to April 24, 2012.
However, the section providing for this new authority shall
cease to have effect on April 24, 2015, unless the section should
be repealed prior to that date by an act providing for rules on
preservation and sustainable management of wetlands and bodies of
water. Compensation measures required prior to the can - cellation
by the Superior Court of Directive No. 06-01 are expressly
validated by the Act: such measures shall not give rise to an
indemnity.
Consequently, despite the judgment of the Superior Court, the
Minister is henceforth authorized by law to require compensation
measures for the carrying out of projects affecting wetlands
– although the terms for applying such compensation
measures still remain undetermined in the legislation.
Footnote
1 S.Q. 2012, c-14.
2 Atocas de l'Érable inc. c. Québec
(Procureur général) (Ministère du
Développement durable, de l'Environnement et des Parcs),
2012 QCCS 912; last March, we published a nota bene on that
decision.
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