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Where is the Best Place to be a Tree?

This article looks at a comparative study between Québec and Scotland legal frameworks regarding land protection and will underline what each location could learn from the other, to improve land protection.


Environmental Law is a really broad subject. So why have I chosen the topic of land protection? In my view as an environmental law student, there are a lot of stunning natural places that deserve to be protected. By now, with all of the climate change issues, the moment to act for future generations is now. Our inter-generational duty to protect the environment is becoming an increasing matter in today’s society. By our current actions, we are really close to reaching a point of no-return.

Understanding this general background, I have chosen two well-developed locations, namely Québec (Canada) and Scotland (UK). Both have a lot of one-of-a-kind natural places, and both are under a superior government. This short article will underline what each location could learn from the other, to improve land protection. There are a lot of ways to protect those natural places, such as political pressure, NGO lobbying, and improving existing bodies of law. I will elaborate on legal improvements, because, in my opinion, it is probably the most efficient tool, especially on a long-term basis.   

This essay does not have the aim to make a complete reflection over the comparison between Québec and Scots laws. However, this subject is not really covered by the contemporary literature; therefore it is worth a general reflection. I will start with an overall description of both of the legal environmental law systems and I will underline what their specific problems are.

1.    Legal framework

1.1 Québec Land Protection legal framework

I have to say, before starting, that Québec is the home of two legislative systems: civil and common law. In summary, most of the provincial laws are under the civil law system. The civil law system is used for the interactions between citizens, and between Québec government authorities and citizens. All interactions between citizens and the federal level are mostly under the common law system.

As everyone knows, Québec is a province in Canada. This fact has a direct influence in the legal framework. Effectively, there is a separation of legislative powers between the federal and provincial level. As the 1867 Canadian Constitution Act[1] establishes this in section 91 and 92, there are a lot of subjects that could be relative with environmental matters. Those two sections define what the powers of each level are.

’91. […] it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, […] 10.Navigation and Shipping.’

’92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, […] 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.[…] 8.  Municipal Institutions in the Province. […]13.Property and Civil Rights in the Province.’

In other words, municipal legislation is under the provincial authority. The federal and provincial levels both have their exclusive powers. Concerning Québec environmental legal powers, there is a lot to say under the municipal institutions. Firstly, they are under the provincial authority. Some authors call them ‘provincial creatures’[2]. So, municipalities have to deal with the provincial legislation. Regarding land planning, the Act Respecting Land Use Planning and Development [3], is often used. This law establishes the general license system for land uses.

Secondly, applying to the subsidiarity principle[4], municipalities often have the duty to deal with their respective territory. The major laws about regulating land protection at a municipal level are: the Municipal Powers Act[5] and the Cities and Towns Act[6]. The Municipal Powers Act gives the scope of the municipal powers, and their boundaries. Concerning environmental planning, section 4 establishes that: ‘4. In addition to the areas of jurisdiction conferred on it by other Acts, a local municipality has jurisdiction in the following fields: […] (4) the environment.’. This statement gives a broad field to municipalities to legislate ways  to protect the environment. In addition, the Cities and Town Act describes the way that a municipality should act within its powers.

I would now like to say some words about the environmental judicial institutions. At the provincial level, there are two specialised and two general tribunals. The first specialized one, called the BAPE[7], is an administrative tribunal based on public consultations. In the past, this institution was often used to decide on highly mediatized cases, when the public opinion was polarized. The second specialized tribunal is the TAQ, specifically concerning the Territory and Environment Section[8]. This tribunal often critiqued administrative procedures about land planning[9]. The first general court is the Québec Court. This tribunal has a very broad competence scope. After, if someone wants to appeal a decision of the Québec Court, or the TAQ, it would be done at the Québec Superior Court.

There are two quite famous cases about municipal land protection. Both went to the highest Court of Canada, namely the Supreme Court. The first one, Entreprises Sibeca inc v Frelishburg (Municipality[10]), is about suspected bad faith in municipal governance.  At first, Sibeca, a developer, had bought a field, comprising of the summit of a small mountain in the South of Québec. The municipal authorities, in a wish to maintain this rare ecosystem, had blocked and stopped all Sibeca permit requests for 8 years. The Supreme Court recognized that it was a ‘legitimate objective’ and allowed the municipality of Frelishburg to keep this ecosystem.

The second one, 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), is about a pesticides interdiction in the territory of the town of Hudson. Spraytech, a company of grass pesticides, has accused Hudson Council to overlap his powers. The Supreme Court has decided that section 4 of the Municipal Powers Act covers this subject. The Court had also applied the precautionary principle to justify this decision. It was the very first time that an international principle was applied in a Canadian environmental question.

1.2 Scottish Legal Framework

Three layers of government are competent in environmental matters in Scotland: European Union, United Kingdom and Scottish local authorities. At the EU Level, there are two main directives: directive 2009/147/EC on the Conservation of Wild birds, and Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora[11]. The aim of EU environmental laws is to create an ‘EU-wide network of sites known as Natura 2000 that are important for their conservation importance’[12].  In 2005, the Strategic Environmental Assessment, introduced by the European Union Directive, had the principal aim to influence public plans about environmental effects[13]. This directive was implemented in Scotland in 2005, via the environmental Assessment (Scotland) Act. This directive was applied for every public body, and some private companies that deal with public matters[14].

There are three main bodies at the UK level: Natural England, Natural Resources Wales, and the most important for this essay, the Scottish Natural Heritage[15]. Those bodies are generally referred by the term ‘statutory bodies’[16]. The Scottish Natural Heritage was established by the National Heritage (Scotland Act)[17], in 1991. Its aims are ‘to secure the conservation and enhancement of; and to foster understanding and facilitate the enjoyment of the natural heritage of Scotland’[18]. The concept of national parks has played a substantial role in land protection. In 2000, the National Parks (Scotland) Act came into force, and in 2002, the first National Park in Scotland was created. According to some authors, the main Scottish domestic laws are the interrelated categories of National Nature Reserve and Site of Special Scientific Interest[19].

There is also a lot to say about the important part that local authorities are playing in land protection and in planning matters. In 1997, the Town and Country Planning (Scotland) Act, defined the scope of town and country planning preparation. In 2009, the National Planning Framework 2 had provoked some significant changes regarding its legal predecessor[20]. Effectively, a ‘local development plan’ is now required for every local authority area. A strategic develop plan is also requested for each city region[21].

This little section has a principal aim to compare those two systems. The biggest similarity, in my opinion, is that both systems have to deal a lot with planning at the local level. The difference is easier to spot. In Québec, the competent authorities are divided between the federal on provincial powers. Most of the time, they do not overlap with each other. In Scotland, there are three layers of competent authorities: EU, UK and public government.

2.    Legal Gaps

The aim of this section is to stimulate the reflection about a subjective appreciation of both systems. What are the main problems? How do they deal with them? Which region is better suited to implement environmental-friendly practices? In this section, I will attempt to summarize those questions.

2.1 Québec problems

There is a lot to say about environmentally bad practices in Québec, and in Canada[22]. It is probably possible to write an entire thesis on each matter. In a concise way, I shall relate the problem to the connection between land protection issues and the respect of Québec Native People’s fundamental rights.

Firstly, there is a need to say that the Canadian mentality about native people is still colonialist. Native people are under the Indian Act[23]. This law, elaborated in the mid-19th century and only just recently refreshed, keeps Canadia’s native population in a poor educated people category, with dramatic lacks on all fields[24]. Considering that, it seems particularly easy to understand why they struggle to represent themselves in front of a big company or a public body regarding environmental questions.  Moreover, the Canadian legislative system costs a lot of resources at a high price, often beyond the capacity of tribes.

Secondly, particularly in Québec, the environmental tribunal, BAPE, have often dealt with this particular problem. In 2009, a planned hydroelectric power plant up north in Québec on La Romaine river, has been an area of great dispute between Hydro-Québec – the company- and an Innu tribe with some NGOs[25].  The Innu tribe was strongly opposed to the project on the basis of a violation of their fundamental rights, including the protection of an ancestral territory, and the right to be consulted. In their thesis, they explained how they feel about this project[26]. They underlined some key developments that had already touched their fundamental rights. They vigorously argued about their ancestral territory loss and about the non-respect of the Canadian and Quebecer ‘duty of care’[27] and mandatory consultation with Native People tribes.  Their thesis was opposed against several and scientific theses from public bodies, and from Hydro-Québec. At the end of this trial, one could easily predict that the Innu tribe had lost at this point. The La Romaine dam project has been started since 2009 and is planned to continue until 2020.

Unfortunately, this problem is only one of many. Another big issue actually in Québec is transparency. There is a duty to make information accessible to all citizens. By now, a lot of decisions are taken without any citizen consultation. Also, mainly in small cities, the planning authorities have quite often a mentality of development, but not one that is sustainable.

2.2 Scotland local gaps

No legal system is perfect. In a wish to have a great way to protect the environment, the Wildlife and Countryside Act 1981, created the sites of special scientific interest (SSSI). Those sites are chosen upon a variety of criteria, mostly because of their specific characteristics[28].  The selection choice is made by the local authority, here, the Scottish Natural Heritage. The authors Bell, MacGillivray and Pederson highlight that the procedure behind this is not transparent. It ‘is a process within which experts make judgments and take decisions on the basis of specialist knowledge’[29].

Some cases are relevant to show the problems with these kinds of administrative decisions. There is a famous one, from England[30]. This case outlines the legal processes behind the decision. There is no place, for the landowner concerned by a SSSI notification, to dialogue before a nine-month delay. After this, when the decision is made, there is no right to appeal. Moreover, those decisions about SSSI are rarely challengeable in courts. The main issue of this case is about human rights laws; namely, the right to have an independent and impartial trial. The landowner suspected the Council of English Nature to be partial.

There are surely a lot more issues with the Scottish environmental laws. For example, in theory, the waste definition is quite simple. In practice, this definition is really hard to apply in a neutral way.


As I have said, the extent of this essay is too short to make a complete comparative study about those two systems. However, those two systems have a lot in common and also have the opportunity to learn a lot from each other. By now, Québec could learn from Scotland about their own land reform. Effectively, instead of having a lot of private properties, this reform would be about a community ownership. The benefits of this system are to keep the benefits for the community, and also to develop some resources totally ignored by a private investor[31].


[1] British North America Act- The Constitution Act,  1867, 30 & 31 Victoria, c 3, sections 91 and 92.  

[2] D.Bouchard, ‘L’affaire Spraytech et le pouvoir des municipalités de règlementer les matières environnementales nouvelles’(2002) 3 Développements récents en droit de l’environnement 18.

[3] An Act Respecting Land use Planning and Development, CQLR c A-19.1.

[4]  Sustainable Development Act, CQLR c D-8.1.1, section 6 g).

[5]  Municipal Powers Act, CQLR c C-47.1, mostly based on section 4.  

[6]  Cities and Town Act, CQLR c C-19.

[7] BAPE stands for Bureau d’audiences publiques sur l’environnement. In common practice, the word BAPE is always used.

[8] Tribunal administratif du Québec.

[9] An Act Respecting Administrative Justice, CQLR c J-3, section 36.  

[10] Entreprises Sibeca Inc v Frelighsburg (Municipality) 2004 RCS 304.

[11] S. Bell et al, Environmental Law,  8th edn, (Oxford, 2013), 738.

[12] Ibid.

[13] N.A. Collar, Planning,3rd edn, (Edinburgh, 2010), 38. 

[14] R. McMaster et al, Scottish Planning Law, 3rd edn, (Edinburgh, 2013), 32.   

[15] S. Bell et al, op.cit, 723.

[16] C. Reid, Nature Conservation Law, 2nd edn, (Edinburgh, 2002), 69.

[17] Natural Heritage (Scotland) Act 1991, section 2 (1).

[18] Ibid, section 1 (1A).  

[19] S. Bell et al, op.cit, 724.

[20] N.A. Collar, op.cit, 35.

[21] Ibid.

[22] For this section between environment and native people, I have to mentioned that the ‘field of competence ‘about native people is under section 91 (24) Canadian Constitution.  However, there is a lot to say with the BAPE tribunal and Quebec legislations.

[23] Indian Act, RSC 1985, c I-5.

[24] G. Mativat, L’amérindien dans la lorgnette des juges, (Montréal, 2003), 15.

[25] M. Gauthier & L. Simard, Le bureau d’audiences publiques sur l’environnement : Genèse et développement d’un instrument voué à la participation publique, (Gatineau, 2011), 58.

[26] G-E Grégoire Uashaunnuat Chief, Mémoire au BAPE des Uashaunnuat- Projet hydroélectrique La Romaine, (Uashat, 2010), 4.

[27] Since the colonialism period, all legislations about Native people are based on this duty of care, or, in other words, on this fiduciary relationship.     

[28] S. Bell et al, op.cit, 725.

[29] Ibid, 729.

[30] On this subject, see the English case R(Aggregate Industries ltd) v English Nature (2003) AII ER 235.

[31] M. Hoffman, ‘Why community ownership? Understanding land reform in Scotland’ (2012) 289 Land Use Policy 289.  


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