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 l'Érable c. Procureur 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 Appeal.[2]
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 32 EQA.
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.
[1] Atocas de l'Érable inc. c. Québec (Procureur général) (Ministère du Développement durable, de l'Environnement et des Parcs), 2012 QCCS 912.
[2] File 200-09-007692-129 (PDF available in French only).
