On June 17, 2016, the federal cabinet approved an emergency order (Order) for protection of the habitat of the Western Chorus Frog (Great Lakes/St. Lawrence-Canadian Shield population) in La Prairie, Quebec. This is the second emergency order issued under the Species at Risk Act (SARA), and the first to impact privately owned land. The Order was published in the Canada Gazette on June 29 and will come into force on July 17, 2016. From the information published with the Order, it is apparent the Order will have significant effects on both public and private interests.
The Order aims to protect the La Prairie metapopulation of the frog by protecting 90 per cent of its suitable habitat from destruction. It applies to approximately two square kilometres in a suburban area of Montréal currently undergoing significant growth. To meet this objective, a number of activities are prohibited, including:
- Impacts on soil and vegetation
- Surface water alteration
- Infrastructure installation or maintenance
- Operation of any motorized vehicle (including ATVs and snowmobiles) other than on a road or paved surface
- Installation of structures that create a barrier to frog migration
- Deposit of materials or substances, and the use of pest control products or fertilizers
Exceptions are made for activities carried out under provincial authorization for the purpose of the protection of health and safety. The Order includes a provision making non-compliance with it an offence under SARA.
The Order is part of a process that started several years ago when the federal Minister of Environment declined to recommend that cabinet make an emergency order to protect the habitat. This led to a successful court challenge and an order from the Federal Court that required the Minister to reconsider whether the species was facing an imminent threat to its recovery. The reconsideration led to an imminent threat assessment and recommendation for the Order by the Minister appointed under the Liberal government that was elected in October of 2015.
The making of an emergency order is part and parcel of what appears to be a significant shift in the federal government’s policy regarding the implementation of SARA across the country over the past six months. In addition to this order, there has been substantially more activity on the development of recovery strategies and action plans, and the making of protection orders for the habitat of federal species (i.e. aquatic species and migratory birds).
While some of the land impacted by the Order has already been set aside for conservation purposes, much of the private portion of the land is currently planned as part of an extensive housing development. According to the regulatory impact analysis provided to the cabinet, Environment and Climate Change Canada reviewed non-regulatory measures taken by the municipality and the developers to mitigate impacts on the species, and found the effectiveness of the measures to be unclear.
The loss of overall revenue by landowners and developers was identified as a significant concern in the public consultation that was done on the proposed Order. The costs/benefit analysis in the regulatory impact analysis acknowledges that as a result of the Order, two phases of the planned housing development, approximately 171 houses, will not be built. The identified “costs to society” resulting from the Order include only the loss value of the land yet to be developed (C$7.8-million), and the lost service value of infrastructure that had already been installed (C$1.6-million). Other losses, including the lost profits of the developers and builders, and revenue to the municipality, are estimated to be between C$29-million and C$41-million, but were not considered as part of the costs/benefit analysis as they are classified by the government as “distributional impacts”, that is, costs that would be delayed or redistributed to other businesses or municipalities. Employment losses were considered to be transitional.
Provincial and municipal officials and developers expressed concern that the Order would create significant uncertainty over the potential for residential development and consequent loss of investment, and unpredictability in the authorization process for other upcoming infrastructure projects. The adoption of the Order has also stirred up, once again, the debate over jurisdiction over environmental matters, as the Quebec Minister of Sustainable Development, Environment and the Fight Against Climate Change was publicly critical of the federal government for what he considered unilateral action contrary to cooperative federalism. The provincial government and municipal actors also expressed concerns that the Order would set a precedent for emergency orders under SARA in other areas of Quebec.
What remains to be seen is whether impacted private entities will either challenge the Order, or seek recompense for losses under SARA’s compensation provisions. It also remains to be seen whether the Province of Quebec will question either the substance of the Order, or the federal government’s constitutional authority to make it.