Canada: Bill 102 And Its Impact On The Watercourses Act

Last Updated: June 16 2017
Article by Mylany David and Pierre-Luc Desgagné

Over the last years, the Québec government has undertaken an extensive reform of the Environment Quality Act (hereafter the "EQA"), first in June 2015, by tabling the Green Paper to modernize the environmental authorization scheme under the EQA, followed by Bill 102 in June 2016. Entitled "An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund", Bill 102 was almost unanimously1 adopted by the National Assembly on March 23, 2017.

With over four hundred sections to analyze, it is the largest reform of the EQA since it was adopted in 1972.

Bill 102's objective is to equip Quebec with a clearer, more predictable and more effective scheme, while maintaining the strictest requirements with respect to environmental protection, and amends in particular the Watercourses Act2 (hereafter the "WA"), the environmental authorization scheme, access to information and Green Fund governance.

Concession of land and public rights by the legislature

Under the former scheme, a business that wanted to use hydraulic power (for the purposes of hydroelectric production) had to lease the hydraulic power vested in the domain of the Quebec State and thus obtain a concession of the land or the public rights, in accordance with sections 3 and 63 WA. The Quebec government then had to adopt a decree authorizing the minister responsible3 to lease the land and natural hydraulic power vested in the domain of the State, and permitting the catchment of water.

Bill 102 alleviates the process for leasing hydraulic power and the concession of lands or public rights by authorizing the minister responsible to grant or issue a public right in this regard directly, without the need for a government decree.

Elimination of the double authorization scheme

Bill 102 amends the WA to remove the obvious duplication and double government authorization scheme. Note that under sections 33 and 34 of the WA, the work operator had to obtain government approval of the plans and specifications before undertaking any construction, execution or maintenance. Such an obligation also existed under the Dam Safety Act (hereafter the "DSA"). 

Bill 102 finally eliminates the double authorization scheme created by the simultaneous application of the WA and the DSA. It restores a more logical situation with a simpler single authorization system for the interested parties. 

Need for legal advice

Bill 102 completely amends Division X (ten) of the WA on "Emergency Recourses". Now called "Orders", this division includes the new section 83.1 WA which, in the first paragraph, authorizes the Minister of Sustainable Development, Environment and the Fight against Climate Change to:

"order an operator of any work to provide the Minister with legal advice as to the extent of the rights encumbering the land on which the work is located and the land that is or could be flooded as a result of the work". [emphasis added]

The legal advice referred to in section 83.1 WA must necessarily be drafted by legal counsel, based on a location certificate issued by a land surveyor. The notion of "could be flooded", a key element of this provision, is to be more precisely defined at a later date. Therefore, an operator of a work will not only have to prove that it holds the rights encumbering the land on which the work is located, but also on the land that is flooded or could be flooded as a result of the work.

Furthermore, the power to issue orders granted by the new Division X has been substantially amended. It now allows "any interested person" to ask the Superior Court to order the demolition of any work constructed or operated "unlawfully". For example, if a dam on public land has not been properly maintained, the municipality in which the dam is located could be "interested" in seeing it demolished. But the question that remains is that of the interest required to act. Can a group that is opposed in principle to a dam in a given area be granted the status of interested person?

Penal provisions

Division X.1 entitled "Penal Provisions" has been added to the WA. It includes fifteen new sections and, according to the Parliamentary Committee, the penal division was added so that it would be consistent with the provisions of the EQA.4

Conclusion

In short, the adoption of Bill 102 certainly introduces several interesting elements, including the removal of the double authorization scheme that resulted from applying both the WA and the DSA, as well as authorizing the minister responsible to grant or issue a public right.

Other elements, however, have to be more clearly defined and soon, in particular the scope of the expression "could be flooded" in section 83.1 WA and the notion of "interested" party.

The adoption of Bill 102 has produced numerous legislative changes, particularly to the WA. To avoid any unwelcome surprises, don't hesitate to contact one of our professionals to guide you during the process.

Footnotes

1. Vote: 96 "yeas", three "nays" and no abstentions.

2. R.S.Q. c. R-13.

3. The Minister of Sustainable Development, Environment and the Fight against Climate Change and/or the Minister of Energy and Natural Resources.

4. Québec, National Assembly, Journal des débats. Parliamentary Committee, Committee on Transportation and the Environment, 1st Session, 41st Legis., 23 February 2017, "Clause-by-clause consideration of Bill 102, An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund".

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.

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