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Federal Environment Minister’s Emergency Decree: Me Alain Chevrier shines in developer’s compensation case

5 January 2024

Dunton Rainville celebrates its successes by saluting Alain Chevrier, a leading expert in environmental and municipal law, for his brilliant handling of a compensation case arising from an emergency decree issued by the federal Minister of the Environment.

In 2010, Me Chevrier’s client, Groupe Maison Candiac (GMC), obtained a certificate of authorization from the QuĂ©bec Ministry of the Environment, allowing it to launch a major housing project in the municipalities of Candiac, St-Philippe and La Prairie. Given the presence of Western Chorus Frogs (WCGFs) on a portion of GMC’s property, the aforementioned ministry obliged GMC to set up a conservation area and artificial ponds to protect the species.

After setting up the conservation area and artificial ponds, GMC was able to complete its project in Candiac. In 2016, when it had just begun the 2nd phase of its project in St-Philippe and La Prairie, the Government of Canada adopted an emergency decree to protect the RFGO in the region. The practical effect of this decree was to prevent GMC from developing some 122 lots for residential use, representing losses of over $20 million.

The Species at Risk Act gives the federal Minister of the Environment the power to grant compensation to persons affected by an emergency order for losses related to the extraordinary consequences arising from the adoption of such an order. GMC therefore filed a claim with the Minister. However, the latter refused on the grounds that these losses of some $20 million did not constitute an “extraordinary consequence” arising from the adoption of the emergency decree.

On December 19, the Federal Court overturned this decision on the grounds that it was unreasonable.

According to the Court, what constitutes an extraordinary consequence depends on the context, but the Minister’s conclusion must be consistent with the purposes of the Act, which are to encourage Canadians to participate in conservation efforts and, in some cases, to share the resulting costs. In this case, the Minister has not justified how his decision was compatible with these objectives. Her decision does not explain how she will encourage Canadians to participate in this conservation effort in the future. In the court’s view, the Minister should consider whether this might actually lead Canadians to destroy the species’ habitat, for fear of incurring losses that will not be compensated, as was the case in the United States. Since the cost must be shared, compensation need not cover all losses, but cost-sharing should nevertheless encourage Canadians in their conservation efforts.

The file was therefore returned to the Minister for reconsideration.