Projects Affecting Wetlands: Coming Into Force Of Measures On Compensation

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June 2012 — On May 22, 2012, Bill 71 – An Act respecting compensation measures for the carrying out of projects affecting wetlands or bodies of water (the “Act”) was passed. The Act came into force on May 23, 2012, almost a month after it was first tabled at the National Assembly. It grants the ministre du Développement durable, de l’Environnement et des Parcs [Minister of Sustainable Development, Environment and Parks] (the “Minister”) authority to require from an applicant, pursuant to Sections 22 or 32 of the Environment Quality Act (“EQA”), measures to compensate for the effects of any project affecting wetlands or bodies of water.

It should be recalled that on March 12, 2012, the Superior Court of Québec rendered a judgment quashing Directive No. 06-01, which had been followed until that time by the Minister’s representatives to manage and require compensation measures with respect to the impacts resulting from projects on wetlands in the context of applications for a certificate of authorization under Section 22 of the EQA. This section provides that a certificate of authorization shall be obtained from the Minister prior to any work or activities in a watercourse, lake, pond, marsh, swamp or bog, but it does not provide for any duty to compensate for the impact on such areas. In its judgment, the Superior Court had considered inter alia that the requirement for compensation measures provided by Directive No. 06-01 represented a breach of property rights without any legal grounding, as it was not entrenched in legislation. On April 11, 2012, the Attorney General filed an appeal of this judgment.

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