The Act respecting the conservation of wetlands and bodies of water: Critical legal analysis of wetland compensation funds in Quebec

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Valérie Dupont, Sophie Lavallée

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Confronted with a significant loss of wetlands, many jurisdictions have adopted laws and policies that require developers to compensate negative impacts on wetlands by creating or restoring similar ecosystems, after taking appropriate avoidance and minimisation measures (mitigation hierarchy). Likewise, in 2017, the Government of Quebec adopted an act (Bill 132) that sets the objective of no net loss of wetlands and relies on the mitigation hierarchy to regulate human activities that may affect their integrity. Whereas this approach has the potential to promote sustainable development and incentivise developers and decision-makers to better consider their impacts, it is not without pitfalls. Aside from the avoidance and minimization stages not being sufficiently considered, compensatory measures have often been poorly designed and executed. This presentation will critically review the legal safeguards that have been established in Québec to ensure the effective implementation of compensatory measures in light of past experiences in other countries. To address the aforementioned issues, the new framework provides for the pre-identification of restoration and creation sites in regional wetland conservation plans, taking into account a watershed approach. In addition, the government of Quebec opted for a public compensation fund (in-lieu fees) instead of relying on permittee responsible measures or wetland banks. Whereas such a public fund can be invested more strategically by aggregating measures and by locating them in priority areas, the ex post implementation, however, raises interim losses. In addition, the equivalency between losses and gains is more difficult to ensure.

Resource Type:
Conference Presentation, SER2021

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