The Lake Heney Association and the Fish Farm Saga
This is a story of conflict and collaboration, trying to find the right balance between environmental and economic concerns and how a small group of committed and well-organized citizens can make a difference by focusing on clear objectives and staying the course.
Heney Lake is one of a number of lakes in the Gatineau Hills of the Outaouais or West Quebec. It has a North-South orientation, 12 kilometers long, in the municipalities of Lac-Ste-Marie and Gracefield in the Gatineau Hills. Its first lake association, the Association for the Protection of Lake Heney (APLH), was started in 1979. Its first president was Donald Morin, with Jennifer Stewart as vice-president, and Bill Stratton as secretary-treasurer. Don died tragically in a house fire shortly after the Association was formed and Jennifer took over as president.
The APLH’s mission was to preserve the health of what was then a relatively pristine body of water. The health of a lake is measured by its total phosphorus content in micrograms per litre. A reading of less than 10 micrograms per litre represents low enrichment and a healthy lake (known as oligotrophic). There can still be acceptable water clarity and quality with total phosphorus readings in the teens. Above 20 micrograms per litre, however, a lake is becoming eutrophic, which presents as decreasing transparency of the water and increased algae growth and blooms, including toxic cyanobacteria. If the process of eutrophication is not halted, a lake eventually dies.
APLH’s first campaign, beginning in 1980, was to persuade the Quebec government to include Lake Heney in the Quebec Ministry of Environment’s Programme des lacs under the Direction de l’aménagement des lacs et cours d’eau. Supporting this application were key officials from the Programme des lacs, Monique Robillard, Maryse Hamel and Tony LeSauteur, together with the not-for profit Fédération des associations pour la protection de l’environnement des lacs (FAPEL). Over 150 cottage owners wrote letters to help in that campaign, which lasted two years – from 1980 to 1982. The program included a Water Quality Survey (which rated the lake as Class A – i.e., excellent), a Septic Tank Classification and Correction Plan (which identified a number of areas for improvement), and a Shoreline Classification Report (which showed that 87 percent of the shoreline was either in a natural state or under regeneration). On the basis of these studies, the APLH worked with officials from the Programme des lacs and with the Municipalities of Northfield and Lac Ste-Marie to address the recommendations of these studies.
This included more rigorous monitoring of septic systems and enhanced enforcement of municipal septic tank regulations. Starting in 1983, Bill Stratton worked with the two municipalities to provide annual updates of the Septic Tank Report, reflecting changes and upgrades, resulting in many improvements to existing systems and proper attention to the construction of new systems.
Also in 1983, the landmark SOMER report (Société multidisciplinaire d’études et de recherches de Montréal) was published. It was commissioned by the Quebec government departments of Energy and Resources, Recreation, Hunting and Fishing, and the Office of Planning and Development. The report rated the lake as oligotrophic (around 8 micrograms per litre of total phosphorus) but highlighted a conflict between cottage development and the capacity of Lake Heney to absorb the effects of human habitation. To this end, the report recommended the preservation of a large block of government-owned land (which was subsequently sold) and controlling development through stringent zoning. While the municipalities were consulted, the APLH was not, and only became aware of the report in 1996.
The APLH spearheaded the promotion of practices to reduce the pollution from cottages and grounds. From 1990 to 1992, they led annual projects to replant the shoreline with native shrubs and bushes furnished by FAPEL and the Programme des lacs. These shrubs were known for their effectiveness in absorbing some of the phosphorus in waste water before it made its way into the lake.
In July 1991, a permit for a small fish hatchery was issued to Gestion Serge Lafrenière, ostensibly for raising minnows to seed Lake Heney and other nearby lakes. Through Ministry of the Environment and Wildlife (MEF) permits and grants from the Ministry of Agriculture, Fisheries and Food (MAPAQ), the fish hatchery was expanded in the spring of 1993 into a fish farm of 28 large tanks with a production of 80 tons of trout per year. Mr. Lafrenière received a grant of $183,050 from MAPAQ.
By the summer of 1994, cottage owners noticed a marked decline in the clarity of the water and growth of algae in the bays and algae blooms on the lake bottom. Throughout the year, there were increasing communications and meetings with the Association and both Municipalities and the MEF citing concerns related to the decrease in the water quality. Also of concern was an agricultural ditch at the southeast corner of the lake and the expansion of the Atlas sawmill in the northeast corner.
In the same year, the APLH conducted its own water sampling program. This showed a high concentration of phosphorus in the effluents of the fish farm and a sawmill on the northeast side of the late and a high reading of suspended matter from the ditch. Around the same time, the MEF was coming around to the realization that the lake was particularly sensitive, in that its waters turn over only once every seven years and that the fish farm was likely a major contributor to phosphorus in the lake. In the summer of that year, the fish farm owner announced plans to expand the farm to 87 tanks (250 tons of fish a year).
Stakeholders Come Together but Do Not Always Agree
At the urging of the MEF, a meeting was held of all stakeholders on the lake in early January 1995. This resulted in the birth of the Comité de la Relance du lac Heney (the Relance Committee). It consisted of an elected president and secretary, two members from each of the two municipalities, two members from the APLH, plus an observer (Pierre Calvé, Jennifer Stewart and Donat Pharand), the owner of the fish farm, a representative from the MEF, the MRC and three outfitters on the lake (see Appendix A for the full list of members).
The Relance Committee agreed to sponsor a two-year study of the lake by Professor David Bird and Dr. Valérie Mesnage of the University of Québec à Montréal (UQAM). A public information session was held in mid-summer to explain the initiative. Henri Fournier, from the MEF, confirmed the need for a study and speculated that the major sources of phosphorus pollution were the fish farm and the cottages. He also stated that the only cost-effective way of rehabilitating the lake would be to reduce the phosphorus entering the lake from external sources.
Professors Bird and Mesnage submitted the first draft of the UQAM report in late 1995. The report identified the main sources of phosphorus pollution during the summer were the cottages (estimated at 300 kg annually and the fish farm (measured at 893 kg. annually). This excess of external phosphorus had created anoxic (lack of oxygen) conditions on the lake bottom, which in turn led to the release of 1300 kg. of phosphorus from the sediment. The impact was rapid enrichment of the lake, which rose to a total phosphorus count of over 20 micrograms per litre – taking Heney Lake into the eutrophication zone.
In February 1996, the co-presidents of the APLH, Jennifer Stewart and Pierre Calvé, wrote to the Quebec ministers of the MEF and MAPAQ, requesting that they wait for the final UQAM report before approving the request for expanding the fish farm to 87 tanks and 250 tons of fish per year. However, a month later, the MEF issued a certificate of authorization for the expansion citing a legal obligation to respond to the request for expansion before the final UQAM report. Gestion Serge Lafrenière received a grant of $325,000 from MAPAQ, with the condition that the company install a state-of-the-art treatment system and reduce phosphorus output to 400 kg a year by 2001.
At the same time, the MEF calculated the total phosphorus load capacity for the lake to be 500 kg per year. The Relance Committee passed a resolution that 400 kg be assigned to the fish farm leaving 100 kg for all other stakeholders. The APLH refused to agree until the final UQAM report was received. Consultants for the fish farm confirmed an annual release of 822 kg.
At the Annual General Meeting of the APLH on August 4, 1996, 115 members voted unanimously for the Quebec Government to close or relocate the fish farm due to the degradation of the lake and the inadequacy of the Relance Committee’s rehabilitation plan. They also signed a “no phosphate, no fertilizers pledge”, and agreed to other measures to limit the phosphorus emissions from cottages.
On September 1, 1996, Pierre Calvé wrote to the Minister of Natural Resources requesting a reconsideration of the proposed sale of 100 lots of government land on Baie de la Mine (the very land that the SOMER report recommended not be developed) to Mr. Serge Lafrenière. The Ministry denied this request on September 26, 1996, and Mr. Lafrenière proceeded to purchase the land.
On October 6, 1996, the Relance Committee approved the final UQAM report. The report states that the fish farm “is probably fatal for a lake like Heney”. Adding 500 kg of phosphorus per year “will increase the phosphorus concentration of the lake to 40 micrograms per litre. The lake will become under these circumstances one of the richest in Phosphorus in Quebec”.
The municipalities of Lac-Ste Marie and Northfield formally requested the ministries of Environment and Agriculture to reduce the fish farm’s output of phosphorus to zero and began a micro-zoning project to limit development around the lake, that resulted in more stringent regulations known as the contrôle intérimaire.
The Advocacy Campaign
As the UQAM study was unfolding, Jon Johnson, CEO of Government Policy Consultants (GPC) and his wife, Susan Brousseau, volunteered the services of GPC to guide the APLH Board in developing a campaign to unveil, and advocate against, the commercial interests that were destroying the lake. Rumour had it that the Quebec government had plans to encourage fish farming on a number of Quebec lakes and, at the very least, the Board wanted to make the consequences public.
Supported by GPC experts, the APLH struck a number of working groups (see Appendix B) and, from their research and analysis, developed a number of advocacy materials, including a chronology and a white paper entitled “The Destruction of Heney Lake: Commercialization that Does not Pay”. Notable Board contributors included Peter Fitt, who provided the scientific analysis, and Allan Darling, who conducted the economic research.
Armed with these materials, the co-presidents Pierre Calvé and Jennifer Stewart, then embarked on a series of visits in the fall of 1996 to Quebec City to bend the ears of Ministers and Deputies in MEF, MAPAQ and Municipal Affairs. They were accompanied by Marie-Paule Larouche, who, together with her husband, Carol Boilly, had in 1994 unwittingly purchased a camp from the Lafrenière family located next to the fish farm. In making the case to Quebec government officials, Marie-Paule described the beauty of the bay when they had first arrived and the rapid degradation due to the fish farm and the consequent impact on her livelihood. Jennifer and Pierre marshalled a vast amount of documentation to prove the case and oversaw the creation, with GPC support, of the various presentations, elevator cards and other material. Pierre, a professor and Dean at the University of Ottawa, was convincing in delivering the story.
Concurrently, the APLH Board waged a media campaign. The first major success was an article by well known journalist, Louis-Gilles Francoeur, in Le Devoir in November 1996, entitled: “L’aquaculture, une solution durable ou une nouvelle mégaporcherie?” Numerous articles followed culminating with an episode on the Fifth Estate in September 1997.
Resort to Legal Action
It was becoming clear, however, that advocacy alone was not going to stop the fish farm. At this point, the Association, on a recommendation from one of its Directors, Al O’Brien, had the good fortune to cross paths with Maître Michel Bélanger from the law firm of Lauzon-Bélanger in Montreal. Maître Bélanger took a keen interest in the situation and laid out a plan for a class action against the Procureur Général du Québec and Gestion Serge Lafrenière, which his firm would undertake for a share in any settlement. On June 15, 1997, the AGM endorsed launching this class action. As a first step, Maître Belanger advised the APLH on how to secure funding support from the Quebec Fond d’aide aux recours collectifs. The class action was filed on July 26, 1997, with Aileen Moskal-Shaw and Jennifer Stewart as co-plaintiffs. It sought compensation for the loss of property value due to the deterioration of the lake from the excessive pollution caused by the fish farm. 157 property owners pledged up to ½ percent of the value of their land for a legal action “war chest”.
In June 5, 1998, in a major step forward, the MEF revoked the fish farm’s operating permits. This did not, however, stop Mr. Lafrenière. He appealed, and the fish farm continued to operate.
Then on June 23, 1998, the class action was refused on the grounds that the members were known and could be contacted via municipal mailing lists, so they should file individually. Maitre Michel Bélanger immediately proceeded to appeal.
In the meantime, to more quickly be able to stop the disastrous effects of the fish farm, Pierre Calvé filed a request for an interim injunction on July 17, 1998, to stop the operation of the fish farm immediately. Since this type of request could only be made individually and could have had significant financial consequences, 165 APHL members pledged to share equal liability in any costs. On October 28, 1998, Judge Louis-Phillip Landry, Quebec Superior Court, issued the injunction, stating “c’est la première fois qu’une ordonnance de cette conséquence est obtenue par des citoyens.” Mr. Lafrenière appealed, but the appeal was denied on April 16, 1999.
The resulting decision revoked the fish farm’s expansion permit which allowed it to produce 250 tons of fish and 890 kg of phosphorus a year. It was, however, left with its 1993 permit, which authorized 80 tons of fish and set a phosphorus limit (based on Lafreniere’s assertion of the efficiency of his treatment system) of 130 kg of phosphorus output per year. Rather than continue under such stringent limits, Lafrenière negotiated a significant settlement – of $2,000,000 – with the MEF (according to their press release of June 1999), and closed and dismantled the fish farm. At the time of closure, the overall concentration of phosphorus in the lake had risen to 22-23 micrograms per litre. Knowing that significant funds would be needed to reverse the damage caused by the many years of the fish farm’s operation, the Lake Association and Maître Bélanger continued to move forward on the class action, now with Jennifer Stewart as sole plaintiff.
On September 14, 1999, the class action was finally authorized by the Court of Appeal in Montreal. On March 19, 2001, Maître Bélanger presented a series of petitions before Judge Johanne Trudel. Her judgment on April 3 provided the way forward for funds, won either through a court case or mediation, to be invested in a lake rehabilitation program. There was a provision for members of the class to be reimbursed for loss of property value, if the lake did not recover to an acceptable level of total phosphorus following the program. It is one of the notable achievements of the APLH’s campaign that all Heney Lake property owners agreed with the plan to invest all payments of damages in restoring the lake.
In August 2001, Jennifer was posted to Washington. Pierre became the Association’s sole negotiator for the lengthy mediation process that lasted from 2001 to 2004. The process began on August 28, 2001, when Assistant Chief Justice, the Honourable André Deslongchamps, ordered, at the request of all stakeholders in the case, a conference to find an amicable settlement to the class action. The subsequent mediation was first presided over by Judge Francois Roland, then by Judge Richard Nadeau, of the Superior Court of Quebec. Representing the APHL and negotiating with the representatives of the Quebec government and their Legal Counsel, Maître Michel Déom, were Pierre Calvé and Maître Michel Bélanger. Over the next four years, Pierre made innumerable trips to Montreal, sometimes twice a week, to attend meetings with Maître Bélanger and the mediation committee.
The negotiations were successful in reaching a protocol for an amicable settlement. On June 1, 2004, Judge Johanne Trudel of the Superior Court of Quebec, approved this settlement, which amounted to $4,940,000 to be used for the treatment, rehabilitation and protection of Heney Lake and its watershed. The funds were deposited in a Lake Heney Foundation set up for this purpose (see Appendix A). $1,740,000 were to be managed by the Association and serve to reimburse legal fees and repay the Fonds d’aide aux recours collectifs. The balance of the $3,200,000 was to be managed by a Comité paritaire, composed of representatives from the Association and the Quebec government (see Appendix A for the list of members). The Comité paritaire approved the parameters for a study for an effective treatment program for the lake, oversaw the study and the carrying out of the selected treatment.
The Association reserved the right to sue for loss of property values if the lake did not maintain an annual average of 15 (plus or minus 3) micrograms per litre of total phosphorus for a period of two years after implementing a rehabilitation program.
In the meantime, the other defendant in the class action, Gestion Serge Lafrenière, had declared bankruptcy. After the closure of the fish farm on Heney Lake, Mr. Lafreniere established a similar operation in Nova Scotia – Scotia Rainbow – for which he received both federal and provincial support and funding. According to an Ottawa Citizen article of June 4, 2000, by Paul McKay: “Scotia Rainbow went into receivership, owing almost $21 million to 100 creditors. Leading that list are six federal government agencies and two branches of the Nova Scotia government, which have committed more than $15 million in grants, loans and loan guarantees to Mr. Lafreniere’s venture.”
The Rehabilitation Program
Pending the final settlement, the APLH continued with follow-up studies on the lake. Professor Yves Prairie of UQAM took over from David Bird, and was then joined by the expert consultant for the government’s defence, Dr. Richard Carignan from the University of Montreal. Separate from the legal action, APLH member, Stephen Greenberg, CEO of Osgoode Properties, re-purchased the Baie de la Mine properties.
After the settlement, the Lake Heney Foundation invested $60,000 to engage an engineering firm in the summer of 2005 to do an inventory, inspection and classification of the septic tanks around the lake. The Comité paritaire, with Dr. Carignan’s support and guidance, began three years of scientific analysis to identify approaches and options for rehabilitating the lake. They fixed on an innovative, ground-breaking approach, never before attempted in a body of water the size of Heney Lake. In 2007, the Comité awarded a contract to Water and Science Earth Associates, which resulted in the deposit of 1,800 tons of iron chloride in the lake in November and December of that year. The objective was to re-establish the lake’s natural chemical balance and to reduce the concentration of phosphorus through a process of binding to the iron chloride. The cost of this project was around $3,000,000. For further details, refer to the article by Kevin Bell on the Heney Lake website and to the video of the treatment program at: https://mylacheney.ca/history/reports/
After the treatment, the concentration of phosphorus went down from 23 micrograms per litre (the reading just after the closure of the fish farm in 1999), to an average of 15 micrograms per litre, based on annual follow-up studies commissioned by the Association and Comité paritiaire.
Only time will tell if the treatment will succeed in repairing the damage caused by the fish farm. The situation remains a delicate balance that makes it even more important that all residents and cottage owners on Heney Lake continue to follow practices designed to reduce the phosphorus output from human habitation. Also important is continuing the close collaboration with the municipalities and Quebec government. To this end, a strong Lake Association that is respected by these levels of government and able to effectively advocate for the environmental interests is key. Hopefully, the lessons learned from the fish farm saga will be put to good use and serve to protect the health of Heney Lake for future generations.
Pierre Calvé and Jennifer Stewart, August 2018