The Quebec Ministry of the Environment has never used its discretion to force a review by the Bureau d’audiences publiques sur l’environnement (BAPE). The example of the large pigsties in Saint-Adelphe illustrates “complacency”, denounces a retired forensic lawyer who worked for 17 years in this ministry.
“We must denounce this complacency of the ministry. There are so few handles against the agricultural lobby; if we don’t use the ones we have, we’re in serious trouble,” says Mario Denis, who has notably worked on the laws governing the pork sector in his career.
When a project is too small to be subject to an environmental impact assessment procedure — which includes a review by the BAPE — the ministry can still decide to submit it if it considers that the environmental issues “are major and that the concerns of the public justify it”. “New technology” or “major climate change issues” may also justify such a process. The ministry must announce it no later than three months after the submission of the project.
However, since the entry into force of this provision (section 31.1.1) of the Environment Quality Act (EQA) in 2018, it has never been invoked, confirms to the To have to the Ministry of the Environment and the Fight against Climate Change (MELCC) of Quebec.
In particular, the provision was not invoked in the case of the large Saint-Adelphe piggeries. In 2020, a promoter presented three adjacent projects of 3999 pigs there, thus escaping the threshold of 4000 animals three times leading to a review of the BAPE – a method known as “splitting”.
However, notes Mr. Denis, the 2018 update of the EQA was precisely intended to counter splitting. “I am sensitive to the issue of project splitting,” said the Minister of the Environment at the time, David Heurtel, in 2016, during the detailed study of the bill. According to his explanations, article 31.1.1 “covers this situation”.
Although this is not a question of splitting, the department has also chosen in recent months not to use its discretionary power for the Ray-Mont Logistiques intermodal platform project, which is arousing strong opposition in the Montreal borough of Mercier–Hochelaga-Maisonneuve.
In practice, a major obstacle ensures that split projects slip through the cracks, despite the powers of the ministry: the “very, very limited” information available to the public, underlines Anne-Sophie Doré, a lawyer for the Center environmental law from Quebec.
The update of the EQA provided for the creation of a public register including, in particular, the application for authorization of a project and the supporting documents. Four years later, this detailed public registry still does not exist. Only a very brief register, which contains a few words per project, is online.
If the public only has access to this extremely succinct information during the three months following the filing of an application for authorization, it does not have the opportunity to express “concerns”, deplores Jean Baril, professor retired from environmental law at UQAM and specialist in access to environmental information.
Consequence: the Minister cannot claim that the environmental impacts are major and that the concerns of the public require an in-depth examination. Legally, he cannot use his own power to force the holding of a review by the BAPE.
“There are no details in the current register! Very often, the public learns the information — as was the case in Saint-Adelphe — after the project has obtained ministerial authorization. So the possibility [que le ministre applique son pouvoir discrétionnaire en moins de trois mois]I don’t see the day when it will come true,” laments Mr. Baril.
In an email to To have to, the MELCC explains that the deployment of the “online service” provided for by the law “is carried out in phases”. “Subsequent releases are being worked on to improve and add new features, such as interactive online quizzes,” reads the response, which does not state any specific timeline.
The MELCC adds that the “stability” and “security” of the system must be ensured as a priority. The system will also have to deal with the protection of the “industrial or commercial secrets” of companies presenting projects, such as the volumes of water pumped for bottling, for example.
Forcing the hand of municipalities
According to retired law clerk Mario Denis, the exhaustion of the three-month deadline in no way excuses the Ministry’s non-intervention in the Saint-Adelphe file.
“I think the minister has a responsibility,” he says. The officials who received the promoter’s file, which they studied in isolation, how is it that they did not ask themselves the question: “why, if the population is faced with three piggery projects totaling almost 12 000 pigs, there is no reaction?” »
The retired forensic lawyer calls on the government to oblige the municipalities to publish on their website a short description of the projects proposed on their territory, as soon as the applications are submitted.
At the end of January, Patates Dolbec and Avantis-Olymel, the instigators of the project for three piggeries in Saint-Adelphe, decided to postpone their request for a building permit, saying they wanted to “obtain a higher level of social acceptance” before going forward.