As many Pointe-Claire residents already know, Cadillac Fairview has been in court for the past three years trying to get Pointe-Claire to lift its development freeze on the Fairview mall property (Mu1, in zoning parlance) and adjacent John Abbott lot, informally known as Fairview Forest (Mu2) since 2019.

The company says it wants the freeze lifted so it can work toward a negotiated agreement with the city.

At the same time, Cadillac Fairview is trying to get the Montreal Metropolitan Community (MMC) to lift its own development freeze, which is different from Pointe-Claire’s, in that it applies only to Mu2.

Where the case against Pointe-Claire is concerned, Cadillac Fairview says, among other things, that the city hasn’t done what it said it was going to do – hold public consultations on development in those areas affected by the freeze, including Mu1 and Mu2. The company contends that freeze – introduced as part of an interim-control by-law passed in early 2022 – is being used instead to indefinitely stall to find “partners” to help Pointe-Claire buy Mu2. But that’s ultra vires, or beyond the powers, of what Pointe-Claire can do under such a by-law, says the company.

It’s true that Pointe-Claire has failed to hold meaningful consultations on development. A plan with a timeline to hold 10 consultations in 2023 and 2024 focused instead on general urban planning concepts. It fell apart in the fall of 2023, after the fourth consultation. There has been only one consultation since then, centred around what to do with Saint-Jean Blvd. Only late last year did council finally get around to proposing something more specific about Mu1 and Mu2. But Mayor Tim Thomas and council have been unable to agree on the process.

Cadillac Fairview’s case against the MMC is different. The MMC introduced its own freeze, but only on Mu2, in its own interim-control by-law passed in early 2022. At first, Mu2 was not included in the early drafts of the by-law as one of several “natural environments of interest” that the MMC considered worthy of protection from development. It was only included at the last minute, just before the by-law was passed, at the request of Thomas and the Save Fairview Forest leaders.

Of course, this raises a good question: Why wasn’t the so-called Fairview Forest on the original MMC list? What criteria did the MMC, its biologists, and outside consultants use to create that list? What studies were done?

Cadillac Fairview has been trying to find that out. It asked the MMC to provide it with the pertinent studies, briefing notes, and email exchanges. But the MMC has withheld some key information, citing “le secret professionnel.” As well, the MMC has refused to produce any of its communications about Mu2 that have occurred subsequent to the adoption of its by-law. That includes any email exchanges it may have had with higher levels of government, including the provincial environment department.

T he MMC did share with Cadillac Fairview, however, maps of Mu2 that had been sent to it by Pointe-Claire in support of the request to include Mu2 in the MMC freeze. Those maps show that almost all of the old-growth, mixed-species forest of high ecological value is situated in the western half of Mu2, while the eastern half, parts of which used to be a municipal snow dump, is depicted as mostly fallow land or young tree regrowth of lesser ecological value. However, the eastern half is shown to be where the DeKay’s brown snake, said to be “at risk,” is concentrated. In fact, the snake, while classified in Quebec as “susceptible to being designated as vulnerable or threatened,” as opposed to actually “vulnerable” or “threatened,” is abundant in Ontario, Vermont, and New York, and one of the most common urban snakes in eastern North America and the Mexican Caribbean coast. Montreal appears to be the cold-blooded snake’s most northern habitat.

Here’s where things stand now in the court case against the MMC: Cadillac Fairview wants the Quebec Superior Court to order Christine Boyer, a senior MMC research advisor in early 2022, to testify about how the original list was put together and why Mu2 was not on it. Last month, the court agreed to hear arguments from the company and the MMC as to why Boyer, should, or should not, be compelled to testify. The court has set a date of May 1 for a 90-minute hearing.

The government of Quebec, meanwhile, has been paying very close attention to what has been going on in court.

In the fall of 2022, just months after Pointe-Claire and the MMC passed their interim-control by-laws, the Ministry of Environment issued a certificate of authorization to Cadillac Fairview, giving it the environmental green light to build everywhere on Mu2 except for two large patches of wetlands comprising half of the western half of Mu2. (As for the height of buildings, etc., that would be up to Pointe-Claire to approve.)

And in November of 2023, the provincial attorney general filed notice that it plans to intervene in the court proceedings under Section 79 of the Code of Civil Procedure (CCP), in order to defend “the public interest.” Under this section of the CCP, the government has the power to appeal any ruling of the court, even though it is not a party to the proceedings.

So where is “the public interest” in all this?

Preservation of greenspace and biodiversity is certainly in the public interest. But here some context is important. The West Island is already a leader in this regard. It is home to the largest urban nature park in Canada, the so-called Grand parc de l’Ouest, created in 2019 through the public purchase of various parcels of land that linked up already-protected greenspaces running from Pierrefonds to Sainte-Anne-de-Bellevue. Here in Pointe-Claire, we already have two forests, Terra Cotta and Ponner Woods. As a region, the West Island is very close, if not already meeting, the 30 per cent target for protection of natural spaces by 2030 set by the United Nations COP15 conference in 2022.

But there are other issues that weigh in the balance in defining “the public interest.” There’s the housing crisis, the fight against off-island Montreal urban sprawl, and climate change. Bill McKibben, one of the most respected environmentalists in the US, told CBC radio on August 13, 2023, that the single most important thing that car-dependent suburbs of major North American cities can do to fight climate change is support meaningful transit-oriented development along clean-energy transit lines. That’s what the REM is supposed to do. That’s why suburbs near REM stations are building condos.

And then, of course, there are financial considerations.

The government of Quebec has guaranteed the owner and operator of the REM, the Caisse de dépôt et placement du Québec, an 8 per cent operating profit for the next 99 years, with the possibility of another 99-year extension. Municipalities served by the REM would surely be asked to contribute to any potential future profit shortfall. Pointe-Claire, with two of the four West Island REM stations, might end up having to shoulder a disproportionate share.

David Johnston is a resident of District 1 (Cedar/Le Village). He worked for 33 years at the Montreal Gazette, concluding in 2014 as the editorial page editor.