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Equivalent wetland dedication is expropriation?

The Quebec Court of Appeal will soon decide an appeal on whether applicants to destroy wetlands can be required to dedicate offsetting lands to become protected areas. However, the trial decision has already been overruled by the National Assembly.In Atocas de l’érable inc. c. Québec (Procureur général) (Ministère du Développement durable, de l’Environnement et des Parcs), a Quebec Superior Court ruled that the Quebec Ministry of Sustainable Development, Environment and Parks could not require dedication or equivalent protection of private lands as a condition of permission under the Environment Quality Act to develop a cranberry plantation in a bog. Judge Dallaire ruled that this demand amounted to an illegal expropriation, contrary to the fundamental right to own private property under the Civil Code and the Quebec Charter of Human Rights and Freedoms. In part, he objected to the regulatory calculations of the compensation ratio for replacement lands, because it is not 1 to 1, but varies depending on the ecological value of the two parcels.

Equivalent reinstatement of damaged wetlands has been a key feature of environmental policy for many years, because of the many important ecological functions that wetlands provide. The major weakness of the policy is that reinstated wetlands are rarely as effective or productive as natural wetlands. If reinstatement is not available, regulators may be even more reluctant to permit development in wetlands. Would that be an improvement?

The Quebec government overruled the decision with a special retroactive Act of the National Assembly, Bill 71An Act respecting compensation measures for the carrying out of projects affecting wetlands or bodies of water. This was Quebec’s third retroactive law in a year, all intended to overrule court or tribunal decisions in which it had been found at fault, according to the Ombudsman.

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