The Quebec Court of Appeal will soon decide an appeal on whether
applicants to destroy wetlands can be required to dedicate
offsetting lands to become protected areas. However, the trial
decision has already been overruled by the National Assembly.In
Atocas de l'érable inc. c. Québec (Procureur
général) (Ministère du Développement
durable, de l'Environnement et des Parcs), a Quebec
Superior Court ruled that the Quebec Ministry of Sustainable
Development, Environment and Parks could not require dedication or
equivalent protection of private lands as a condition of permission
under the Environment Quality Act to develop a cranberry plantation
in a bog. Judge Dallaire ruled that this demand amounted to an
illegal expropriation, contrary to the fundamental right to own
private property under the Civil Code and the Quebec Charter of
Human Rights and Freedoms. In part, he objected to the regulatory
calculations of the compensation ratio for replacement lands,
because it is not 1 to 1, but varies depending on the ecological
value of the two parcels.
Equivalent reinstatement of damaged wetlands has been a key
feature of environmental policy for many years, because of the many
important ecological functions that wetlands provide. The major
weakness of the policy is that reinstated wetlands are rarely as
effective or productive as natural wetlands. If reinstatement is
not available, regulators may be even more reluctant to permit
development in wetlands. Would that be an improvement?
The Quebec government overruled the decision with a special
retroactive Act of the National Assembly,
Bill 71, An Act respecting compensation measures for the
carrying out of projects affecting wetlands or bodies of water.
This was Quebec's third retroactive law in a year, all intended
to overrule court or tribunal decisions in which it had been found
at fault, according to the
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