From: William Amos, on behalf of:
Peter Andrée
Chair, SOS Wakefield
33 Chemin Gendron,
La Pêche, Québec
J0X 3G0
819-459-1450
January 4, 2011
To: Pierre Arcand, Minister of Sustainable Development, Environment and Parks
Édifice Marie-Guyart, 30e étage
675, boulevard René-Lévesque Est
Québec (Québec) G1R 5V7
Telephone: 418 521-3911
Fax: 418 643-4143
Re: Petition for Minister to amend certificate of authorization and order further
environmental impact studies for Highway A-5 expansion to Wakefield.
Dear Minister Arcand,
I am writing on behalf of the Wakefield community group “SOS Wakefield” to request
that you take immediate steps to protect the Wakefield spring, a source of fresh water that
many members of our community depend on for their daily water supply. The spring is
threatened by the Ministère des Transports du Québec plans to expand Highway A-5
from Chelsea to Wakefield.
The environmental impact assessment for this project was carried out 1986, over two
decades ago. A certificate of authorization was issued by Décret 807-87 on May 27,
1987. The environmental impact assessment is clearly outdated, and does not reflect
current environmental values in Québec.
Action Requested from the Minister
Pursuant to s. 122.1 of the Environment Quality Act, R.S.Q. c. Q-2, the Minister may
amend or cancel a certificate of authorization under the certain circumstances:
Amendment or cancellation of certificate.
122.1. The Government or the Minister may amend or cancel any authorization certificate
issued by it or him or issued in its or his name in the cases where
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
(a) the authorization certificate has been issued on the basis of erroneous or fraudulent
information;
(b) the holder of the authorization certificate does not comply with the provisions contained
in it or uses it for purposes other than those provided for under this Act;
(c) the holder of the authorization certificate does not comply with this Act or a regulation
thereunder;
(c.1) the holder of the certificate fails to pay the fees prescribed by an order made under
section 31.0.1 ; or
(d) the holder of the authorization certificate does not avail himself of it within a period
of one year from its issue.
Section 31.4 of the Environment Quality Act also gives the Minister the power to require
more thorough investigation of environmental impacts at any time:
Information to Minister.
31.4. The Minister may, at any time, request the proponent of the project to furnish any
information, to study certain matters more thoroughly or to undertake certain research
which he considers necessary to fully evaluate the impact of the proposed project on the
environment.
We request that the Minister avail himself of his discretion under s.122.1 to amend the
certificate of authorization issued by Décret 807-87, making it conditional on a
satisfactory, up-to-date environmental impacts assessment which considers impacts on
the Wakefield spring.
Furthermore, we request that the Minister order a new environmental impact assessment,
including a full public consultation process under the Bureau d’audiences publiques sur
l’environnement (BAPE), which considers overall environmental impacts and impacts on
the Wakefield spring in particular, pursuant to s. 31.4.
Finally, we request that the Minister refuse to grant any new certificate of authorization,
or any other required permit, in relation to the planned expansion of Highway 5, until
such time as a new provincial environmental impact assessment is conducted.
Background on Highway 5 Expansion
The Ministère des Transports du Québec (MTQ), the project proponent, proposes to
extend Highway 5 between Chelsea and Wakefield, both of which are small towns just
north of Ottawa. An initial section of Highway 5 was built between Gatineau and Chelsea
in the 1970s. In the early 1990s, a further 2.5-km stretch was built to bypass the town of
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Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
Wakefield. Construction of another 2.5-km stretch in Chelsea was completed in
November 2009, representing Phase 1 of the new expansion. The Chelsea-Wakefield
expansion currently being considered represents Phase 2. In the future, Phase 3 will
connect Route 105 to Highway 5.
The MTQ conducted an environmental impact study for the extension of Highway 5
between Tenaga (now Chelsea) and Wakefield in 1986, pursuant to the Environment
Quality Act (RSQ, c. Q-2) and the Regulation on the evaluation and review of
environmental impacts (RRQ, 1981, c. Q-2, r. 9). The Government of Quebec issued
Décret 807-87 on May 27, 1987, granting a certificate of authorization to the MTQ.
On October 19, 2009 the MTQ submitted a request to amend decree 807-87, to allow for
an addition to the project that was not part of the 1987 authorization. The requested
addition was for the construction of an interchange at Cross Loop Road, which the MTQ
submitted would improve soil stability in that section of the highway. The MTQ
undertook an additional environmental assessment, submitted to the MDDEP in May
2010. The scope of the 2010 assessment was limited to the proposed changes (the
interchange on Cross Loop road).
Pursuant to section 122.2 of the Environment Quality Act, the MDDEP has authority to
amend or revoke a certificate of authorization. Accordingly, the MDDEP issued Décret
615-2010 on June 8th 2010, approving the request for the Cross Loop Road interchange.
The environmental assessment report for the modification is available online from
MDDEP. It concludes that the interchange is necessary for soil stabilization according to
current standards. It considers ecosystem impacts, including potential impacts on water,
but only within the very limited scope of the amendment.
SOS Wakefield’s interest in the A-5 and the spring
Formed in May 2010, SOS Wakefield is a group of citizens from the Municipality of La
Pêche and beyond who are interested in ensuring that the extension of the A-5 to
Wakefield has minimal impact on key values important to their community, including
protecting the Wakefield spring, ensuring ongoing access to Gatineau Park from
Wakefield via Brown’s Lake road, protecting the natural environment of the Gatineau
Park and adjacent lands, and ensuring that the highway interchanges that represent the
entrances to Wakefield are scale-appropriate for a small village based on a tourism
economy.
During the summer of 2010, SOS Wakefield collected over 2800 signatures from users of
the Wakefield spring to a petition that requested local politicians to undertake a
comprehensive environmental, economic and social assessment of the spring itself in
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
order to ensure that it is protected from all proposed development projects, including the
proposed Highway 5 extension.
Meanwhile, another group of local citizens, led by the engineer Louis Molgat, undertook
a study of the Wakefield spring’s users in order to give all organizations interested in the
spring a more accurate picture of its usage. This study determined that over 5000 people
use the Wakefield spring each year as their main source of drinking water. Two thousand
use the spring year round, while a further 3000 draw water from the spring only during
the summer months. They do so because the spring water is considered one of the purest
in the region and in many cases because their own wells do not provide clean water due
to long-standing problems with contaminated groundwater in Wakefield.
SOS Wakefield has actively encouraged its members to participate in the federal
environmental assessment process coordinated by Transport Canada, which included a
public consultation phase (via internet) in August of 2010. Unlike a provincial EA, the
federal EA process does not include a full public consultation. Nor does it consider
alternative highway design options.
Through a series of meetings in the autumn of 2010, we have also brought out concerns
to the attention of our Member of Parliament, Lawrence Cannon, our MLA, Stéphanie
Vallée, the municipal council of La Pêche, and the National Capital Commission (NCC).
These meetings appear to have had an initial impact. In late October of 2010, the
proponent of this project, the Ministère des Transports du Québec (MTQ), undertook
further study of the potential impacts of the A-5 extension on the Wakefield spring.
While the detailed results of this study are not yet available, it appears to be based on
very few samples taken over just a few days in October. In our view, it is unlikely that
just a few samples will lead to conclusive results, hence the need for further assessment
as mandated through a provincial EA.
In November 2010, and through Mayor Bussièrre of La Pêche, SOS Wakefield sought a
meeting with MTQ planners and engineers to raise our concerns with them and to
encourage them to incorporate more public input into the design of the highway
extension to Wakefield. Somewhat surprisingly, we have been informed by Mayor
Bussière and our Wakefield municipal counsellor Louis Rompré that the MTQ’s regional
director, Maroun Shaneen, has refused a meeting with representatives of SOS Wakefield.
As a result of the lack of attention to our concerns by the MTQ, we have no option but to
ask the Minister of Sustainable Development, Environment and Parks to revisit the
provincial Environmental Assessment for the A-5 between Chelsea and Wakefield.
The Limitations of the Environmental Impact Study of 1986
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Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
As noted above, the Government of Quebec issued Décret 807-87 on May 27, 1987,
granting a certificate of authorization to the MTQ for the A-5 project from Tenaga to
Wakefield. This certificate was based, in part, on an environmental impact study
undertaken by the consulting firm Beachemin-Beaton-Lapointe Inc. in 1986. In addition
to the points raised below, regarding the changing environmental context in Québec,
there are several key limitations to the provincial EA of 1986 that deserve mention:
First, that document notes that the route of the A-5 to Wakefield was established as early
as 1973 through a technical, economic and environmental study undertaken by this same
firm for the MTQ.1 It is notable that even the 1986 study considers minimal route
variations, unlike a normal EA at the provincial level, because the route appeared to be
determined over a decade earlier. The lack of alternative routing options was raised as a
key concern in February of 1987 by Raymond Lemyre, Chef du Service for the Ministère
de l’Environnement Direction Régional de L’Outaouis. He wrote (in a letter published in
a side-volume with that EA):
Nous sommes conscients que ce projet chemine depuis plusieurs années
déjà, mais est-ce que cela signifie que le tracé était déjà adopté avant la
production de l’étude d’impact? Une réponse affirmative à cette question
pourrait avoir des conséquences importantes sur l’étude elle-même.
Mr Lemyre continues, “il semble qu’à certains endroits, en modifiant légèrement le tracé,
il serait possible d’éviter ou de réduire des impacts importants.” This advice was never
heeded by the MTQ, though we recognize that it may continue to be relevant today in
relation to the concerns raised by SOS Wakefield.
Second, it is notable that the provincial EA makes no mention of any springs along the
route, or any impacts that the proposed highway extension could have on the subsurface
hydrogeology.
Third, it is also indicative of how outdated these documents are that they have no mention
of four of the seven federally-listed species at risk identified in the preliminary federal
environmental assessment of 2010 whose habitat is likely to be permanently destroyed,
notably one fish (margined madtom), two reptiles (Eastern milk snake, smooth green
snake) and one bird (Nelson’s sparrow). The report does mention the presence of other
federally listed species at risk, notably Blanding’s turtles, snapping turtles and Northern
water snakes, though no mention of their status as species at risk is given.
1Étude d’Impact sur l’Environnement. Prolongement de L’Autoroute 5 entre Tenaga et Wakefield.
Beauchemin-Beaton-Lapointe Inc. Décembre 1986
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
Fourth, it is notable that in 1986 it was recognized that Wakefield and Ste-Cécile-de-
Masham exhibited potential for increased tourism. The EA states that a feasibility study
had been undertaken in 1985 to examine the potential of developing a tourist steam train
service between Hull and Wakefield, and that a further study was being undertaken to
consider the feasibility of tourism infrastructure in the region, especially in terms of
projects that would interest the private sector. Needless to say, these initiatives have been
successful, and Wakefield is now a successful tourism destination that must protect its
image and its assets from inappropriate development plans in 2010.
Finally, while the highway proposals of the 1980s anticipated the need to connect
highways 105 (which then followed the course of what is now Valley Drive into
Wakefield) and the 366 to Ste-Cécile-de-Masham, there are no designs for an elaborate
interchange at the southern entrance of Wakefield, with two traffic circles, as proposed
by the MTQ in 2010. Such an overbuilt entrance to Wakefield was thus never considered
in the provincial EA in terms of its suitability for our village and its environmental
impact.
Modern environmental context in Québec
There have been significant legislative and policy changes in Quebec since 1986 that
support prioritizing water quality protection. An assessment of environmental impacts in
the current context should take this context into account.
The environmental impacts assessment undertaken by MTQ in 1986 is outdated and does
not reflect current environmental values in Quebec. The minor assessment carried out in
2010 considered only a limited scope of impacts related to the requested amendments.
Therefore, if this project is allowed to proceed it will be without consideration of
1) Impacts of the proposed A-5 extension on the Wakefield spring and the aquifer(s) that
feed it;
2) Impacts of the highway development on habitat for species at risk, particularly in the
Valle Verde wetland and aquifer recharge area; and
3) The implications for this project of the new legal context for groundwater protection
and sustainable development in Québec, including the application of the precautionary
principle, as outlined below.
The Minister’s decision regarding whether to exercise authority under ss. 122.1 and 31.4
of the Environment Quality Act, as requested by S.O.S. Wakefield, must take current
environmental values into account.
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
Imperial Oil Ltd. v. Quebec (Minister of the Environment) 2003 SCC 58, an important
case on statutory interpretation in environmental cases, dealt with a Ministerial order
under the Quebec Environment Quality Act. The court emphasized that while assessing
whether a particular order is reasonable, the court must consider the fundamental goals of
environmental policy and broader context of environmental legislation in the province.
Referring to decisions of the Minister under the Environment Quality Act, the court stated
(at 34):
He must make decisions in a context in which the need for the long-term management of
environmental problems plays a prominent role, and in which he must ensure that the
fundamental legislative policy on which the interpretation and application of environment
quality legislation are based is implemented. The Minister has the responsibility of
protecting the public interest in the environment, and must make his decisions in
consideration of that interest.
In Imperial Oil, the above factors supported the court’s decision to uphold a clean-up
order made by the Minister against Imperial Oil. There is no reason why the same
contextual analysis would not lead to the decision requested of the Minister here.
Key legislation and policy in the Quebec water context
New water legislation was introduced by the Quebec government in 2009 entitled Loi
affirmant le caractère collectif des ressources en eau et visant à renforcer leur
protection/ An Act to affirm the Collective Nature of Water Resources and Provide for
Increased Water Resource Protection, R.S.Q. c. C-6.2. The explanatory notes set out that
the Act “recognizes the right of every natural person to have access to safe drinking water
and sets out certain principles, including the duty to prevent damage to water
resources...”
The preamble of the Act sets out that:
AS water resources are part of the common heritage of the Quebec nation, and it is
important to preserve water and improve water management to meet the needs of present
and future generations;
[...]
AS the State, as custodian of the interests of the nation in water resources, must be vested
with the powers to protect and manage those resources.
Division II sets out principles to guide water governance, including:
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5. Every person has a duty, under the conditions defined by law, to prevent or at least limit
the damage the person may cause to water resources and to thus join in the effort to protect
water resources.
7. Under the conditions and within the limits defined by law, every person has a right of
access to any information on water resources that is held by public authorities and a right to
participate in public decision-making that affects those resources.
This new Act is part of reforms under the Quebec Water Policy, introduced in 2002. The
Policy contains further statements which support a protective approach to decisions
affecting water resources:
Water, like air, is recognized in the Civil Code of Québec as something whose use is common to all and
that must be governed by general laws (article 913).... The Québec government may therefore be called
upon to regulate and reconcile the often-conflicting uses of water, whether they involve preserving
ecosystems and natural habitats or carrying out economic-development activities. The government can thus
establish water use priorities in the public interest. Hence Québec intends to create the instruments
required, in the event of conflict, to give precedence to the essential right of individuals to access
this resource to meet their basic needs...
Moreover, the effectiveness of the legal and regulatory framework in respect of water arising from the
Environment Quality Act and the Watercourses Act and other legislative provisions will be assessed, and
reform proposals developed as needed. (at 9)
In addition, the Sustainable Development Act / Loi sur le développement durable, L.R.Q.
c. D-8.1.1 was introduced in 2006. Section 1 sets out the object of the Act:
to establish a new management framework within the Administration to ensure that powers
and responsibilities are exercised in the pursuit of sustainable development.
Chapter III sets out sustainability principles to “be taken by the Administration”. Among
the principles enumerated in s. 6 are “Environmental protection”, “Prevention”, and
“Precaution”.
The Government of Quebec’s Sustainable Development Strategy: 2008-2013 includes
several broad “Directions” to be adopted in decision making, including:
Direction 2: Reduce and manage risks to improve health, safety and the environment.
[...]
take a preventative approach to risk. Managing health and safety hazards is based on the
principles of prevention, precaution, environmental protection, access to knowledge, and
health and quality of life, stressing their associated causes. In the presence of a known risk,
actions designed to prevent or attenuate the potential effects of the phenomenon or event
feared must be taken, first at the source, using the best available and economically-
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Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
applicable techniques. In so doing, we can reduce negative medium- and long-term impacts
on health, safety and the environment and considerably cut intervention costs.
Direction 6 Practice integrated, sustainable land use and development.
[...]
development must be stimulated while preserving the integrity of the landscape and
agricultural potential, maintaining biodiversity, limiting the negative effects of resource use
and urban sprawl and protecting the watersheds.
All of this recent law and policy would support a decision of the Minister to: i) reconsider
the certificate of authorization for Highway 5; ii) refuse any new permit or certificate of
authorization that may be required for this phase of highway construction; and, iii)
require an up-to-date environmental impacts assessment consistent with current
environmental values. Arguably, these developments establish a new standard for
reasonableness in the context of determining whether or not reliance upon a 1986
environmental assessment is appropriate in Quebec.
L’article 982 du Code civil du Québec
Article 982 pertains to rights of users to prevent pollution of water sources. Water rights
provided for in the Civil Code are also potentially relevant context that should be
considered in environmental assessment.
Article 982 of the Quebec Civil Code provides :
À moins que cela ne soit contraire à l’intérêt général, celui qui a droit à l’usage d’une
source, d’un lac, d’une nappe d’eau ou d’une rivière souterraine, ou d’une eau courante,
peut, de façon à éviter la pollution ou l’épuisement de l’eau, exiger la destruction ou la
modification de tout ouvrage qui pollue ou épuise l’eau
Unless it is contrary to the general interest, a person having a right to use a spring, lake,
sheet of water, underground stream or any running water may, to prevent the water from
being polluted or used up, require the destruction or modification of any works by which
the water is being polluted or dried up. 1991, c. 64, a. 982.
Conclusion
We request that the Minister avail himself of his discretion under ss. 122.1 and 31.4 of
the Environment Quality Act, R.S.Q. c. Q-21 to order an environmental impact
assessment which considers impacts on the Wakefield spring, to refuse to grant any new
certificate of authorization or permit required to build the next phase of Highway 5, and
to amend the certificate of authorization issued by Décret 807-87, making it conditional
on the satisfactory results of this environmental assessment.
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
The Minister’s decision must take into account the context of environmental values in
Quebec, as discussed above. In these circumstances, it would be unreasonable for the
Minister to refuse this request, allowing the expansion of Highway 5 to continue based on
an environmental impacts study over two decades old.
We ask that you provide a comprehensive response to this letter by March 1, 2011. SOS
Wakefield will consider its legal options if a satisfactory response is not provided..
Sincerely,
William Amos, on behalf of
Peter Andrée
Chair, SOS Wakefield
c/o 33 Chemin Gendron,
La Pêche, Québec
J0X 3G0
819-459-1450
_____________
#107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319