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Individual Consultations and Public Hearings on the Working Paper on Off-Highway Vehicles Delivered by the Deputy Minister of Transport
Comments by Le Protecteur du citoyen presented to the Committee on Transportation and the Environment
Québec
March 2006
Table of contents
Introduction
This is not the first time that Le Protecteur du citoyen has submitted comments on the issue of off-highway vehicles (OHVs). In 1988, Le Protecteur du citoyen recommended that Ministère des Transports reduce the speed limit for snowmobiles traveling within thirty meters of a private home. The Regulation respecting off-highway vehicles adopted in December 2004 in the wake of the Superior Court’s decision on the class action lawsuit by the Coalition for Environmental Protection of the “Petit Train du Nord” linear park, dated November 20041, corrected this situation in this regard.
Due to my concerns regarding this issue, it is my pleasure to respond to the invitation from the members of the Committee on Transportation and the Environment and to give you my comments on the working paper on off-highway vehicles made public by the Deputy Minister of Transport on February 8.
I will not review the technical aspects of the proposals set forth in the working paper because many citizens or groups affected by the issue previously expressed their viewpoints during the regional consultations held last spring. I will instead comment on the proposals that affect the rights of citizens to recourse, which in my opinion may introduce inequity to the rules of peaceful coexistence of all citizens.
A brief review of the background that led to the document submitted to us and of the proposals in that document will assist me in better explaining the substance of my comments.
1 Background
As we know, the use of OHVs, snowmobiles, and all-terrain vehicles (ATVs), especially for recreational purposes, has grown substantially in Québec since the beginning of the 1990s.2 As the recent study by the Minister of Tourism3 confirms, this activity has become a very important development tool for certain regions due to the economic benefits that it generates.
With the growth of this industry, environmental protection, personal safety, and quality of life have become major concerns for the population. These considerations are also among the government’s top priorities. We have therefore been asked to address the following question: «How can the network of trails take into account the needs of tourism, such as the presence, proximity, and quality of services and tourist attractions, and at the same time, the health and well-being of populations next to the trails and other users of the land?»4.
In order to reconcile these apparently contradictory challenges, and after the Superior Court decision, which may have major consequences for snowmobiling for recreational purposes in Québec, the Government imposed a moratorium in December 2004 on all lawsuits based on neighborhood annoyances or related to noise or odors, to allow time for public consultations and to propose plans for a permanent solution. The moratorium began at the same time as the entry into force of the Regulation respecting off-highway vehicles, which set new guidelines for this activity.
The proposals contained in the working paper are the result of public consultations held last spring. Basically, the Minister proposes to protect the OHV industry by establishing stable inter-regional networks of trails, while imposing greater supervision of conduct in this activity in order to reduce the negative impacts for citizens living next to the trails.
2 Proposals in the working paper
For purposes of my presentation, I will review only some of the proposals in the working paper, placing them into two categories.
2.1 Measures to Protect Public Health, the Environment, and Safety
In order to better protect public health and ensure that OHVs are operated more safely while respecting the environment, the document proposes to take action through legislative and regulatory means as well as through awareness campaigns.
2.1.1 Tightening the Rules (Chapter 5 of the Working Paper)
The proposed legislative and regulatory amendments deal more specifically with the technical requirements that OHVs must meet to reduce pollution and noise emissions and the rules for traffic on the trails, as well as the supervision of vehicle rental for tourism purposes. They are also intended to clarify and increase the authority of municipalities and RCMs in the area of OHV traffic. In this regard, it is proposed that municipalities no longer be required to seek Ministère du Transport (MTQ) approval of municipal bylaws authorizing OHV traffic on public roads, as is currently the case under the Highway Safety Code (HSC), but instead simply be required to inform MTQ. This measure would fulfill the municipalities’ desire to shorten the regulatory process and would have the effect of promoting more immediate involvement by the municipalities5.
2.1.2. Patrolling Trails and Awareness (Chapters 6 and 7)
The establishment of Special Trail Patrols in charge of enforcing the Act respecting off-highway vehicles (AROHV), as well as educational and awareness campaigns in schools and other locations, is also part of the plan to promote improved compliance with the rules and respect for the environment.
2.2 Measures Intended to Ensure the Sustainability of Trails
The public consultations raised the concern of a number of groups, mainly the federations of OHV clubs and RCMs, that trail sustainability be ensured. According to these participants, individual negotiation of rights-of-way on private property and the possibility of other lawsuits such as the one that led to the Superior Court decision are factors that could well lead to trail closings and endanger the survival of the OHV tourism industry. These groups have also asserted that the existence of permanent networks would encourage safer conduct of the activity.
The document proposes two types of measures that are likely to ensure the stability of trails.
2.2.1 Regional Coordination (Chapter 2)
Coordination is one of the suggested solutions. It would proceed as follows:
- The establishment of regional tables of citizen representatives and various socioeconomic stakeholders affected by the OHV issue with a mandate to plan permanent inter-regional snowmobile and ATV trails in each region by May 2009
- Setup of a provincial advisory committee to harmonize the work of the regional tables
A regional body such as the Conférence régionale des élus, which would be granted financial assistance for the duration of the mandate, would oversee the work of each table. However, the document does not specifically state whether the tables and the advisory committee are permanent bodies.
2.2.2 Immunity from Civil Liability Lawsuits (Chapter 4)
The other measure suggested by the Minister is based on the legislative approach. The document proposes to protect the inter-regional trail networks established by the tables and recognized by the Government against lawsuits based on neighborhood annoyances or damage related to noise or odors, by legislative amendment. To receive such protection, the trails must observe certain guidelines concerning development and noise impacts, to be determined by the Act or by municipal bylaws.
The Minister believes that this protection is «necessary to protect the investments of the various levels of government and the federations in setting up or reconfiguring the trails and to maintain the economic benefits generated by OHVs in the regions.»6
3 Comments
The approach envisioned in the paper of coordination, awareness, and improved regulation of OHV use in Québec shows that the Government is eager to reach a common ground of understanding between users and persons living next to the trails, a goal LeProtecteur du citoyen can only applaud.
However, I question certain proposals that, if retained, could disrupt the balance of rights, harming citizens living next to the trails and perhaps even preventing the «harmonious coexistence» that the Minister is seeking.7.
3.1 Immunity From Civil Liability Lawsuits
My main concern is the Minister’s proposal to protect inter-regional networks from lawsuits before the courts (see 2.2.2 above).
The severity of the proposed measure appears to me disproportionate to the goal being pursued. Although I do not question the Minister’s decision to protect the economic benefits of OHV use by tourists, the issue as a whole does not, in my opinion, require a solution as radical as that of taking away fundamental rights. We must remember that the right of peaceful enjoyment of one’s property and the right to a public and impartial hearing by an independent court are recognized by Article 6 and Article 23 of the Charter of Human Rights and Freedoms.8 These guarantees cannot be abolished without demonstrating that such a measure is necessary to ensure that the public interest is protected.
I am particularly concerned about the imbalance of power that such legislative immunity would create between local residents on the one hand and user groups on the other, which already enjoy the support of the state and of municipalities concerned with protecting the economic benefits of OHV use. In a society such as ours where the rule of law prevails, it is important for all citizens to have completely equal access to the systems that allow them to be heard. Access to the courts is the only way to have one’s rights recognized by an independent third party.
In my opinion, the fact that the inter-regional networks of trails will represent a regional consensus and be subject to more stringent regulation, as the Minister proposes, does not justify the immunity that is proposed.
The consensus approach for creating the trails may not be enough, in itself, to guarantee harmonious coexistence. In addition, a question can be raised as to the actual power that local residents will have at the tables and on the provincial advisory committee compared to the other participants. Real consensus can only be achieved by equitable representation of all of the interest groups on these bodies, together with other measures, such as the obligation to submit any changes to the regulation of the trails to public consultation, or by making the tables into permanent bodies in charge of accepting suggestions to improve the network. Therefore, in order to encourage dialog and consensus, it will be necessary to:
Ensure equitable representation of citizens living next to OHV trails at coordination tables and on the provincial advisory committee.
Furthermore, regulations cannot foresee every eventuality. If they could, citizens would never file lawsuits and the issue of legislative immunity would not arise. As the Superior Court stated, recognition that a nuisance exists depends upon the context, and it is defined in contrast to the concept of normal neighborhood annoyances described in Article 976 of the Civil Code of Québec. It follows that the rules, as exhaustive as they may be, cannot protect against every possible nuisance and every annoyance. Thus, it is essential to maintain the right of citizens to access to the courts in order to seek decisions from the court that they have suffered harm due to OHV traffic, even though the rules were followed.
Moreover, we must bear in mind that the rules the trail networks will have to follow in order to receive protection against lawsuits may change and evolve as a result of municipal bylaws, and that the setup of the networks is not due to be completed until May 2009. Until then, what recourse will citizens have? We know that under Bill No. 90, adopted in December 2004, the moratorium on lawsuits will end on May 1, 2006. Does the Government intend to extend it until such time as the coordination tables finish their work? That would mean that all complaints would continue to be prohibited for three years, even though no networks have been put in place. The working paper is silent on this point. I believe that the immunity should end permanently beginning on May 1, 2006. In addition, Le Protecteur du citoyen recommends:
Re-establishing and maintaining the right of citizens to launch court action based on neighborhood annoyances or harm caused by noise or odors arising from OHV use.
In addition, the re-establishment of the right to seek legal redress should be accompanied by the establishment of an impartial and effective mechanism for processing complaints, for example, through municipal or regional bodies. The existence of a “legitimate and credible"9 conflict resolution mechanism would have the advantage of offering citizens a worthwhile alternative before they consider taking legal action. Therefore, I am making the following recommendation:
Provide a legitimate and credible conflict resolution mechanism for matters related to the impacts of OHV traffic on the quality of life of citizens.
Every alternative to achieve this should be explored because it appears to me this type of process would encourage coexistence and, ultimately, promote sustainability.
3.2 Removal of the Obligation for Some Municipal Bylaws to be Approved by the Minister of Transport
I have questions regarding the effect of this proposal which, if retained, would also contribute to upsetting the balance of power among the various interests involved since it would, for all intents and purposes, exclude an expert and independent party, Ministère des Transports du Québec.
MTQ approval, which is required under Section 627 of the HSC, is intended to ensure that OHV use on public roads, which is generally prohibited by the AROHV, remains safe and meets the community’s needs.
I understand that the proposal is a response to municipalities that, supported by the federations of OHV clubs, desire greater independence in this regard, because they believe that they are in the best position to respond to local needs.10 However, I am concerned that such a measure may reduce MTQ’s responsibility. The mere requirement to inform the department, even associated with the obligation to produce a report on safety and signage in addition to the bylaw, as proposed in the working paper, does not have the same impact as formal approval in terms of responsibility.
Although the obligation may appear restrictive to municipalities, it nevertheless provides certain guarantees that municipal bylaws are not only safe, but also not solely motivated by economic reasons, and that they will not have the effect of unduly penalizing citizens.
We would also stress that if responsibility is taken away from MTQ in this area, it would raise questions about the jursidiction of Le Protecteur du citoyen, who has authority over Ministère des Transports, but not over municipalities. Citizens would no longer be able to seek Le Protecteur du citoyen’s help with such approvals, for example regarding the failure to examine certain information.
In summary, in my opinion it is necessary to:
Maintain the obligation to have municipal bylaws governing OHV traffic on public roads approved by Ministère des Transports. This obligation should also be combined with a formal obligation for MTQ to examine whether there is a consensus within the community on every proposed bylaw submitted for its approval.
Conclusions and recommandations
Le Protecteur du citoyen believes that however important the economic considerations related to the recreational use of OHVs by tourists may be, these considerations must be weighed against all the rights of every citizen. The working paper suggests several alternative solutions in this regard. However, it appears to me that some of these solutions threaten to upset the balance. Therefore, my recommendations are aimed at maintaining this balance in order to move in the direction of the harmonious coexistence the Minister would like to achieve.
In summary, I recommend:
- THAT regional coordination tables and the provincial advisory committee ensure fair citizen representation vis-à-vis the other participants for the creation of inter-regional networks of trails;
- THAT the right of citizens to seek legal redress based on neighborhood annoyances or harm connected to noise or odors be re-established and maintained;
- THAT a legitimate and credible complaint processing mechanism on matters related to the impacts of OHV use on the quality of life of citizens be established, for example, through regional bodies; and
- THAT Ministère des Transports remain responsible for approving municipal bylaws authorizing OHV use on public roads, and that it be required to examine whether the bylaws represent a consensus.
Notes
- Coalition for Environmental Protection of the “Petit Train du Nord” Linear Park v. Laurentides (Regional County Municipality) REJB 2004-81143 (C.S.). [back to text]
- GOVERNMENT OF QUÉBEC, Public Consultation Regarding Off-Highway Vehicles, Issues Paper, 2005, p. 7. [back to text]
- TOURISME QUÉBEC, Mesure de l’impact économique de la pratique récréotouristique de la motoneige et du quad au Québec, Rapport synthèse des résultats de l’étude [Assessment of the Economic Impact of the Use of Snowmobiles and All-Terrain Vehicles for Recreational and Tourism Purposes in Québec, Summary Report on Results of the Study], Québec, February 2006. [back to text]
- Id., note 2, p. 35. [back to text]
- Id., note 2, p. 25. [back to text]
- GOVERNMENT OF QUÉBEC, Commission parlementaire sur les véhicules hors route, Document d’orientation, Briller parmi les meilleurs [Parliamentary Committee on Off-Highway Vehicles, Working Paper, Shine Among the Best], Québec, February 2006, p. 13. [back to text]
- Id., note 6, p. 5. [back to text]
- L.R.Q., ch. C-12. [back to text]
- LE PROTECTEUR DU CITOYEN, A Legitimate, Credible Complaints Office. Complaints Processing in Governmental Organizations, Québec, 2001. [back to text]
- UNION DES MUNICIPALITÉS DU QUÉBEC, Mémoire présenté à la ministre déléguée aux Transports dans le cadre de la Consultation publique sur les véhicules hors route, [Brief Submitted to the Deputy Minister of Transport on the Occasion of Public Consultations on Off-Highway Vehicles], 28 June 2005, pp. 12 and 13. [back to text]
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