Bill 61 on Economic Recovery: What Are the Impacts on the Environmental Obligations of Businesses?

On June 3, 2020, in an effort to promote post-COVID-19 economic recovery, the Government of Quebec introduced Bill 61, granting it substantial powers to carry out infrastructure projects or any other project requiring authorization by government decree.

In environmental matters, the Act to restart Quebec’s economy and to mitigate the consequences of the public health emergency declared on 13 March 2020 because of the COVID-19 pandemic (the “Bill 61”) provides broad powers to the government to carry out any of the 202 infrastructure projects identified in Schedule 1 of Bill 61, or any other project that may be added to this list by government order after a parliamentary committee of the National Assembly has studied such a project for one hour.

The suggested acceleration measures cannot be granted to a project more than two years after the assent of this bill.

The Authority of the Government to Render the Requirements of the Environment Quality Act Inapplicable or to Replace Them

Bill 61 allows the government to adopt a regulation exempting one or more activities in an infrastructure project from one or more requirements of the Environment Quality Act (the “EQA”), including those concerning the prior issuance of ministerial authorizations, with the exception of the following few activities, which will remain subject to the regular authorization or modification procedure provided for in sections 22 or 30 of the EQA:

• any work, construction or other intervention likely to permanently harm wetlands and water areas;
• any construction on a former waste disposal site;
• subsequent operations resulting from projects covered by this Act.

Bill 61 also sets out some limitations on the amendments that the government may make to the environmental impact assessment and review procedure.

In addition, the regulations adopted by the Government cannot derogate from the provisions set out in Title II, which applies to projects carried out in the James Bay and Northern Quebec region.

Apart from these few exceptions, Bill 61 does not set limits or guidelines with respect to the EQA provisions that might not apply to a project and with respect to alternative measures that the government might adopt. This extraordinary bill makes it possible to substitute, on a project-by-project basis, environmental rules enacted by the executive branch for environmental rules adopted by the National Assembly.

Furthermore, Bill 61 provides the Ministère de l'Environnement et de la Lutte contre les changements climatiques ("MELCC") with a broad access to any information, document or study that will enable him to ensure that such project complies with the laws and regulations under his responsibility.

In this context and considering the new measures of access to environmental information effective since March 2017, we wish to point out how important it is for a project proponent to identify, in any request for ministerial authorization, the industrial and commercial secrets considered as confidential, pursuant to section 23.1 of the EQA, provided, obviously, that this section will continue to apply to a given project.

The inspection and investigation powers under the EQA will apply in the same way to these alternative measures.

Financial Compensation May Be Required for Projects Carried Out in Certain Plant or Wildlife Habitats

Through Bill 61, the government creates the possibility for the MELCC or the Ministère des Forêts, de la Faune et des Parcs (the "MFFP") to impose or determine financial compensation that a project proponent must pay when undertaking a project in the habitat of a threatened or vulnerable plant species or in a wildlife habitat.

Although Bill 61 determines the destination of such compensation, it does not provide any guidance in determining it. As for wildlife protection, however, the MFFP published in 2016 a summary of the financial compensation calculation tool in cases of loss of wildlife habitat, but this calculation tool has no mandatory legal status.

Removal of Ministerial Authorization for Projects Likely to Harm Fish Habitat

Other than in the case of threatened or vulnerable species, the government is removing the requirements of the Act respecting the conservation and development of wildlife to obtain a ministerial authorization to carry out an activity likely to modify a biological, physical or chemical element specific to fish habitat in accordance with paragraph 7 of section 1 of the Regulation respecting wildlife habitats.

These requirements are replaced by a lighter procedure under which a project proponent whose activities are likely to affect fish habitat, as described above, will be presumed to have obtained the required ministerial authorization if:

• (1°) it pays the financial compensation set by the MFFP;
• (2) it sends to the MFFP a description of those activities at least 30 days before they begin; and
• (3°) it sends the MFFP a mitigation measures plan.

When these acceleration measures are implemented, the MFFP will be able to require of all those carrying out a specific project to provide any information, document or study that will enabling it to assess the necessary financial compensation and ensure compliance with the measures. It may also charge the necessary fees for these purposes.

Possibility of Involving the Bureau d’audiences publiques sur l'environnement When Changing Boundaries of National Park

The MFFP will have the option to designate the Bureau d’audiences publiques sur l’environnement (the “BAPE”) to hold the hearing provided for in the Parks Act if an amendment to the boundaries of a national park is necessary for the implementation of a project, as well as to combine this hearing with any other mandate entrusted to the BAPE.

The government hopes to have this bill passed by the end of the parliamentary session, that is, by Friday, June 12, 2020.

For 25 years, BCF’s mission has been to support Canadian businesses. We understand the issues you face and our Environmental Law team is available to help you use the resources at your disposal. Do not hesitate to contact us to advise you on your environmental obligations.