The biodiversity ? Not in my yard!

To what extent can municipalities interfere with what is happening on your land in order to protect nature?

This is the difficult question we face following recent legal decisions. Decisions that oppose the right to enjoy one’s private property to the collective duty to protect nature, and among which the cities of Quebec say they have difficulty seeing clearly.

This vagueness, it is now up to Quebec to dissipate it. The provincial government needs to clarify its laws so that municipalities know what they can and cannot do in the name of protecting the environment and biodiversity.

Otherwise, the fear of lawsuits risks paralyzing cities and preventing them from fulfilling their environmental obligations. It is our quality of life and the harmonious development of our territory that are at stake.

What triggers these questions is a field dispute that occurred in Mascouche. A chicanery that ended up taking on provincial proportions.

The story begins in 1976 when Ginette Dupras buys from her aunt, for one dollar, a wooded lot the size of 14 soccer fields. At the time, regulations allowed residential use on 70% of the woodlot. The rest is zoned “conservation”.

M^me Dupras does not subdivide the land. In 2006, the City of Mascouche adopted a zoning change that put all the sites in conservation mode. The uses of the land are greatly limited. M^me Dupras can operate a sugar shack there or engage in recreational activities, for example, but not erect buildings there.

The citizen claims to be the victim of a “disguised expropriation” and demands compensation. The Superior Court, then the Court of Appeal essentially agreed with him.

The case then attracts the attention of a myriad of organizations. The David Suzuki Foundation, Nature Quebec, the Union of Quebec Municipalities and the Metropolitan Community of Montreal, in particular, are asking the Supreme Court to look into the case.

Last week, the Supreme Court refused to hear the case. We don’t know why, but note that she is currently looking into a similar case that occurred in Nova Scotia.

What about the dispute?

Instinctively, one may have the impression that a citizen should be able to do whatever he wants at home. It’s a shortcut. Even in town, you cannot cut down a tree or enlarge your property without the agreement of your municipality. And that’s normal.

In the past, the courts have validated the right of municipalities to protect wetlands or riparian strips located on private land. This explains the surprise of the municipal world at Mascouche’s decision. The cities have obligations to protect the territory, but now fear that it will be necessary to release fortunes in compensation if they want to fulfill them.

Some jurists urge caution. Each case is unique, they say, and it is not because the courts agreed with Ginette Dupras that they will grant compensation to each citizen who contests a zoning change.

It’s true.

But not all municipalities have teams of lawyers capable of analyzing the legal intricacies. There is a real risk that the Mascouche affair will have the effect of a cold shower and that the fear of lawsuits will make cities much more reluctant to act on behalf of the environment.

Fortunately, this did not escape the Ministry of Municipal Affairs and Housing. The latter promises to analyze the Mascouche affair, particularly in the context of the work surrounding the implementation of the National Policy on Architecture and Land Use Planning, adopted in June.

So much the better. Cities need to know how far they can go to meet their environmental obligations. That doesn’t mean giving them all the power. It means chasing away the uncertainty that leads to inaction. Because if we want to preserve the rare green spaces that still exist in southern Quebec, we need action.