Volume 19: Issue 1 (2022)
Valérie Dupont and Marc-Antoine Racicot
In 2017, the Government of Quebec adopted the Act respecting the conservation of wetlands and bodies of water, setting a goal of no net loss for wetlands and relying on the mitigation hierarchy (avoid, mitigate, compensate) to regulate human activities that may affect their integrity. To implement this last step in the hierarchy, the Government of Quebec opted for a public compensation fund in which permittees must pay a financial contribution (“in-lieu fee”) instead of relying on permittee-responsible measures or wetland mitigation banks. These contributions must be used by the fund manager to finance wetland restoration and creation projects. Although appealing, this approach is not without its pitfalls. Whereas such a public fund can be invested more strategically by aggregating measures and by locating them in priority areas, the ex post implementation raises interim losses. In addition, the equivalency between losses and gains is more difficult to ensure. In practice, many funds have failed to provide equivalent offsets in many jurisdictions for a variety of reasons, including the fees being insufficient, the funds not being spent in a timely manner, a lack of enforcement, a lack of adequate structure, or a lack of additionality. In light of these issues, this article critically reviews the legal safeguards that have been established in Quebec to ensure the effective implementation of compensatory measures.
Federico Díaz Chacón
Countless historically contaminated territories currently exist in the world. This problem is even more complex when contaminated territories are located near populated areas, affecting the right to life, health, physical and psychological integrity, and a healthy environment for inhabitants. In this context, litigation has become an important instrument for advancing human rights. Nonetheless, many of these human rights cases do not produce the positive results that are expected, both in the short term and long term. As such, this article examines how the legal system could effectively address historical environmental problems that affect human rights. This article develops a comparative analysis of two well-known cases of historical environmental contamination in Chile that occurred in 2018 and 2019: the Quintero Puchuncaví case and the Copiapó Tierra Amarilla case. Both cases involved a violation of human rights, individual and collective; addressed vulnerable populations and distributive justice; and denounced state omissions. Regardless of these similarities, the processes were carried out differently, with disparate results. This article analyzes the strategies and judicial processes of these cases—and their results to date—and seeks to better understand strategic human rights litigation around historical environmental contamination. Hopefully, this greater comprehension will increase the likelihood of their success and advance the respect and protection of human rights.
Stéphanie Roy
In winter 2021, the Regional County Municipality of Minganie and the Innu Council of Ekuanitshit adopted resolutions to provide rights and legal personhood to the Magpie River in Quebec. This event is part of a globally developing movement: the granting of rights to rivers, streams, and other natural entities to better protect them. Granting rights—and even legal personhood—to nature is imagined to be a solution to reestablish a human-nature relationship which reflects their interconnection and thus escape the current legal system’s anthropocentric ethic. These rights’ true efficacy rests, however, on the mechanisms that implement them. The guardianship framing the protection of New Zealand’s Whanganui River appears promising, as it imposes responsibilities on guardians tasked with protecting natural entities, creating an ecocentric model. But is granting rights to nature, who alone cannot challenge the liberal foundations of the legal system in which they operate, truly a better path to protect them? This article reflects on this question after assessing the legal stakes surrounding the grant of rights to the Magpie River in Quebec and the characteristics of New Zealand’s regime implementing the rights of the Whanganui River.
