Modernizing the Watercourses Act: an end to double authorization

Part of Bill 102, An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund¹ amends the Watercourses Act to eliminate certain duplications with the obligations under the Dam Safety Act.²

The current rules

Since the Dam Safety Act and Dam Safety Regulation³ came into force in 2002, anyone wishing to construct, structurally alter or remove a dam has had to obtain prior authorization from the Minister of Sustainable Development, the Environment and the Fight against Climate Change (Minister), in the case of high-capacity dams, or file a declaration with the Minister, in the case of low-capacity dams. Authorization from the Minister is also required for any change in the use of a high-capacity dam likely to affect dam safety or whenever the operation of a dam is to be temporarily or permanently halted. A register of dams one metre tall or higher has also been established and is kept current by the Minister. These obligations vary by class, with dams classified on the basis of their size and the risks they pose to persons and property.

The Watercourses Act, which has been in force since 1856, also establishes an approval regime for building and maintaining dams. However, the Act does not make a distinction based on the risks posed by a dam, and approvals must be issued by the government, and therefore by order-in-council, in all cases.

Consequently, high-capacity and low-capacity dams are reviewed twice by the Ministry of Sustainable Development, the Environment and the Fight against Climate Change and must receive double authorization.⁴
 

Proposed amendments

The proposed amendments to the Watercourses Act are therefore aimed at eliminating such duplication and speeding up remedial work carried out on dams following the safety review required under the Dam Safety Act. According to the ministry, the proposed amendments to the Watercourses Act would affect 4,400 dams.⁵

The provisions of the Watercourses Act pertaining to dams are found in three divisions: Division VI – the driving of timber (sections 30 to 55), Division VII – the construction and maintenance of reservoirs for the storage of the water of lakes, ponds, rivers and streams (sections 56 to 67) and Division IX – the construction and maintenance of other dams and similar works (sections 71 to 79).

Submission of plans and specifications

The provisions relating to the requirement to submit plans and specifications for the dams for government approval would be repealed.⁶ For dams covered by Divisions VI and VII, a copy of the plans and specifications for the work would have to be deposited at the registry office for the registration division involved and the project would have to be made public through the publication of a notice in the Gazette officielle du Québec and in a newspaper circulated in the region where the project is to be carried out.⁷ For dams covered by Divisions VII and IX, a document would have to be sent to the Minister and the Minister of Energy and Natural Resources showing the location of the land where the work would be constructed; the area, location and nature of the land and other rights which would be taken, occupied or affected, upstream and downstream, by the backing up of water caused by the work; the area of the basin drained by the lake, the pool, the river or the stream and their tributaries; the resulting increase in the volume of water; and the total quantity of the flow and of the volume of water that would be produced by the improved lake, pool, river or stream.⁸

Concession of land and rights

The requirement to obtain, prior to construction, a concession of the lands or public rights in the domain of the State which will be taken, occupied or affected by the construction or the continued existence of the dam would be repealed⁹ and replaced by a new section stating that no person may construct, maintain or operate any work on a lake or watercourse in the domain of the State or any work that affects such a lake or watercourse without having obtained from the government an express concession of the lands or public rights which are or will be taken, occupied or affected by the work.¹⁰ As a result, the concession of land and rights would no longer be a condition for approval of the work and would be treated separately from safety.¹¹

Powers to issue orders

The Watercourses Act currently includes several provisions allowing the government to authorize the Minister to open or close any apparatus for emptying water from a work in certain situations and to take the necessary measures to keep such apparatus open or closed.¹² These provisions would be repealed and the Minister would instead have the power to order the operator of the work to do substantially the same thing.¹³ The Minister would also have the power to order an operator of a work to provide legal advice on the extent of the rights encumbering the land on which the work is located and the land flooded or likely to be flooded as a result of the work. The Minister would also be able to order that the boundaries of the land affected be defined by means of a survey.¹⁴ If the operator failed to comply with those orders, the Minister would be able to carry them out at the operator’s expense.¹⁵

While similar powers are set out in various divisions of the Watercourses Act, the bill also includes an additional power. Specifically, the Superior Court could, on a motion of the attorney general or any interested person, order the demolition of any work that is constructed or operated unlawfully.¹⁶

Penal provisions

The three articles of the Watercourses Act devoted to offences would be repealed¹⁷ and replaced by a complete and separate division dedicated to penal provisions.¹⁸ Depending on how serious the infraction is, the minimum fine would range from $1,000 to $5,000 for a natural person and from $3,000 to $15,000 in all other cases, and the maximum fine would range from $100,000 to $500,000 for a natural person and from $600,000 and $3,000,000 in all other cases.¹⁹ For directors and officers, the minimum and maximum fines that would apply in the case of a natural person would be doubled.²⁰ The fines would be doubled for a second offence and tripled for any subsequent offence.²¹ Terms of imprisonment could also be imposed for certain offences.²² If a legal person were to commit an offence, its officers and directors would be presumed to have committed the offence unless it could be established that the director or officer exercised due diligence and took all necessary precautions to prevent the offence.²³ The judge could also order an offender found guilty of an offence to take specific actions, such as restoring things to the state they were in prior to the offending act or paying an indemnity.²⁴

Power of inspection and notice of claim

The power of inspection available to the Minister’s representatives would be enhanced and detailed.²⁵ Provisions would be added to allow the notification of a notice of claim for the direct or indirect costs of enforcing an order issued under the Watercourses Act.²⁶ The directors and officers of a legal person that has defaulted on payment of an amount owed to the Minister would be solidarily liable with the legal person for payment of the amount, unless they established that they exercised due care and diligence to prevent the failure that led to the claim.²⁷ The orders and notices of claim could be contested before the Administrative Tribunal of Quebec.²⁸
 

Conclusion

The proposed amendments to the Watercourses Act aimed at eliminating duplications with the Dam Safety Act have been expected since the Dam Safety Act came into force in 2002.

Eliminating such double authorization would certainly shorten certain timeframes and avoid situations where a file is submitted for government approval, which invariably entails longer wait times. The same may be said about the concession of land and rights, which, while still a requirement, would no longer be a condition for approval of work.

The other amendments, for their part, would bring the Watercourses Act up to date and give the Minister powers similar to those conferred in other laws under the Minister’s responsibility.

On another note, the proposed legislation reflects the lawmakers’ effort to achieve consistency by introducing into the Watercourses Act order penal liability, inspection and claim regimes largely based on the regimes in the Environment Quality Act. This bill is expected to be studied by a parliamentary committee in the fall of 2016.

Footnotes

1. CQLR, c R-13.
2. CQLR, c S-3.1.01.
3. CQLR, c S-3.1.01, r. 1.
4. Not including other required authorizations, particularly under the Environment Quality Act (CQLR, c Q-2).
5. Ministry of Sustainable Development, the Environment and the Fight against Climate Change. Analyse d’impact réglementaire du projet de loi modifiant la Loi sur le régime des eaux. 2016. 7 pages. http://www.mddelcc.gouv.qc.ca/lqe/autorisations/air-projet-loi-regime-eaux.pdf (French only).
6. Sections 33, 36, 57, 61, 71 and 75 of the Watercourses Act (WA) would be repealed in accordance with sections 208, 210, 213 and 215 of Bill 102.
7. Section 209 of the bill provides for the replacement of section 35 WA and section 212 of the bill provides for the replacement of section 60 WA.
8. Section 211 of the bill provides for the amendment of section 59 WA and section 214 of the bill provides for the amendment of section 74 WA.
9. Sections 210, 213 and 215 of the bill provides for the repeal of sections 37, 63 and 76 WA.
10. Section 205 of the bill, which provides for the addition of section 3.1 WA.
11. Ministry of Sustainable Development, the Environment and the Fight against Climate Change. Analyse d’impact réglementaire du projet de loi modifiant la Loi sur le régime des eaux. 2016. 7 pages. http://www.mddelcc.gouv.qc.ca/lqe/autorisations/air-projet-loi-regime-eaux.pdf (French only)
12. Sections 7, 34, 58 and 73 WA. These sections would be repealed pursuant to sections 206, 208, 210 and 213 of the bill.
13. Section 217 of the bill provides for the addition of section 83.1 WA.
14. Idem.
15. Idem.
16. Section 217 of the bill provides for the addition of section 83.2 WA.
17. Articles 215 and 219 of the bill provides for the repeal of sections 79, 85 and 86 WA.
18. Section 217 of the bill provides for the addition of Division X.1 Penal Provisions, i.e. sections 83.3 and following WA.
19. Proposed new sections 83.3 to 83.5 WA.
20. Proposed new section 83.7 WA.
21. Proposed new section 83.6 WA.
22. Proposed new section 83.5 and 83.6 WA.
23. Proposed new section 83.11 WA.
24. Proposed new section 83.14 WA.
25. Section 218 of the bill proposes the replacement of section 84 WA.
26. Proposed new section 84.1 WA.
27. Proposed new section 84.2 WA.
28. Proposed new section 84.10 WA.