The western chorus frog weighing approximately one-gram and measuring 2.5 centimetres from its nose to its back end stopped a private development proposal. The western chorus frog was listed as threatened species under the Species at Risk Act (“SARA”) in 2010. It is estimated that approximately 90 percent of the frog’s historical range in Southern Ontario and Southwestern Quebec had been lost to environment degradation.
One of the last remaining viable habitats for the western chorus frog was located in La Prairie, Quebec, which is a suburb of Montreal along the southern shore of the St. Lawrence River. A portion of that land, owned by a private developer, was proposed to be developed into a 1,200 unit housing project.
After several years of protest to the development by numerous environmental groups, in 2016 federal Environment Minister Catherine McKenna used the jurisdiction under SARA to issue a protection order covering approximately 2 km2 of land located within La Prairie considered to be critical to the western chorus frog’s survival. As part of that order, the federal government confirmed that no compensation would be paid to the owner of the property. That order came into effect on July 17, 2016 and created a conservation park of two square kilometres in the municipalities of La Prairie, Candiac and St-Philippe.
The federal government’s issuance of the order meant that it would be a criminal offence to develop in the area subject to the order. Because of the order the proposed housing project had to scale back its development to 1,029 housing units; a reduction of approximately 171 housing units.
The Quebec government, supported the development and expressed concern that Ottawa was “breaking the spirit of collaboration” between the government developments and the developers behind the project. The province of Quebec was concerned as it already negotiated a deal to protect 83 per cent of the area covered by the protection order and that Ottawa may be infringing on Quebec’s constitutionally recognized jurisdiction. The mayor of LaPraire stated that the reduction in the number of units permitted meant that approximately $30 million municipal in revenue would be lost over a period of 20 years.
The issuance of the order was surprising because when SARA was adopted it was expected that regulations would be drafted providing compensation terms for private landowners whose lands could be subject to a protection order. However, to date, no regulations governing compensation have been drafted by the federal government.
The Federal Court confirmed that the federal Environment Minister has the right to intervene in private development projects for the purpose of protecting biodiversity. On June 22, 2018 Justice LeBlanc, concluded that protecting an at-risk species on private property is constitutional and is not consider as a hidden form of expropriation. The Federal Court ruled that the federal government acted within its right in issuing the emergency protective order and stopping work on the housing development.
This represents the first time since the SARA was enacted in 2002 that the federal government issued an emergency protection order to stop development on privately owned lands and is only the second time that the federal government has ever issued such an order. The first time such an order was issued by the federal government was in 2013 when the emergency order targeted Crown land located in the provinces of Southern Alberta and Saskatchewan to protect the sage grouse from the impacts of oil drilling activities.
It remains to be seen whether or not the federal government will continue to use its emergency protective order powers on privately owned land.