Montreal, September 7, 2023 – The Centre québécois du droit de l’environnement (CQDE) is concerned about Bill 22 on expropriation, which will be studied by the National Assembly starting on September 14. As it stands, the bill does not address the current issues surrounding disguised expropriation or the question of compensation. Rather than helping municipalities, it could actually harm them, and even increase the risk of legal action. This is why the CQDE will be stressing in its brief and in the specific consultations the importance of greater legal predictability, of a framework for compensation that takes the collective interest into account, and of giving the bill a retroactive scope to support the conservation efforts of municipalities.

Unpredictability paralyses the ecological transition

At present, the absence of clear legal guidelines to define the notion of disguised expropriation creates a great deal of legal unpredictability. This uncertainty encourages the filing of numerous lawsuits, fuelling an already explosive situation in the municipal sector, particularly where conservation is concerned. The ever-increasing number of lawsuits against municipalities is now estimated to cost at least one billion dollars in public funds in compensation claims. The CQDE deplores the fact that Bill 22 fails to address this central issue by completely ignoring the urgent need for clear legal guidelines.

“The unpredictability of disguised expropriation has a particularly serious effect on municipalities and paralyses their conservation efforts,” explains CQDE lawyer Merlin Voghel. “Instead of responding to the cry of alarm from municipalities and citizens, Bill 22, in its current form, is a major step backwards for the conservation of natural environments and increases the risk of legal action,” he adds.

Compensation: an imbalance between individual and collective interests

The current version of Bill 22 also creates a major imbalance between individual and collective interests when it comes to compensation. In addition to the numerous lawsuits, communities are at risk of being forced to compensate for the loss of future profits due to recent judicial interpretations of the “best and most beneficial use” (UMEPP) compensation criterion. By attempting to limit the scope of UMEPP, Bill 22 has the effect of increasing the possibility of assessing its value according to the use that could be made of the land in the future, based on unpredictable criteria. It does not limit the valuation with sufficient clarity to a possible value in the legal context existing before the expropriation. 

“At present, the bill does not sufficiently avert the risk of having to compensate projections over three years. As a result, a developer owning undeveloped land could be compensated, using public funds, for a use that has not yet been carried out, such as subdivision, and whose likelihood of being carried out is based on vague and unpredictable criteria. This kind of approach is already fuelling numerous legal debates and absolutely must be reformed,” says Mr Voghel.

For example, the town of Rosemère is being sued for $278 million for a golf course it bought for $18 million, on which it plans to build 3,000 homes. The municipality’s annual budget is $37 million. “This is an example of the risk of a massive transfer of public funds to private funds, which is based precisely on the unpredictability of the law in terms of disguised expropriation and compensation,” adds Mr Voghel.

Although the National Assembly still has the power to expropriate without compensation, CQDE recommends a nuanced approach based on municipal assessment that reflects the necessary balance between individual and collective interests in terms of compensation.

No response whatsoever to existing legal proceedings

The CQDE condemns the fact that Bill 22 is not retroactive, even though the National Assembly has full power to act on pending lawsuits. The bill thus dismisses all appeals for assistance from municipalities. Yet they are being prosecuted for trying to fulfil the conservation role entrusted to them by the government itself. Worse still, Bill 22 establishes a grace period of 6 months from the date of assent for legal recourse under the old legal regime, which is unpredictable and more favourable to investors and developers. 

“Rather than helping municipalities, the 6-month grace period provided for in the bill risks triggering a race against time for those wishing to take advantage of a more favourable regime, to the detriment of the environment and communities. The government needs to show leadership, remedy the situation and really address the problems that already exist, without delay”, says Me Voghel. 

It is essential that the bill puts the environment and the collective interest at the heart of conservation, environmental protection and the fight against climate change.  This is the message that the CQDE will convey in its brief submitted as part of the study of the bill and during the special consultations to be held from 14 to 21 September 2023 at the National Assembly.