On again? Off again? The future of Hudson’s Sandy Beach residential development remains as murky as this summer’s skies following a June 7 Appeals Court ruling.
Quebec’s highest court confirmed a September 2022 lower court decision which found that the environment ministry didn’t have the power to cancel retroactively a developer’s right to backfill a wetland if the certificate of authorization (CA) had been issued prior to April 17, 2017.
Nicanco Holdings Inc.’s CA was issued in March 2014, giving it the right to backfill roughly 1.5 hectares of wetland in exchange for the transfer of 3.5 hectares to the area already signed over to the Town of Hudson.
The environment ministry annulled Nicanco’s CA in March 2020, based on a 2017 amendment to the Environmental Quality Act which allowed the ministry to cancel any CA if the developer failed to begin work within two years of the date it was issued.
Quebec’s argument in both hearings was that it had the authority to annul the CAs of Nicanco and two developers in similar circumstances because backfill operations hadn’t begun by March 2018, when the change took effect.
The three developers filed a common suit against the government last June on the basis that neither the amendment nor the act itself gave the environment ministry the power to apply a sunset clause retroactively because nowhere was it mentioned in the enabling legislation.
Appellate Court judges François Doyon, Simon Ruel and Benoît Moore upheld the earlier decision handed down late last fall by Superior Court judge David Collier. Both rulings found that the annulments decreed by the environment ministry did not respect the Environmental Quality Act, in part because it would force all parties to undo agreements already enacted, such as the transfer of greenspace to the municipalities concerned.
However, the appellate judges drew our attention to legislation already on the books which would allow the environment ministry to demand modifications to any CA based on incomplete or outdated information. The ruling cited Article 36 of Act M-11.6, “an Act respecting certain measures enabling the enforcement of environmental and dam safety legislation” adopted April 22/22. The crux of Article 36 is that the CAQ has already handed its bureaucracies the power to unilaterally modify or even cancel a CA, apparently at their own discretion:
36. The Government or the Minister may, for all or part of a project subject to an authorization under the Acts concerned, amend the authorization, refuse to amend or renew it, or suspend, revoke or cancel it in the following cases:
(1) if the authorization holder fails to comply with any of the authorization’s provisions or uses the authorization for purposes other than those specified in it;
(2) if the authorization holder fails to comply with a provision of the Act or the regulation under which the authorization was issued; or
(3) if the authorization holder fails to begin an activity within the time specified in the authorization or, if no time is specified, within two years after the authorization is issued.
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ANALYSIS
After reading the appeal judgment those familiar with the case were left with more questions than answers.
First, the appeal ruling rejected retroactivity. “Like it or not, the rule of law has to be fair. To have ruled otherwise would have confirmed a form of tyranny,” said one observer who spoke on the condition that they remain anonymous.
“I remain perplexed as to why the government wanted to appeal [the Superior Court ruling] in the first place. Best guess: the CAQ wanted to apear pro-environment, thereby protecting its Québec solidaire flank while while confident the courts would never allow retroactivity.”
It’s doubtful Quebec’s solicitor-general’s office will appeal the appeal ruling. “It does not play to their nationalist theme. The appeals court is in Quebec, not elsewhere.
How will it impact Hudson’s Sandy Beach project for more than 200 residential units in a mix of semi-detached townhouses and multi-unit condominiums?
La Presse reporter Éric-Pierre Champagne noted in last week’s story on the ruling that at least 25 projects across Quebec have been frozen over the last two years as a result of the environment ministry’s 2017 sunset clause regarding wetland backfilling. It’s not clear yet whether those projects are dead for good, or awaiting updated CAs.
As reported in late February, Nature Hudson, the Legacy Fund for the Environment and the Centre québécois du droit de l’environnement (CQDE) contacted Quebec’s environment minister Benoît Charette, demanding a revision of Nicanco’s CA. They claimed that the area of the wetlands to be backfilled were far greater than what was characterized in the 2014 CA. Their claim was based on an unauthorized study by TerraHumana Solutions, a study Hudson’s current council declined to refer to the ministry because it was done without the landowner’s knowledge or consent.
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