Quebec

The main environmental statute in Quebec is the EQA. The EQA makes it an offence to deposit or allow the deposit of a contaminant into the environment over and above limits set by decree or by regulation or in a manner that negatively impacts on the environment or human health. Accidental releases must be reported to the Ministry of Sustainable Development, Environment and Parks (MSDEP) immediately. The EQA confers upon all persons the right to the protection of the environment to the extent set forth in the Act. A person residing in the immediate vicinity of a place where a violation may occur, the Attorney General, and the local municipality may apply to the Superior Court for an injunction to prevent or stop a violation from occurring or continuing.

2.3.1.1 Authorizations

Anyone wishing to undertake an activity that may result in the release of a contaminant into the environment must first obtain a certificate of authorization from the MSDEP. These certificates are transferable, with MSDEP approval. Air emissions control and wastewater treatment are normally covered by a certificate of authorization issued by the MSDEP under the EQA. However, if a facility is located on the island of Montréal, then as regards air emissions and wastewater discharges, the facility is subject to standards set forth in regulations of the Montréal Metropolitan Community. Under the EQA, facilities in certain industrial sectors are subject to the requirement to obtain a “depollution attestation”, a type of comprehensive environmental operating permit that must be renewed every five years. The first two sectors to have been made subject to this requirement are pulp and paper mills, and the mining and primary metals industry. Emissions standards in depollution attestations are tailored to the facility and its receptor environment. Holders of attestations pay fees for their emissions and must monitor effects of their emissions on the local environment.

Certain types of projects listed in a regulation to the EQA must undergo an environmental assessment before the Quebec government may issue a certificate of authorization. The environmental assessment process always includes a public notification step and may include public hearings before the Bureau des audiences publiques en environnement (BAPE – the office of public hearings on the environment). The recommendations of the BAPE must be taken into account by the Quebec government in making its decision to authorize the project and in setting permit conditions. The EQA contains a separate environmental and social impact assessment process for the James Bay and northern Quebec region.

2.3.1.2 Air Emissions

In 2011, the Quebec government issued the Clean Air Regulation under the EQA, replacing the 1979 Quality of the Atmosphere Regulation. This Regulation applies to all activities that result in emissions to outdoor air, subject to exceptions listed in the Regulation. Exceptions include activities subject to sector-specific regulations, such as pulp and paper mills, motor vehicles, and pits and quarries. Air emissions standards do not apply during facility start-up or shutdown. For facilities that were already in operation on June 29, 2011, Clean Air Regulation provisions take effect gradually over a five-year period. The Regulation now requires that authorization of new facilities be subject to an assessment of impacts on air quality, standards for which are set out in the Regulation.

2.3.1.3 Contaminated Sites

The EQA contains a framework for managing contaminated sites. The Act gives MSDEP the power to order spill clean-up, site assessment and site remediation when MSDEP is notified of a spill or otherwise becomes aware that a site poses a hazard to human health or the environment. Under the EQA, the MSDEP can recover clean-up costs from directors and officers of a corporation who authorized, encouraged, ordered, advised or tolerated non-compliance with such an order. Defences available to innocent occupants of contaminated land facing an order from the MSDEP to assess or remediate the land are: 1) they honestly did not know about the contamination; 2) they knew about the contamination but they complied with the law and acted reasonably and diligently under the circumstances; and 3) the site was contaminated by a neighbouring property.

Under a regulation to the EQA, operators of sites on which listed, potentially polluting activities have taken place must hire a government-certified expert to carry out a site assessment when they cease to carry on the activity. The same obligation applies to anyone wishing to change the use of a property on which an activity listed by regulation has been carried on at any time in the past. Those carrying on subject activities must notify their neighbours if they become aware of a risk that contaminants in soil or groundwater are migrating offsite. Results of site assessments carried out under these provisions of the EQA must be forwarded to MSDEP and a remedial plan may be required if concentrations of contaminants in the soil or groundwater exceed generic criteria. Approval of any plan that involves leaving contaminants onsite in excess of regulatory criteria, based on a risk management approach, requires publishing a notice of contamination on the land registry. For a change of use, it also requires holding a public information session regarding the plan. A notice of decontamination can be registered against title once a government-certified expert establishes that concentrations of contaminants onsite no longer exceed regulatory criteria (but the earlier notice of contamination cannot be removed).

2.3.1.4 Waste Management

Quebec has a decentralized framework for siting landfills, with public involvement through regional county municipalities. Regulations have been adopted requiring manufacturers to take back used paint and paint containers, as well as used oil. Regulations are under development extending these obligations to used batteries, consumer electronics, and fluorescent light bulbs. Landfill operators and companies that market printed materials, containers and packaging pay dues that are remitted to municipalities to help finance the cost of curbside recycling programs. A permit is required to process hazardous waste for commercial ends, to incinerate it for energy production, and to store hazardous waste onsite above a certain amount. Permits are also required to transport hazardous waste and to operate hazardous waste disposal sites. The Transportation of Dangerous Substances Regulation adopted under the EQA governs the handling and transportation of dangerous substances, including hazardous waste, on Quebec’s roads. It tracks the provisions of the federal Transportation of Dangerous Goods Regulations.

2.3.1.5 Enforcement and Remedies

Violation of the EQA can result in fines of up to C$1-million and prison terms. Convictions can include an order to repair damage done and an additional fine equal to the amount of any financial gain resulting from the commission of the offence. In April 2010, MSDEP announced its intention to amend the EQA to increase fines and create a system of administrative penalties. The MSDEP lists recent convictions on its website, under Press Releases. MSDEP also maintains an online registry of applications for certificates of authorization and a list of recent authorizations issued under the EQA. Persons subject to an order from the MSDEP or whose certificate of authorization was cancelled or denied may appeal to the Quebec Administrative Tribunal. The Supreme Court of Canada has upheld the authority of the MSDEP to issue a clean-up order in a case where the MSDEP was a co-defendant, along with the oil company being ordered to do the cleanup, in civil litigation brought by owners of condominiums built on a former industrial site. Citizen groups have applied to courts to obtain the cancellation of certificates of authorization issued to industry. Litigants often invoke the provisions of the Civil Code of Québec in environmental disputes. There have been several class action suits, on subjects such as nuisances from municipal landfills, an aquaculture operation that raised phosphorus levels in a lake, dust from a cement company and noise from a snowmobile path.

In 2008, the Supreme Court of Canada held that a nuisance claim under the Civil Code of Québec can form the basis of an environmental class action suit and result in no-fault liability for an industrial facility that causes excessive inconvenience to its neighbours. In certain cases, the Quebec government has adopted decrees setting aside environmental provisions (sale of part of Mount Orford Park; absence of an environmental assessment of the Hertel-des Cantons hydro line) or putting a moratorium on class actions suits (noise from snowmobile paths).

2.3.2 Pesticides Act (PA)

The PA has two main objectives: 1) preventing and mitigating harmful effects to the environment and human health caused by pesticides; and 2) rationalizing and reducing the use of pesticides. These objectives are fulfilled by analyzing, assessing and controlling the effects of pesticide use, and by developing and promoting alternatives to pesticide use.

The PA requires pesticide users and vendors to obtain permits and certificates and provides for the establishment of a pesticide classification process. It also grants the Quebec government the power to adopt regulations imposing requirements for pesticide storage, sale and use. The two regulations currently in force under the Act are: 1) the Regulation respecting permits and certificates for the sale and use of pesticides; and 2) the Pesticides Management Code.

The Pesticides Management Code, in force since April 3, 2003, initially prohibited the use of certain pesticides on lawns of public, semi-public and municipal properties. In April 2006, the prohibition was extended to private and commercial properties, except golf courses.

2.3.3 Water Resources Preservation Act and Quebec's Water Policy

The Act to Affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection came into force in 2009. This Act creates a new division in the EQA titled Water Resource Protection and Management. Henceforward, water withdrawal authorizations are required for any withdrawal of water – defined as the taking of surface water or groundwater by any means – in amounts exceeding 75,000 litres per day. Authorizations are valid for 10 years and government decisions regarding their issuance and renewal must give priority to public health needs and the environment. No water withdrawn in Quebec may be transferred out of Quebec. Exceptions are provided for water used in hydroelectric power generation, agriculture and bottled water operations. Regulations issued in 2011 require payment of fees for water takings: C$0.0025 per cubic meter, except oil and gas extraction and industries where water is incorporated into the final product (such as the bottled water industry), in which case the fee is C$0.07 per cubic meter.

2.3.4 Natural Resources Legislation

Quebec has several laws regulating natural resources development and conservation.

In 2009, Quebec amended the EQA to include provisions requiring reporting of GHG emissions and providing for the establishment of a cap-and-trade system. Regulations identifying entities subject to the reporting requirements were issued in 2011.

In December 2009, the Ministry of Natural Resources (MNR) tabled a bill (Bill 79) in the National Assembly that would amend the Mining Act in a number of areas, including: to clarify that surface minerals are owned by the landowner; to raise the amount of the reclamation guarantee to 100% of anticipated reclamation costs and accelerate payment thereof; and to make more mining projects subject to environmental assessment and public consultation obligations. New draft legislation tabled in 2011 retains the earlier proposals and makes development activities in urban areas or cottage country subject to approval by the local municipality (subject to an override by the regional country municipality).

In 2009, MNR began the process of delegating to municipalities its powers to regulate and issue leases and permits for sand and gravel extraction.

The Natural Heritage Conservation Act allows the MSDEP to designate various types of protected areas in Quebec, sometimes on an emergency basis. The Act respecting the conservation and development of wildlife sets out rules for hunting, fishing and trapping on public land, allows the government to adopt wildlife conservation measures, and contains provisions for accommodating the rights of Aboriginal Peoples.

The Forest Act is intended to promote sustainable forest management. It contains different sets of requirements for public and private forests. Persons carrying on a forest management activity in public forests, other than road maintenance, must hold a forest management permit. The Act also provides for the negotiation of timber supply and forest management agreements, and forest management contracts. An authorization must be obtained from the MSDEP pursuant to the Tree Protection Act to destroy or damage a tree, sapling or shrub, or any underwood, anywhere other than in a forest under the management of the MNR. In case of failure to obtain such authorization, punitive damages may be payable.

Quebec’s Act respecting the sustainable management of the forest territory became law on April 1, 2010, though most provisions take effect in March 2013. It includes a triad approach to land use planning, where the forested land base is divided into three types of areas, each with its own level of land use intensity: 1) off limits to resource development (biodiversity conservation); 2) sustainable resource management (multiple use, with a focus on ecosystem-based forest management); and 3) intensive forestry operations (plantation agriculture). Another element is decentralized decision-making by local forest management corporations using results-based management, with MNR taking a step back and concentrating on protecting the public interest, addressing aboriginal issues, road planning, and certain other matters. A further innovation will be selling fibre at market prices, giving existing rights-holders a right of first refusal on market-priced lumber.

The Petroleum Products Act is intended to ensure the continuity and security of the petroleum products supply. Regulations under the Petroleum Products Act and related statutes set out standards governing the types of permitted petroleum products (oil and gasoline), the use, monitoring and maintenance of petroleum storage tanks and other petroleum equipment, leaks and leak prevention, safety procedures, and government inspections and reporting, among other matters. The Building Act creates a regulatory framework for high-risk petroleum products storage equipment, including permit requirements.

The Quebec government has an energy strategy for the period 2006-2015. The document is available online at: http://www.mrnf.gouv.qc.ca/english/publications/energy/strategy/guidelines-strategy.pdf. The strategy calls for development of all energy resources, including oil and gas, as part of a long-term plan to ensure energy security. MNR is currently carrying out strategic environmental assessments for offshore oil and gas exploration and development in the Gulf of Saint Lawrence. In 2011, the Quebec government issued regulations making well completion activities subject to the requirement to hold a certificate of authorization under section 22 of the EQA, issuance thereof to be preceded by a public consultation.

2.3.5 Sustainable Development Act (SDA)

In addition to providing a definition of sustainable development, the SDA creates the position of Sustainable Development Commissioner to conduct environmental audits within the office of the Auditor General. The SDA establishes a Green Fund to finance MSDEP initiatives. The fund is financed in part through a levy on fossil fuels. In the summer of 2009, the government tabled legislation aimed at expanding the categories of persons subject to the payment of this levy (Bill 54). The SDA elevates the right to environmental quality set out in the EQA to the level of an economic and social right under the Quebec Charter of Human Rights and Freedoms.

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