Municipalities may have legal tools for acting on coastal protection
It is easy to agree that the coastline is a precious asset to everyone living in Nova Scotia. For some, the coast is a source of livelihood and economic opportunity; for others it offers recreation and aesthetic enjoyment.
However, the complex ecology of the coast, coupled with the diversity of laws that govern it, can lead to the assumption that coastal issues are confusing and beyond the reach of the average member of the public. This is far from the truth.
Everyone can play a role in protecting the coastline of Nova Scotia for its own sake and that of future generations.
Consultations are now underway to assist the provincial government to develop a strategy for the coast.
The process began with the release of the 2009 State of Nova Scotia’s Coast Report. Among other topics, the report highlights the many levels of government that are responsible for coastal management.
Currently, there are over 45 pieces of legislation at the international, federal, provincial and municipal levels that deal with the management of Nova Scotia’s coast.
Many sustainable initiatives stem from local action. Coastal protection is no exception. Municipalities can play a central role in coastal governance.
The Nova Scotia Municipal Government Act gives municipalities authority over land use. Despite this power, conflicts may arise between municipal land-use bylaws and provincial acts and regulations.
This potential conflict can be explored by looking at Nova Scotia beaches. The Beaches Act is provincial legislation that regulates activity on certain designated beaches.
However, with the permission of the minister of the environment, development such as the building of a house and other activities, including removal of material, may still occur on a designated beach.
Could a municipality step in and declare a conservation zone on a designated beach and improve the level of protection?
In 2001, the Supreme Court of Canada upheld the power of the municipality of Hudson, Que., to pass a bylaw banning cosmetic pesticides.
This marked the beginning of a wave of similar municipal bylaws which in Nova Scotia has now resulted in the passage of provincial legislation. Municipalities took the lead on pesticides in response to community concern for public health and the environment.
In the Hudson case, the supreme court recognized that when it comes to protecting the environment, municipalities are well placed to take precautionary measures to ensure a sustainable future.
Where there are serious, irreversible environmental threats, like the destruction of environmentally sensitive shorelines, municipalities may be able to step in to protect them.
Nova Scotia’s Municipal Government Act requires provincial departments that wish to carry out any development to consider the planning documents of the municipality. A municipality’s control over development is limited: a municipality cannot normally ban all development in an area.
However, a bylaw can prohibit development within a specified distance of a watercourse, which includes the ocean.
And if a proposed development is on unstable, marshy land or land subject to flooding, then a bylaw can absolutely prohibit development.
The Nova Scotia Environment Act also provides that a bylaw that imposes a restriction for the protection of the environment in excess of that required by the act is valid.
These provisions suggest that a municipal bylaw that takes strong protective measures for the environment and prohibits development on a protected beach is within municipal authority.
The policy tool provided to municipalities for land-use planning is called a Municipal Planning Strategy. The MPS is an excellent mechanism for municipalities to protect their coastal regions.
Municipalities with an MPS include the Region of Queens Municipality, Municipality of the County of Kings, Halifax Regional Municipality and Cape Breton Regional Municipality. Some of these have used their MPS to adopt principles around coastal protection.
Concerned Nova Scotians can be proactive in protecting their coast. Encouraging community leadership in sustainable coastal management by working with councillors and planning departments is one way of ensuring a healthy coast for the future.
East Coast Environmental Law Association will present a series of workshops that discuss this and other topics related to environmental law and the coast of Nova Scotia.
They will take place in Sydney on July 19, Halifax on July 22 and Liverpool on July 23. For information see www.ecelaw.ca or contact the ECELAW workshop coordinator at 902-494-8041 or workshop@ecelaw.ca
Cape Breton Post July 9 2010
BY DEBORAH CARVER AND ZEYNEP HUSREVOGLU