Blog of law articles

(BY HUGO)

Wallot v. Québec (City of) (in French) is another example of what appears to be a trend in Québec environmental law: the municipal arena shapes up to be the major battle front on environmental matters. The quote introducing the judgement immediately sets the tone:

«“There is no such thing as absolute ownership. Ownership is being modified constantly by social exigences” (William de Montmollin Marler)»

The reach of this comment is revealed further as the Court acknowledges that our economic system essentially relies on private property (§158).

In this case, the plaintiffs ask the Superior Court to declare null the defendant municipality’s regulation protecting the riparian area around Lake St. Charles.

The lake is the source of 50% of the drinking water provided by the defendant municipality, serving close to 300 000 persons.

During the summers of 2006 and 2007, toxic cyanobacteria proliferate in the lake due to phosphate inputs from fertiliser run-offs, septic tank leakage, etc.

The municipal regulation is adopted in June 2008 to counter this phenomenon by imposing the naturalisation and reforestation of heavily modified riparian areas on a 10 to 15 meters strip of land around the lake.

The plaintiffs are the owners of riparian properties on the Lake St. Charles who contest the validity of the regulation to avoid being forced to return part of their properties to a more natural state.

Firstly, the Court examines whether the defendant municipality is competent to adopt the challenged regulation. The Court states that the extent of municipal powers to regulate environmental matters must be interpreted liberally rather than restrictively. The object of the regulation is to protect the lake’s water quality by preventing the continued degradation of the lake’s riparian area and relates to public interest. This falls within the ambit of the municipal powers to regulate the environment under the Municipal powers Act (see notably sections 2, 4, 6, 19 and 26.1). On this issue, the Court thus concludes that the defendant municipality had the power to adopt the regulation challenged by the plaintiffs.

Secondly, the Court examines whether the regulation is reasonable or abusive. On this issue, the plaintiffs argue that the regulation is equivalent to a «forced dispossession without expropriation and/or a disguised expropriation». This argument mainly relies on section 952 of the Civil Code of Québec, according to which the defendant municipality should have indemnified the plaintiffs. Again, Courts will only interfere with the exercise of municipal powers in exceptional situations. A municipal regulation severely limiting the use of property rights is within the discretionary competence of municipal authorities. In expropriation cases, the general rule is and has long been that any statute providing for expropriation without compensation must be expressed in the clearest and most unequivocal terms, which is not the case for the regulation challenged. However, the Court determines that the plaintiffs keep some usage of the naturalised strip of land subject to the regulation and that their rights are not totally negated. Therefore, the regulation is reasonable and valid.

Thirdly, the Court examines whether the regulation’s adoption process conformed to obligations of procedural equity applicable to acts from an administrative authority. Citizens to which a regulation applies must be informed and have an opportunity to submit their observations. The Court reviews the decision process leading to the adoption of the regulation and determines that it was equitable.

As a result, the plaintiffs’ motion is rejected and the regulation stands. The judgement is on appeal.

On more point is worth mentioning in this judgement. The Court often mentions the precautionary principle and refers to the landmark obiter from the Supreme Court on this subject in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Ville de) (see §31 of the Spraytech case and §91, 92 and 175 of the Wallot case). More particularly, in the section of the judgement determining the reasonable nature of the regulation, the Court states that the testimonies have established «a significant rational link» between the provisions of the regulation and the protection of a drinking water quality source. At this point, the Court reiterates that, according to the precautionary principle, no scientific evidence is required with respect to the evaluation of the means used in the regulation. In this context, the mention of the precautionary principle can only be considered an obiter in the Wallot case.