Lawyer Profile
Jules Brière
Québec, Québec
Overview
Bill 5,1 An Act to accelerate the granting of the authorizations required to carry out priority national-scale projects (Bill 5), tabled by Finance Minister Éric Girard, is part of a broader government strategy to accelerate the completion of strategic projects in Quebec. Inspired by federal law C-5,2 Bill 5 aims to streamline the administrative process behind major projects so that they can be rolled out more rapidly. Purpose of Bill 5: make it easier to grant authorizations for strategic projects The government’s stated intention is to stimulate the Quebec economy by accelerating the administrative process underlying strategic economic and energy projects to be designated by it. These projects must: generate major economic spinoffs; create jobs; and further the energy transition. During his opening speech of the session, Premier François Legault stressed the fact that lead times need to be shortened and administrative processes need to be streamlined, while maintaining high standards. The goals are clear, but does Bill 5 actually make it possible to achieve them? Framework and scope of Bill 5: transition to a single authorization for large-scale projects Bill 5 will allow the government to change how various laws are applied to accelerate national-scale projects in Quebec without circumventing environmental assessment processes and the rights of Indigenous communities. It provides for the granting of a single authorization allowing both the project and all of the operations necessary for its completion to be carried out. In the context of a mining project, this means the granting of environmental authorizations under the Environment Quality Act (“EQA”)3 and mining titles under the Mining Act,4 as well as the approval of a preliminary version of the rehabilitation and restoration plan required by the Mining Act5 and any other authorization required by the Natural Heritage Conservation Act6 of the Act respecting the conservation and development of wildlife,7 among others. Indigenous communities Why James Bay and Northern Quebec are excluded Section 2 of Bill 5 stipulates that the Bill applies subject to any act aimed at implementing the Agreement concerning James Bay and Northern Québec8 and its amendments,9 as well as the Northeastern Québec Agreement. These agreements are put into practice in particular under Title II of the EQA, which establishes an environmental and social impact assessment and review procedure in which Indigenous communities must participate, as prescribed by the agreements. Title II of the EQA is part of the list of provisions that the government cannot add to the list of laws having an authorization process that can be replaced by the authorization granted under Bill 5. The constitutional obligation to consult Indigenous communities Bill 5 stipulates that it must be interpreted in a manner consistent with the obligation to consult Indigenous communities, and that these communities must be consulted separately when circumstances warrant doing so.10 Consulting Indigenous communities is one of the government’s constitutional obligations. As such, it could not in any case have set that obligation aside. In short, an authorization cannot be granted more rapidly under Bill 5 at the expense of the obligation to consult the Indigenous communities of southern Quebec. Also, in its assessment of an application for the designation of a project, the government may in particular consider whether the project takes the interests of local and Indigenous communities into account.11 This implies prior consultation work by the project proponent, further to which it can document the concerns and interests of Indigenous communities and adapt its project accordingly. In James Bay and Northern Quebec, mining projects are generally subject to the environmental and social impact assessment and review procedure provided for in Title II of the EQA. They fall completely beyond the scope of Bill 5.12 Contradictions in Bill 5 and implementation challenges The challenges of the two-year implementation deadline Although the Bill is presented as a way to fast-track projects, not a way to circumvent the law, a number of issues remain where mining projects are concerned. Exclusion of mining projects in James Bay and Northern Quebec The text of Bill 5 is clearly intended to apply to mining projects. Take section 4 para. 2(1) which mentions, among the points that can be considered for the designation of a project, the fact that it would consolidate Québec’s autonomy and resilience, in particular as regards energy, critical and strategic minerals or infrastructure. However, Bill 5 cannot apply to projects governed by Title II of the EQA, that is, those located in the territory covered by the James Bay and Northern Quebec Agreement. As such, many mining projects are excluded by default. This contradiction raises questions about the overall effectiveness of the Bill for mining projects, the implementation of which it claims to accelerate. Prerequisites for granting authorization maintained By its very nature, Bill 5 is intended to apply to large-scale projects, and section 1 of the Bill describes these as priority, national-scale projects. However, large-scale projects such as these are likely to be subject to the environmental impact assessment and review procedure or, at minimum, to the EQA’s ministerial authorization regime. It is important to note that, in order for an authorization to be granted under Bill 5, all the steps prior to that authorization must have been completed. Section 10 of Bill 5 stipulates that the application for authorization “must mention the permissions allowing the proponent to carry out the project ... and must be accompanied by the information and documents required as well as the payment of the duties and fees payable for the granting of those permissions.” If the project is subject to the environmental impact assessment and review procedure, the procedure must be completed before an authorization under Bill 5 can be granted. The only difference in the procedure is in section 30 of Bill 5, which stipulates that, when the impact statement for a designated project is deemed admissible, the Minister of the Environment mandates the BAPE to hold a public hearing, and the BAPE then proceeds without holding an information period. With the recent amendments made to the EQA by the Act to amend various provisions relating to the environment (also known as Bill 81), which, according to representations made by representatives of the MELCCFP, aim to reduce the impact assessment and review procedure from 18 months to 9 months, we wonder whether Bill 5 will actually contribute to accelerating the administrative process underlying projects already subject to the impact assessment and review procedure. Short-term implementation criterion The requirement for short-term implementation (approximately two years taking into account the combined effect of sections 4 para. 2(5) and 20 of Bill 5) seems unrealistic for large-scale projects requiring comprehensive consultations and assessments. In the case of mining projects, the granting of an authorization including a mining lease must be preceded at a minimum by the approval of a preliminary version of the rehabilitation and restoration plan and the payment of a provisional financial guarantee. Despite the fact that section 46 of Bill 5 scales down requirements,13 the preparation, even of a preliminary version of such a plan, requires time and the collaboration of experts in the field to meet the expectations of the MRNF. Thoughts and outlook While it may be appealing to think it possible to reduce the time required to grant the necessary authorizations for large-scale projects that could generate major economic spinoffs for Quebec, it appears that, in terms of environmental protection, Bill 5 does little to address a key issue, namely the time it takes to prepare application files, whether for a ministerial authorization or as part of the environmental impact assessment and review procedure. Add to this the fact that, to complete these processes, additional studies are generally required, depending on the questions and requests for clarification raised during the analysis phase. Bill 5 offers no solution to the issue, which, however, is probably the most significant issue when we consider the time and energy that project proponents must devote to the file preparation phase. Conclusion: We don’t know whether proponents will see greater efficiency Bill 5 shows that the government is indeed trying to increase government efficiency and spur economic growth. However, it leaves mining project proponents hanging by immediately excluding projects located in the James Bay area and further north, and by not addressing the time it takes to prepare environmental impact assessment and review files or applications for authorization. Takeaways Does Bill 5 make it possible to avoid BAPE hearings? In a word, no. The BAPE process continues to apply to designated projects, but the public information stage is eliminated to jump directly to the hearing stage, slightly reducing the time needed to complete the process. Which mining projects will benefit most from Bill 5? Primarily projects involving critical and strategic minerals located in southern Quebec, provided that proponents can demonstrate that short-term implementation is possible (approximately two years). Why does Bill 5 not apply to James Bay and Northern Quebec? Because the separate environmental and social assessment processes (Title II, EQA) that apply to these territories were established by agreements that Bill 5 cannot unilaterally amend. Bill 5, An Act to accelerate the granting of the authorizations required to carry out priority national-scale projects: https://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-5-43-2.html Federal Bill C-5: https://www.parl.ca/documentviewer/en/45-1/bill/C-5/first-reading Environment Quality Act: https://www.legisquebec.gouv.qc.ca/fr/document/lc/Q-2?langCont=en Mining Act: https://www.legisquebec.gouv.qc.ca/fr/document/lc/m-13.1?langCont=en Section 46 of Bill 5 scales down requirements regarding the rehabilitation and restoration plan, providing for the granting of an authorization instead of a mining lease without such a plan having been approved—that is, if a preliminary version of such plan has been approved by the Minister of Natural Resources and Wildlife and a provisional financial guarantee has been paid. The rehabilitation and restoration plan will likely still need to be considerably advanced. A mining authorization establishes the time limits within which the rehabilitation and restoration plan must be approved and the financial guarantee paid. Natural Heritage Conservation Act: https://www.legisquebec.gouv.qc.ca/fr/document/lc/C-61.01?langCont=en Act respecting the conservation and development of wildlife: https://www.legisquebec.gouv.qc.ca/fr/document/lc/c-61.1?langCont=en James Bay and Northern Quebec Agreement: https://www.canada.ca/en/impact-assessment-agency/corporate/james-bay-northern-quebec-agreement.html Section 2 of Bill 5 refers to section 1 of the Act approving the Agreement concerning James Bay and Northern Québec, which states the following: “In this Act, unless the context indicates a different meaning, the expression “Agreement” means the Agreement reached between the Grand Council of the Crees (of Québec), the Northern Québec Inuit Association, the Government of Canada, the Société d’énergie de la Baie James (the James Bay Energy Corporation), the Société de développement de la Baie James (the Société de développement de la Baie James), the Commission hydroélectrique du Québec (the Commission hydroélectrique du Québec) and the Gouvernement du Québec, dated 11 November 1975, and the Amending Agreement dated 12 December 1975, tabled in the National Assembly, 9 June 1976, as Sessional Documents, Nos 101 and 102.” Section 2 of Bill 5 also refers to section 1 of the Act approving the Northeastern Québec Agreement, which states: “In this Act, unless the context indicates otherwise, the expression “Agreement” means the Northeastern Québec Agreement reached between the Band of Naskapis of Schefferville and its members, the Gouvernement du Québec, the Société d’énergie de la Baie James (the James Bay Energy Corporation), la Société de développement de la Baie James (the James Bay Development Corporation), the Commission hydroélectrique de Québec (the Québec Hydroelectric Commission) (Hydro-Québec), the Grand Council of the Crees (of Québec), the Northern Québec Inuit Association and the Government of Canada, dated 31 January 1978, tabled in the National Assembly on 18 April 1978, as Sessional Papers, No. 113.” Section 3 of Bill 5 Section 4 para. 2(3) of Bill 5 Schedule A of the EQA provides that “all mining developments, including the additions to, alterations or modifications of existing mining developments” are subject to the mandatory assessment and review procedure provided for in sections 153 to 167 and 187 to 204 of the EQA. Section 46 of Bill 5 provides for the approval of a preliminary version of the rehabilitation and restoration plan and the payment of a provisional financial guarantee instead of the financial guarantee established on the basis of the final version of the rehabilitation and restoration plan.
In Vavilov, the Supreme Court of Canada revised the applicable legal framework for the determination and application of the standard of judicial review of administrative decisions. Changes were made to the analytical framework for determining the applicable standard of review and clarification was provided as to how the standard of reasonableness should be applied. The objective was a more easily identifiable standard and diminished debate on the standard of review applicable to a given administrative matter. On December 19 and 20, 2019, the Supreme Court of Canada published three administrative judicial review decisions in the cases of Vavilov1, Bell Canada2 and Canada Post Corporation3. In the first case, which dealt with espionage, the majority set out a new approach to the judicial review of administrative decisions, with particular regard to the application of the reasonableness standard. The other two decisions similarly illustrate the application of these new principles. Determining the appropriate standard of review Presumption of reasonableness The new analytical framework includes a presumption that reasonableness is the applicable standard in all cases. Going forward, whenever a court reviews the merits of an administrative decision, it should begin with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. As a result, it is not necessary for courts to engage in a contextual analysis as there are no longer categories of questions for which the standard of review is not identified at the outset. Categories of questions subject to the correctness standard The categories of questions to which the standard of correctness applies remain essentially the same: Constitutional questions; Questions regarding the respective jurisdictional boundaries of the specialized tribunals; Questions of law of central importance to the legal system as a whole; more specifically, it is no longer necessary for the question submitted to be outside the area of expertise of the decision-maker; rather, it is sufficient that it is of central importance to the legal system as a whole. Category of jurisdictional questions “Jurisdictional questions”or “true questions of jurisdiction” are no longer questions for which the correctness standard must be applied. Although this is not a major change in itself, the Supreme Court has often stated that this type of question is exceptional. Now that the fate of these questions has been clarified, the standard of reasonableness applies. Cases where the law provides for a statutory appeal mechanism In cases where the law provides for an appeal of an administrative decision to a court of law4, counsel must now defer to the appellate standards of review, keeping in mind the nature of the question at hand (question of law, question of fact or question of mixed fact and law) as opposed to the standards of judicial review. Cases where the law specifies the applicable standard of review The presumption of reasonableness review can be rebutted where a legislature expressly outlines the standard of review applicable to a given administrative decision. In such cases, the standard determined by the legislature applies. Important Take Aways The Vavilov judgment marks a major shift in the state of the law of judicial review. For this reason, prior case law should be treated with caution. The situations in which the presumption of reasonableness review can be rebutted are limited to the five listed above: the three categories of questions where the application of the correctness standard is required, cases of appeal provided for by law, and cases in which the legislature has expressly specified the applicable standard. Nevertheless, the Supreme Court appears to have opened the door to subsequent recognition of new exceptions, albeit on an exceptional basis and in accordance with the analytical framework and principles set out in the decision. Applying the reasonableness standard – Moving forward In addition to revising the analytical framework for determining the applicable standard of review, the majority provides a series of clarifications and indications on how the standard of reasonableness should be applied, and refers to a “more robust form of reasonableness review.” It is important to follow future judgments of the Supreme Court (in addition to other lower courts) in order to accurately measure the impact of this new framework for applying the reasonableness standard. Our colleagues specialized in administrative law, labour law and litigation remain at your disposal for any questions that may arise. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Bell Canada v. Canada (Attorney General), 2019 SCC 66. Canada Post Corporation v. Canadian Union of Postal Workers For example, the appeal of certain decisions of the Administrative Tribunal of Québec to the Court of Québec.
THE 1979 STATUTEIt is well known that, under the legal regime for the protection of agricultural lands, the acquisition of agriculturally zoned lands with a surface area of four hectares or more by a person not residing in Quebec is subject to the authorization of the Commission de protection des terres agricoles. This is the object of the Act respecting the acquisition of farm land by non-residents (CQLR chapter A-4.1) (the “Act”), which has been in force since December 21, 1979.This Act provides that the Commission must authorize the acquisition of land by a non-resident if it finds that the land in question is not suitable for the cultivation of the soil or raising of livestock. It must also do so if the person making the application declares that they intend to settle in Quebec. In that case, the authorization is conditional upon proof by the purchaser that it has become a resident and, once such proof is submitted, the acquisition of the land in question becomes irrevocable. In all other cases, the Commission will consider the application for authorization on the basis of the biophysical conditions of the soil and of the environment, the economic consequences arising from the possible uses of the land for agricultural purposes, the effect of granting the application on the preservation of the agricultural soil and on the homogeneity of the farming community and farming operations.CHANGESBill 46, which was assented to and came into force last October 30,1 substantially reduces the access to agricultural zones by non-resident purchasers. The amendments it makes to the Act have three main restrictive effects: they increase the stringency of the conditions required to qualify as a resident of Quebec; they add an annual limit on the area of the lands open to acquisition by non-residents; and they impose additional criteria which the Commission must take into account when considering an application for authorization.THE QUEBEC RESIDENCY CONDITIONSSince 1979, a natural person2 was considered to reside in Quebec if the person had stayed in Quebec for at least 366 days (12 months and one day) during the 24 months immediately preceding the date of the acquisition of the farm land, or following the acquisition date, in the case of a non-resident who intended to settle in Quebec.Henceforth, to be a resident of Quebec, a natural person must be a Canadian Citizen or permanent resident under the Immigration and Refugee Protection Act (S.C. 2001, c. 27) and must have lived in Quebec for at least 1,095 days (36 months) during the 48 months immediately preceding the date of acquisition or, in the case of a person who intends to settle in Quebec, following the date of the conditional acquisition authorized by the Commission, as the case may be.By requiring citizenship or permanent residency and by increasing the duration of the stay in Quebec from 12 out of 24 months to 36 out of 48 months, the legislature aims to reserve access to good farm land to true residents of Quebec.LIMIT OF 1,000 HECTARES PER YEARFurthermore, a new provision has been added to the Act (s. 15.3) which places a limit of 1,000 hectares on the total annual area of land suitable for the cultivation of the soil or the raising of livestock which the Commission may authorize the acquisition of by persons not intending to settle in Quebec.This purpose of this new legislative restriction imposed on the Commission is essentially to reduce the risk of a massive land grab of good farm land by non-residents.NEW CRITERIAFinally, when assessing an application to authorize the acquisition of land where it finds it to be suitable for the cultivation of the soil or the raising of livestock based on the biophysical conditions of the soil and of the environment, the Commission must henceforth take the following factors into consideration:1° the intended use, in particular the applicant’s intention to cultivate the soil or raise livestock on the farm land that is the subject of the application;2° the impact of the acquisition on the price of farm land in the region;3° the effects of the acquisition or projected use on the economic development of the region;4° the development of agricultural products and the development of underutilized farm land; and5° the impact on land occupancy.The imposition on the Commission of this specific set of criteria for its analysis indicates the legislator’s intention of ensuring that the acquired lands are in fact used for agricultural activities and of preventing lands suitable for cultivation or the raising of livestock from being acquired for purely speculative purposes.These amendments have no retroactive effect and do not apply to applications for authorization pending on October 30, 2013.SANCTION OF NULLITYIn closing, we note that the Act provides that the acquisition of farm land by a person not residing in Quebec without the Commission’s authorization, or without complying with the conditions prescribed by law, is null and void, and any interested person, including the Attorney General of Quebec, may apply to the Superior Court for a declaration of the nullity thereof. If no such action is instituted, the Commission may order the contravening purchaser to divest itself of the farm land within a time period determined by it. If the purchaser does not comply with the order, the Commission may apply to the Superior Court for authorization to sell the land by judicial sale (s. 28)._________________________________________ 1. An Act to amend the Act respecting the acquisition of farm land by non-residents (2013, chapter 24).2. A legal person is considered to reside in Quebec if it is controlled by one or more natural persons residing in Quebec.
Fresnillo plc, the world's largest primary silver producer and a major player in the gold sector in Mexico, has entered into a definitive agreement to acquire Canadian company Probe Gold Inc. for a total consideration of approximately CAD 780 million. This transaction, carried out through a statutory plan of arrangement, marks a crucial step for Fresnillo in its international expansion strategy. Listed on the London and Mexican stock exchanges, Fresnillo strengthens its position as a global leader in precious metals with this acquisition. By integrating Probe's assets, including the flagship Novador project in the Val-d’Or gold district of Quebec, Fresnillo expands its project portfolio and establishes a presence in one of Canada's most promising mining areas. Lavery is proud to advise Fresnillo on the legal aspects of this acquisition in Quebec. Our team provided expertise in mining law, labor and employment law, real estate law, environmental law, and relations with First Nations. Under the leadership of Sébastien Vézina and Jean-Paul Timothée, our team included Valérie Belle-Isle, Jules Brière, Carole Gélinas, Eric Lavallée, Jessica Parent, Yasmine Belrachid, Siddhartha Borissov-Beausoleil, Radia Amina Djouaher, Eric Gélinas, Ghiles Helli, Jessy Menar, Nadine Giguère, Annie Groleau, Joëlle Montpetit, Ana Cristina Nascimento, Thomas Cazelais Turcotte, and Clara Fortin. This collaboration demonstrates Lavery's commitment to providing legal advice tailored to the complex issues of the mining industry in Quebec. The transaction is expected to close in the first quarter of 2026, subject to required approvals, thereby strengthening economic ties between Quebec and Mexico in the precious metals sector.
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Bar Information
Called to the bar: 1963 (QC)