Excavation Work at Northvolt's Future Battery Plant Goes Ahead Despite Growing Opposition
On Friday, January 26, Justice David Collier of the Quebec Superior Court refused to grant an interlocutory injunction to halt tree-cutting for a period of 10 days on the site of Northvolt's future battery plant which straddles the municipalities of Ste-Basile-le-Grand and McMasterville, Quebec. The interlocutory injunction, sought by the Quebec Centre for Environmental Law (CQDE) and three citizens from McMasterville, was aimed at forcing the Quebec government, a partner in the construction of the plant, to provide all the environmental assessment information held by the Ministry of Environment, the Fight Against Climate Change, Wildlife and Parks (MELCC) on the basis of which Northvolt was granted permission to begin work on the site.
Ministry of the Environment's So-called Transparency and Accountability
In 2017, Philippe Couillard's Liberal government amended the Environment Quality Act. It promised "zero net loss" for wetlands. The reality is quite different.
According to La Presse, "no fewer than 98 per cent of landfill applications are authorized. Verification is inadequate -- in 70 per cent of cases, no check is made to see whether another construction site was available. Monitoring is also inadequate. The majority of sites are not visited by inspectors and offenders do not lose their permits."
"Compensation doesn't work either. Developers can create or protect an environment of equal value or pay a penalty. They prefer to pay. The money should be used to restore wetlands. Yet barely three per cent of the money is being used.
"Nor has the Ministry of the Environment protected the wetlands of 'interest' recognized by its officials. On the contrary, it has increased the number of exemptions and reduced the financial penalties in certain regions. [...] The online public register of projects, which was promised in 2017, has not been implemented. This transparency measure was nonetheless a compromise offered to ecologists to win them over to this reform."[1]
This explains the repeated requests from journalists and environmentalists for access to information from the Ministry of the Environment and the several-week delays before they receive a response. Once the documents have been received, recipients often find that key parts have been redacted so that nothing can be concluded about their content.
Why did Judge Collier refuse to grant an injunction that would have temporarily stopped the clearing of trees and backfilling of wetlands when, according to his own admission, "there will be a loss of a natural environment that is both rare and important to the region's environment"?
Serious Harm and the Balance of Convenience
Among the reasons given in Justice Collier's 13-page judgment for refusing to grant the injunction are that "as with the ministerial authorization, the permit issued by the municipality [of Ste-Basile-Le-Grand] enjoys a presumption of validity and is presumed to have been adopted in the public interest," and that the CQDE and the three McMasterville citizens "have not succeeded in putting forward serious arguments that would cast doubt, prima facie, on the validity of the ministerial authorization and the municipal permit [...]."
Despite this, Justice Collier could not help but make two comments favourable to the aims of the CQDE and the citizens of McMasterville, even though "the plaintiffs did not pass the colour of right test."[2]
He said that the loss of trees and wetlands would be compensated by Northvolt, which would pay the sum of $4.7 million that "will be used to restore or preserve other wetlands" and "to plant 24,000 trees, the vast majority [of them] on its site."
He referred to Northvolt's threat and blackmail: "For its part, Northvolt maintains that it will suffer enormous economic harm if its project is delayed or ultimately abandoned because of the delays."
After pointing out that "the Government of Quebec believes that the Northvolt project is of great importance to the province's economy" and that "it is a 'green' and structuring project for the province," he concluded that "if there is a public interest in protecting the environment, there is also a public interest in protecting the legal security of activities authorized by the public administration" and that "given all the factors, the balance of convenience does not favour the issuance of an interlocutory injunction."
In other words, Justice Collier did not question the fact that the Quebec government, through the police powers granted to the Minister of the Environment, can change regulations at will to accommodate large private interests, all in the name of lofty ideals such as building a green economy.
More Court Actions Against Northvolt
On April 5, the CQDE, supported by three McMasterville residents, launched a lawsuit with the Superior Court of Quebec against the Quebec Ministry of the Environment to "contest the regulatory changes that set aside the holding of a review by the Environmental Public Hearings Bureau (BAPE) for Northvolt's gigafactory project." These regulatory changes were made in July 2023, just prior to the announcement of Northvolt's project in September 2023.
At the time of the announcement, CQDE's lawyer said: "Governments cannot be allowed to change standards at the whim of the client. Such a free pass would set a dangerous precedent. In light of the information revealed over the past few weeks, it seems all the more important to us to ensure respect for the rule of law and our democratic processes."
This is not the end of the Northvolt saga. The Mohawk Council of Kahnawà:ke (MCK) announced on January 23 that a lawsuit had been filed with the Quebec Superior Court "to demand orders requiring the provincial and federal governments to engage in consultation with the Mohawks of Kahnawà:ke regarding the Northvolt battery plant project in the Montérégie region."
The statement issued by MCK says "The MCK is seeking a declaration that both Quebec and Canada have breached the duty to consult, both with respect to their decisions to fund the project and, in the case of Quebec, by authorizing the destruction of wetlands without completing consultation. The MCK is also challenging the legislation that governs work in wetlands, arguing that these laws fail to consider, let alone respect, Indigenous rights."[3]
They also drew attention to the constitutional requirement that the federal and Quebec governments must consult Indigenous Peoples on this and all matters that pertain to the protection of the environment, as is the case with the expansion of the Port of Montreal in the Contrecoeur area.
This article was published in
Volume 54
Number 27 - April 20 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS54275.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca