Saturday, March 20, 2010

Water case law in Québec 3: groundwater extraction under the agricultural zoning regime


In Québec, a new groundwater abstraction may have to be authorised under two governmental authorisation regimes.

The first regime is provided for by the Groundwater Catchment Regulation and generally targets all groundwater extraction projects in Quebec.

The second authorisation regime, which is provided by the Act respecting the preservation of agricultural land and agricultural activities (ARPALAA), is not primarily concerned with groundwater management and is only applicable in rural areas.

Nevertheless, the ARPALAA has impacts on groundwater management in Québec. Some of these impacts are described in this article.

The purpose of the ARPALAA is to preserve agriculture and agricultural land. Essentially, the ARPALAA is a land use management statute that generally prohibits any person, except with the authorisation of the Commission de protection du territoire agricole (CPTAQ), from using real estate property for purposes other than agricultural activities in designated agricultural regions.

Hence, if someone wants to extract groundwater in zoned agricultural land, the CPTAQ has to pre-authorise the extraction project. However, CPTAQ's decision, whether positive or negative, can be contested before the Administrative Tribunal of Québec (ATQ).

In Vergers Leahy inc. v. Fédération de l'UPA de St-Jean-Valleyfield (in French), the Appellant requests CPTAQ's authorisation to sink a well to produce bottled water in agricultural zone. The CPTAQ rejects the application and the Appellant contests this decision before the ATQ. In this instance, the parties request permission to file new evidence.

Among the many issues pertaining to administrative law decided in this appeal, the Court of Appeal crucially delineates the cases in which new evidence can be brought before the ATQ in appeal of the CPTAQ.

The Court establishes that the ATQ can only consider new evidence when there is an error in law or a determining error in fact in CPTAQ's original decision, in conformity with section 21.4 of ARPALAA.

As a result of all this, a refusal to authorise a groundwater abstraction project stands.

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