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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 in environmental law has just been taken: the Superior Court ruled that private property was not an absolute right with respect to wetland conservation. It will therefore no longer be a question of prosecuting the municipalities concerning the regulations that protect these environments essential to our environment, and especially not by using the excuse of private property!

Vulnerable wetlands

The situation of wetlands in Canada is critical, as already 70% of them in inhabited areas have been destroyed. The situation is even more serious near the Montreal Metropolitan Community where barely 15% environments that existed in the natural state are still intact, which constitutes an ecological disaster for the survival of the species. Let us remember that the chorus frog is still at risk 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, at Île Bizard. Photo credit: Gilles Doaire

These environments are essential because of the biological diversity that depends on them, but also because of the many 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 the rivers.

Go through justice to destroy

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

In fact, municipal regulations are much more effective than the provincial version, i.e. the Regulation for the Compensation and Restoration of Wetlands and Water. This regulation recommends, as compensation for the damage to a wetland, to pay a certain sum or to promise the restoration of another environment. However, compensation is in no way a sufficient means of curbing destruction when the financial means of the promoters are sufficiently large, and especially if this Regulation becomes more flexible. The Foundation has moreover denounced intentions to relax the Regulations in the past. The new version of it, presented in July 2021, is, according to the Foundation, 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 motive used by developers to try to circumvent municipal regulations that protect natural areas. According to them, municipalities violate private property rights by restricting many uses of land for conservation purposes. Often they get their way by claiming a compensatory sum in exchange for the income potential "lost" by zoning regulations. This sum is often very high; this is one of the reasons why the City of Montreal has never been able to protect the Meadowbrook stream, which has led to his sad situation.

This practice may well end with this latest verdict, and the Foundation welcomes this new rule of law!

The importance of environmental law

This is not the first legal case that the Foundation is following closely. We should expect more attempts to justify the destruction of natural habitats in the future. This last decision is still very encouraging!

In order to stay informed about legal issues in the environment, we also invite you to browse the page obiterre of the Center Québécois du Droit en Environnement, which offers an overview of all the legal aspects to remember, particularly with regard to wetlands and water.

Let's stay vigilant and informed!


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