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Destruction of wetlands: end of the excuse of private property

Milieu humide

There was a time when we could destroy Quebec's wetlands with complete impunity. Then, a time when real estate developers tried at all costs to circumvent the regulations put in place to justify projects harmful to natural environments.

Well, that time will soon be over because a giant step forward in environmental law has just been taken: the Superior Court has ruled that Private property did not constitute an absolute right with regard to the conservation of wetlands. There will therefore no longer be a question of suing municipalities regarding regulations that protect these areas essential to our environment, and especially not using the excuse of private property!

Vulnerable wetlands

The situation of wetlands in Canada is critical, with already 70% of them in inhabited areas having been destroyed. The situation is even more serious near the Metropolitan Community of Montreal where barely 15% environments that existed in their natural state are still intact, which constitutes an ecological catastrophe for the survival of species. Let us remember that the chorus frog is still in danger in Quebec!

Un des rares milieux humides restants à proximité de Montréal, à l'Île Bizard. Crédit photo: Gilles Douaire
One of the few remaining wetlands near Montreal, on Île Bizard. Photo credit: Gilles Doaire

These environments are essential because of the biological diversity that depends on them, but also the multiple benefits they provide, whether through water filtration or flow regulation. True buffer zones of nature, they are essential for maintaining the balance of the ecosystem, including that of rivers.

Go through justice to destroy

Municipalities that wish to do their part to improve the fate of wetlands have significant power in the conservation of natural spaces, thanks to their zoning regulations. It is essential that they are able to enforce them.

In fact, municipal regulations are much more effective than the provincial version, namely the Regulations for Compensation and Restoration of Wet and Water Environments. This regulation recommends, as compensation for the damage to a wetland environment, paying a certain amount or promising the restoration of another environment. However, compensation is in no way a sufficient means to slow down destruction when the financial means of promoters are sufficiently significant, and especially if these Regulations become more flexible. The Foundation has also denounced intentions to relax the Regulation in the past. The new version of it, presented in July 2021, turns out, according to the Foundation, to be rather worrying given that the objective of “zero net loss” is still very far from being achieved. Consequently, municipal zoning is undoubtedly the most effective regulatory tool. This is why it is the most contested during real estate development projects.

The exprohdisguised prayer has long been a reason used by developers to try to circumvent municipal regulations that protect natural spaces. According to them, municipalities are infringing on private property rights by restricting many uses of land for conservation purposes. Often, they achieve their goals by demanding a compensatory sum in exchange for the income potential “lost” by zoning regulations. This amount is often very high; this is among other reasons why the City of Montreal has never been able to protect the Meadowbrook stream, which led to his sad situation.

This practice could well end with this latest verdict, and the Foundation is delighted with this new state of the law!

The importance of environmental law

This is not the first legal case that the Foundation has closely followed. We should expect other attempts to justify the destruction of natural environments in the future. This latest decision still remains very encouraging!

In order to stay informed on legal environmental issues, we also invite you to browse the page obiterre from the Center Québécois du Droit en Environnement, which offers a popularization of all the legal aspects to remember, particularly with regard to wetlands and bodies of water.

Let’s stay vigilant and informed!

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