This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
The federal cabinet issued an emergency order to protect The Western Chorus Frog in suburban Montréal. The emergency order: http://canadagazette.gc.ca/rp-pr/p2/2016/2016-06-29/html/si-tr36-eng.php, which took effect on July 17, 2016 is intended to aid in the recovery of the endangered frog’s population, and is only the second such order issued since the federal Species at Risk Act (“SARA“) was passed in 2003. The order, issued pursuant to s. 80 and ss. 97(2) of SARA, prohibits a variety of activities, including disturbing soil and vegetation, altering surface water in any manner, constructing or maintaining infrastructure and operating motor vehicles, all-terrain vehicles or snowmobiles anywhere other than on a road or paved path. Contravening the order would constitute an offence under SARA and be punishable by a fine and/or imprisonment.
First listed as “threatened species” under SARA in 2010, the Western Chorus Frog is approximately 2.5 cm in length and is commonly recognized by the melodic croaking noise made by male frogs during the spring. The species is under particularly severe pressure in La Prairie, a suburb of Montréal, where almost 60% of the frog’s habitat disappeared between 1992 and 2013. The emergency order will protect approximately two square kilometers of habitat and will prevent the construction of 171 of 1,200 houses proposed as part of a residential development within the frog’s natural habitat.
The fate of the La Prairie frogs has been the subject of much controversy. After two previous requests for emergency protection orders were denied, in June 2015, a Federal Court judge granted an application for judicial review of former Conservative environment minister Leona Aglukkaq’s rejection of the proposed protection order and instructed the minister to reconsider the issue. Then, in August 2015, a Quebec Superior Court judge issued an injunction halting the development of the proposed housing project.
While those lobbying for the frog’s protection celebrated the protection order, others voiced criticism about two particular issues. First, the developer and provincial and municipal officials expressed concern that the order would cause uncertainty about future development and result in decreased investment in the region. While the order’s regulatory impact analysis acknowledged losses of $7.8 million in land value and $1.6 million in infrastructure that had already been installed but will now be unusable, the federal government will not compensate the developer for these losses, anticipating that the developer will “pursue development activities elsewhere.”
Second, David Heurtel, the Quebec Environment Minister, was openly critical of the decision, viewing it as unilateral federal government action at odds with the modern approach to co-operative federalism. As we have previously discussed: https://www.mltaikins.com/mining-natural-resources/climate-change-legislation-federal-infrastructure-projects-federal-government-need-provincial-cooperation/, recent court rulings have indicated that the federal government has significant constitutional power to take action on the environment. The SARA emergency order suggests that Prime Minister Trudeau’s government will not hesitate to take decisive action if it deems it necessary.