Quebec Private Law, Destined to Preserve the Environment?

Summary

We can no longer ignore the fact that human activities have a significant impact on ecosystems. The planet is threatened with imminent danger. Since the law regulates social and economic activities, it can and must participate in the search for solutions to protect the environment. This necessity is also felt in the civil law, even if its traditional legal tools and concepts were not designed to address the environmental challenges we are facing today. The environment is therefore a privileged terrain for ideological and legal debates on our actual model of ownership and on the ongoing tension between general interest and collective or individual interests. Civil law, which guarantees an individualistic conception of ownership, is now being called upon to provide solutions to problems related to the protection and conservation of the environment. Civil law jurists are now being asked to rethink the social function of property in terms of environmental protection. Indeed, the conception of ownership as an individual's sovereignty and absolute power over property has contributed to turning land, and therefore nature, into a thing that can be exploited at will. This has accentuated many of the current environmental ills. In his time, Louis Josserand clearly demonstrated the ‘social impossibility of an absolute right of ownership’. Quebec civil law, which inherited the absolute conception of ownership from the Napoleonic Code, abandoned that conception in the recodification in 1991. The legislator preferred to enshrine the free and complete nature of the right of ownership, thus explicitly recognizing the limits of the owner's powers over his property. Today, it is essential to rethink the role of private ownership as a social instrument for preserving the environment and biodiversity.

An increasing number of private initiatives are making use of civil law instruments to conserve both natural and cultural heritage by combining contract law and property law. As such, the desire to preserve these properties, which are of a certain environmental, ecological or cultural interest, is transforming and transcending the traditional conception of the selfish owner. The Quebec conception of individual ownership, which stems from the Romano- Germanic tradition, finds itself confronted with this new environmental reality.