EnvirOptix

Moot Court on Twitter

West Coast Environmental Law has announced that it will be hosting the world`s first Twitter Moot on February 21, 2012. Law students from several universities will debate a simulated case dealing with First Nations land rights in the face of mining development. It's said to be the first time that Twitter will be used for a law moot.

Have a look at the announcement on WCEL's website.

Shoreline buffer zones - Quebec Court of Appeal affirms Wallot judgment

You'll recall that in April 2010 Quebec Superior Court rendered judgment in the Wallot case, deciding that a municipality's imposition of a shoreline buffer zone was legitimate; see my post at the time.

The Quebec Court of Appeal has now, by judgment April 20th, dismissed the appeal taken by the affected property owners.

Bill 89 - First sessions (May 4th-5th) of detailed Committee review

Quebec's Bill 89 will greatly ramp up offence and other sanction provisions under the Environment Quality Act.  Minister of the Environment Pierre Arcand yesterday introduced section-by-section committee review of Bill 89 by noting that the government will be proposing a number of amendments to the Bill during the committee sessions and which take into account comments received during the public hearing stage.  Some of these in short:

• the new adminstrative penalty regime will instead be designated by the term Administrative Monetary Penalties (AMP), in order better to distinguish them from other sanctions.
• balancing criteria for AMPs will be better defined.
• an application framework for AMPs will be published, as to which a draft is already before the committee.
• a non-compliance notice will precede any AMP.
• a delay would be provided to request the review of any AMP.
• directors and officers would be able to plead due diligence.
• power to revoke authorizations will be clarified.

Moving on to section-by-section review, the committee canvassed the following points, amongst others, during the May 4th and 5th sessions:

• orders relating to dangerous goods (7.1 EQA) - according to section 3 of the bill, mere notice of the order would have to be published rather than the complete order.  There was discussion of prescribing a minimum level of detail in the notice.
• lengthy discussion concerning an amendment to the bill (section 7) to modify the delay which would be given to a permit holder under section 70.15 EQA to present its observations in the event of intention on the part of the minister to modify or to revoke the permit.  The minister proposed an amendment to the bill which would provide for a delay of 30 days.  The opposition prefers a shorter delay.  Discussions on this point were suspended for the time being.
• same discussion regarding a similar amendment, this one in relation to section 95.4 EQA (preliminary non-conformity notice to a project proponent).
• extensive discussion on the subject of section 114 EQA (section 15 of the bill), namely whether the itemization of the three proposed powers (demolition; restoration; compensatory measures - in relation to non-compliant works and constructions) would establish an order of priority or, if not, would lead to a tendency to employ compensatory measures rather than the other powers and thus weaken the new powers generally.  An amendment to the bill was negotiated and adopted to the effect that the minister may order the specified measures, giving priority to those which are considered, following assessment, as being the most adequate for the protection of the environment.
• in the same way, the bill would be amended at its section 18 (115 EQA - ministerial powers in the event of a guilty finding), and to be confirmed and drafted during the next session, to make a cross-reference to the new powers set out in the new section 114; thus to the effect that the minister may, on the same conditions as set out in section 114, take the measures there provided.

The next session will be on Tuesday, May 10.  More to come ...

Bill 89 - detailed committee review begins

The Quebec National Assembly's Transportation and Environment Committee begins today its detailed (section-by-section) review of Bill 89 (amending the Environment Quality Act's enforcement provisions).  The bill would greatly increase fine levels and revise its penal regime generally, including the implementation of an administrative monetary penalty scheme.

Bruce Power judicial review still in preliminaries

Federal Court judicial review proceedings in relation to the Canadian Nuclear Safety Commission's decision in early February to grant a transport license for Bruce Power's decommissioned generators are still in the preliminary stages.  A motion is before the Court to join the two sets of proceedings, one of which deals with the transport licence as such, and the other with the related export license.

Enviroptix named among LexisNexis "Top 50" for 2011

I'm delighted to say that Enviroptix has been named by LexisNexis as one of its "Top 50" environmental law and climate change blogs.

Judgment - Municipal by-law inadequately circumscribed noise nuisance

Since the modernization, some years ago, of  municipal rule-making powers by Quebec's Municipal Powers Act , municipalities have turned increasingly to defining and regulating nuisances.  This is rarely an easy task, as illustrated by the February 17, 2011, judgment in Iredale v. Ville de Mont-Tremblant.

Litigation over noise from the Mont-Tremblant motorsports track (Circuit Mont-Tremblant) has been going on for quite some time, with some residents in the trendy and upscale ski centre village and surrounding area (similar to Whistler in B.C.) taking issue with the noise level from the nearby circuit.  In this particular case, the residents' group applied to Quebec Superior Court to quash a settlement agreement reached in 2006 between the circuit's owner and the town, as well as town by-laws made in consequence of the settlement agreement whereby the circuit was partially exempted from the town's noise by-laws.

The circuit has been in operation since 1964, with roughly a one-year period, in 2000-2001, during which it did not operate because of major renovations.  Residential development in the area began to take off in the early to mid-1990s, and the number of residences within 500 m of the track's perimeter gradually increased.  By about 2002, noise from the circuit had become an issue in the community and noise regulation by the town, as well as litigation, began at about that time.  In 2006, the town reached a settlement with the circuit by which the town basically agreed to implement or modify by-laws to allow use of the track without any noise limitations for a limited number of days during the season (April-September).

The residents argued various points, but their essential position was that the by-laws were unreasonable and permitted the unregulated continuance of a nuisance.

As a touchstone for assessment, the Court found that describing the situation as one consisting of intermittent noise was most adequate (following Le Petit Train du Nord).  The most appropriate approach in the Court's view one which appreciated the existence or not of a nuisance in the context of the difference between ambient noise and "noise emergence" (increase in ambient noise levels).  However, the question was not whether that method was better than the one chosen by the Town, but rather whether the Town's choice was reasonable in the same context.

The Court decided that the track's prior existence and operation was not of special relevance, but was but one aspect of the overall context to be considered, noting that recent cases such as St. Lawrence Cement and Auberge du Parc stand for the proposition that the context has to be considered in each case having regard to Article 976 of the Civil Code of Quebec, which obliges neighbours to accept the normal inconveniences of neighbourhood (and so by corollary not abnormal inconveniences).  In regulating, the Town had to take this into account.

Noting that the Town of Mont-Tremblant is no longer the placid area which it once was, the Court held that the Town by-laws at issue were nevertheless inoperative insofar as they allowed unrestricted operation of the circuit.  While there was consensus (presumably within the community) that the circuit had to remain and that its antecedence had to be taken into account, the Court held that it was nevertheless impossible to reconcile the absence of any noise restriction with the objectives reflected by article 20 of Quebec's Environment Quality Act (general prohibition against release, etc., of a contaminant, which includes noise).  The Court concluded that the only objective manner of mitigating the situation was to limit use of the Circuit to cars equipped with mufflers.

This is far from over.  The Town has appealed.

Antecedence remains a thorny issue and which is likely to be debated in appeal.  Despite apparently clear judicial statements to the effect that while antecedence is neither a sword nor a shield, but merely a factor to be considered, it is far from clear precisely how the Courts are taking antecedence into account.  The question can indeed be asked if the concept is not defunct.  We seem to have arrived at a point at which antecedence is worth nothing more than acceptance in principle that the undertaking source of the nuisance can continue as such, but under conditions ensuring that the nuisance will be eliminated.  That doesn't say much for antecedence as a factor at all.  Possibly this only serves to illustrate that we haven't yet seen the end of antecedence as an issue in these cases.

Bruce Power postpones shipment

Bruce Power announced yesterday that it will delay shipment plans for its decommissioned steam generators pending further discussion with various interests who are seeking additional information.

Meanwhile, the judicial review applications in Federal Court by the Canadian Environmental Law Association and Sierra Club of Canada seeking to reverse the CNSC shipment authorization are still in the early stages.

Bill 89 - Committee report tabled

The Quebec National Assembly's Transportation and Environment Committee has today tabled its report on Bill 89 (amending the Environment Quality Act's enforcement provisions).  In principle, the final stages of adoption and sanction should be on the horizon.

Shale gas - Quebec EA report = de facto moratorium

Quebec's EA agency (BAPE) has recommended that shale gas development be  put on hold pending a "strategic environmental assessment".  In making the report public yesterday, Quebec's Minister of the Environment said that the BAPE's principal recommendation will be implemented and that a special EA committee will be created to undertake the strategic EA, an exercise which may take anywhere from one to two years.  In the interim, new drilling will only be authorized for the purposes of the strategic EA.

The BAPE's report is lengthy; some 250 pages plus schedules.  Since the main findings are being well covered in the general press, it may be interesting for readers if I take a look, in several posts over the next couple of weeks or so, at some of the details in the report and which may not receive much discussion in the general media.  Stay tuned.