Quebec is currently waging a legal battle to have certificates of authorization issued before 2017, which allow the filling of wetlands, cancelled. The Ministry of the Environment maintains that these authorizations are no longer valid since the promoters have not yet carried out their work.
According to information sent to The Press by the Ministry of the Environment and the Fight against Climate Change, Wildlife and Parks (MELCCFP), at least 25 authorization certificates have been revoked over the past two years under new provisions of the Environment Quality Act (LQE) which were adopted in 2017.
Despite several requests for The Pressthe MELCCFP could not however indicate how many authorizations issued before 2017 have still not been carried out.
Among the applicants who have seen their authorization canceled, we find in particular the cities of Quebec and Mont-Saint-Hilaire, as well as the companies Monit and Demax construction which held certificates issued in 2009, 2012 and 2013.
At least three promoters contested the cancellation notices sent by the MELCCFP in 2021 and 2022. The case will be heard by the Quebec Court of Appeal on March 22, after the Superior Court ruled in favor of the promoters last September.
Two-year period
According to the Department, these authorizations issued to fill in wetlands have been canceled since the promoters have still not started the work within two years after the entry into force, in March 2018, of section 46.0.9. of the Environment Quality Act. This was added after the adoption of the Act respecting the conservation of wetlands and bodies of water in June 2017.
Article 46.0.9 indicates that “the holder of an authorization relating to a project in wetlands and bodies of water must begin the activity concerned within two years of the issue of this authorization or, where applicable, in any other period provided for in the authorization. Failing this, the authorization is automatically canceled and any financial contribution paid by the holder under the first paragraph of section 46.0.5 is reimbursed to him, without interest, at the expiry of this period”.
Three plaintiffs affected by these cancellations argued in Superior Court that this article does not apply to certificates of authorization issued before April 7, 2017.
The three companies had obtained authorizations in exchange for compensation, either the donation of land or the allocation of a conservation easement. Société en commandite Parc Centre-Est 440 had obtained a certificate of authorization in July 2008, while those of Nicanco Holdings inc. and Terrains St-Hyacinthe S. E. C. dated March 2014 and March 2017 respectively.
In the case of Nicanco Holdings, the developer is contesting the cancellation of its certificate of authorization allowing it to fill in wetlands in order to carry out a subdivision project in the Sandy Beach sector, in Hudson.
A group of citizens is contesting the project. They commissioned a report in 2021 from the firm TerraHumana Solutions: this contradicts the ecological assessment carried out on behalf of the promoter.
A first victory for the promoters
In a decision handed down on September 7, Superior Court Judge David R. Collier ruled in favor of the promoters by concluding that section 46.0.9 did not apply to authorizations submitted before April 17, 2017.
According to the magistrate, except for very specific cases, this article has no retroactive effect.
On November 3, the Attorney General of Quebec (AGQ) obtained authorization to bring the case before the Quebec Court of Appeal. Judge Robert Mainville pointed out, however, that “although the AGQ’s appeal presents challenges, particularly under sections 59, 63 and 65 of the LCCMHH [Loi concernant la conservation des milieux humides et hydriques]it does not appear to me to be contrary to the interests of justice to authorize it since the issues it raises are complex and deserve, in my opinion, that the Court consider them”.
The case will be heard before the Court of Appeal on March 22.
Tools available to Quebec
For his part, the director general of the Society for Nature and Parks in Quebec, Alain Branchaud, believes that Quebec could have revoked these certificates of authorization a long time ago. He points out that the old version of the Environment Quality Act made it possible to cancel an authorization “if the holder does not [était] not prevailed within one year of its issuance”.
PHOTO ALAIN ROBERGE, LA PRESSE ARCHIVES
Alain Branchaud, General Manager of the Society for Nature and Parks in Quebec
“Quebec could have avoided an emergency decree from the federal government to protect the chorus frog [une espèce menacée] if he had used the legal tools at his disposal,” he believes. According to Mr. Branchaud, the Ministry of the Environment would thus have been able to revoke certificates of authorization to fill in wetlands in La Prairie, in an area where there was a large population of this species.
The new provisions are however more restrictive, since it is expected that an authorization is canceled de facto if the project is not started within two years, he acknowledges.
“We can only encourage Quebec to use all the tools at its disposal to protect biodiversity,” he summarizes.