FROGGY GOES A-COURTING
LITTLE FROG AT CENTRE OF LEGAL BATTLE BETWEEN FEDS, DEVELOPER
You’re unlikely ever to see a Western chorus frog, and not just because it’s so tiny it could easily sit on your fingertip. The diminutive amphibians are secretive, rarely seen except on warm nights during the breeding season, when the males come out to call.
Then, too, its numbers in Canada have been on the decline. While the frog occurs across large areas of the United States, its range in Canada is limited to southern Ontario and southwestern Quebec, where development has destroyed many of the temporary ponds the frogs need to breed. In 2010, the amphibian was listed as threatened under the federal Species at Risk Act.
Some of the last major groups of Western chorus frogs in Quebec live in the region of La Prairie, on Montreal’s South Shore. There, the tiny, elusive frogs have caused a years-long dispute after the federal government in 2016 issued an unprecedented emergency order to halt development on two square kilometres of land to protect their habitat. The decision was lauded by environmental groups, but raised the ire of developers, the city of La Prairie, and the provincial environment minister, who suggested it was an example of Ottawa meddling in provincial affairs.
Now, three years after the order was issued, one developer is going to court next week to fight for compensation for the land he claims the government has effectively expropriated, even as Ottawa says it has yet to make a decision about whether payment is necessary.
Under the 2002 Species at Risk Act, the federal environment minister can recommend an emergency protection order if a species faces “imminent threats to its survival or recovery.” The orders can prohibit a wide range of activities that could hurt the species or damage its habitat, but it’s a power that’s rarely been used.
I’M THE OWNER, BUT I’VE BEEN STRIPPED OF ALL THE VALUE OF MY PROPERTY.
The Western chorus frog emergency order was only the second ever issued, and the first that blocked development on private property.
The order applies to parts of three South Shore municipalities, including La Prairie, which the federal government in July 2016 said were “identified as habitat that is necessary for the recovery of the Western chorus frog.” Several developers had projects in the area, including Ted Quint, president of Quintcap, whose Symbiocité residential development was already partly built when the order was issued. The order meant that 171 of the development’s 1,400 residential units could not be built.
“I’m the owner, but I’ve been stripped of all the value of my property,” Quint told the National Post in an interview. “What kind of ownership is that?”
Quint said he’s made his peace with not being able to build on the land, but wants the federal government to compensate him to the tune of nearly $25 million — to date, no compensation has been offered. He filed a lawsuit in Federal Court in 2017, which will be going to trial in Montreal on Monday. “How does the government think they can just get away with stuff like this?” he said.
In its statement of defence, the government denies it has effectively expropriated Quint’s land, arguing only activities that would prevent the recovery of the species have been prohibited. According to the order, those activities include removing soil, damaging vegetation, altering surface water and building infrastructure.
But in an email to the Post, a spokesperson for Environment Minister Catherine McKenna said the government has not, in fact, decided against paying out money to developers. “The minister hasn’t made the decision yet whether or not to compensate,” Caroline Thériault said. In response, Quint’s lawyer, Jonathan Fecteau, said he was surprised the minister’s office is saying no decision has been made three years after the order was issued and days before the case goes to court.
The issue revolves around a clause in the Species at Risk Act that says the environment minister may provide compensation “for losses suffered as a result of any extraordinary impact” of an emergency order. But the law goes on to say the government must develop regulations laying out a process for compensation. Those regulations have never been created.
“It is highly reprehensible on the part of the defendants to have adopted the (order) without just and prior compensation of the plaintiffs and without any compensation mechanism having been foreseen beforehand,” Quint’s statement of claim reads. McKenna’s office did not respond to questions about why regulations for compensation still don’t exist.
Marc Bishai, a lawyer for the Centre Québécois du droit de l’environnement (CQDE), one of two environmental groups that fought to have the emergency order issued, said the need for compensation remains an open legal question. But he said it may not be financially viable to indemnify every private property owner in such cases. “I’m completely at ease with the idea that in certain cases, there will be no compensation, even if it seems in the short term like an inequitable situation,” he said. “You also have to think in the long term about how, collectively, we will take the means necessary to sufficiently protect the environment. We can’t do it financially, compensating everybody, all the time.”
CQDE and Nature Québec together called for an emergency protection order for the Western chorus frog in 2013, but the Harper government rejected the request on the basis that the species exists elsewhere in Canada. In June 2015, however, a Federal Court judge tossed out that decision and ruled the government should re-evaluate the case. That led to McKenna’s decision the following summer to issue the emergency order. The decision was met with dismay by developers and the mayor of La Prairie, who said it would reduce municipal revenue by $30 million over 20 years. The provincial environment minister, whose office had approved the Symbiocité project, said the order constituted a possible “intrusion of the Quebec government’s responsibilities.”
Still, the order was upheld in Federal Court last year when one of the developers tried to argue it was unconstitutional. That decision is under appeal. Regardless, Quint says he’s not taking issue with the order itself, as long as he gets compensation. “I am the owner of land, which I can sell,” he said. “Now you tell me who’s going to buy the land? The government isn’t buying the land because they got it for nothing, and the frogs are too smart to buy the land, because they’re enjoying it and they don’t have to pay.
“This is Kafkaesque.”