March 14, 2019
Many jurisdictions are trying to enact new laws to protect their coastlines from various pressures, such as offshore oil drilling and climate change. Recent examples include the Arctic Cultural and Coastal Plain Protection Act and the Atlantic Coastal Economies Protection Act in the United States. Both of these statutes are limited to protecting marine habitats along the American coast by prohibiting specific activities associated with offshore oil and gas drilling. They are not examples of comprehensive coastal protection legislation that would indicate the range of activities permitted in a demarcated zone along a coastline. The provincial government of Nova Scotia has recently set out to create such a regime through a proposed Coastal Protection Act (CPA).
Who Owns the Coast?
In Canada, various governmental authorities have an interest in working together to manage the country’s vast coastlines. Under the Constitution Act, 1867, section 91 grants the federal Parliament legal authority over navigation, shipping, and seacoast and inland fisheries. Section 92 outlines the authority of provincial legislatures to create laws concerning property rights, local works, non-renewable natural resources, and electrical energy. In addition, section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. This obliges the federal and provincial governments to consult Indigenous communities when the Crown contemplates action that may adversely affect their Aboriginal or treaty rights. The use of traditional Indigenous knowledge and custom will be integral to the success of creating a new CPA for Nova Scotia.
There is a wide array of federal laws that influence coastal protection, such as: the Fisheries Act, the Navigation Protections Act, the Canada National Parks Act, the Canada Marine Act, and the Fishing and Recreational Harbours Act. As a specific example, the federal Oceans Act defines Canada’s various Maritime Zones and integrated Oceans Management Strategy with its provinces. It also establishes federal authority over coastal areas from the ordinary low watermark seaward to the 200 nautical mile limit of the Exclusive Economic Zone (EEZ). The EEZ is a sea zone prescribed by the United Nations Convention on the Law of the Sea, over which a nation state has special rights regarding the exploration and use of marine resources.
Canadian provinces have the authority to manage everything landward from the ordinary low water mark except privately owned water lots such as private wharves. Thus, while there is no comprehensive coastal protection legislation in Nova Scotia, there are several provincial laws that address various concerns. The Beaches Act provides specific protections for ninety-two designated beaches along the coast of Nova Scotia. There is also the Environment Act, which promotes the sustainable development of water resources, and the Wilderness Areas Protection Act and Special Places Protection Act, which both prohibit certain activities near the coast. Finally, municipalities are granted power over municipal land-use planning authority by the province through the Municipal Government Act.
A Promise by the Government
Action on climate change and energy was a key component of the 2017 election platform of the current Nova Scotia government, led by Premier Stephen McNeil. As part of its official plan in this policy area, the government promised to pass legislation for coastal protection. For many years, Nova Scotians have been calling for a CPA because over 70% of the province’s population live in coastal communities along 13,300 kilometres of coastline.
What about "the People”?
In June 2018, Nova Scotia’s Department of Environment released a consultation document regarding a proposed CPA. It gave the public 30 days to complete an online survey (a paper copy was also available). In addition, Ministry representative John Somers led several meetings with stakeholders, such as seafood companies, land developers, and community associations. He discussed three key components of coastal protection legislation: the definition of a coastal protection zone; the regulation of specific activities and practices within that zone; and the creation of administration, monitoring, and compliance provisions.
Local environmental non-governmental organizations have also been playing an integral role in the creation of a CPA. The Ecology Action Centre (EAC) has been advocating for legislation in the area for many years. The East Coast Environmental Law Association has released several reports on coastline protection, including a recent multi-jurisdictional legislative review. This past fall, the EAC’s Nancy Anningson and East Coast Environmental Law’s Mike Kofahl gathered public input on the proposed legislation in a series of community meetings in the coastal towns of Antigonish, Baddeck, Shelburne, and Wolfville.
Residents of these towns and their surrounding communities expressed various concerns surrounding the implementation of a CPA. Some of the major ones included inappropriate development along the coastline, property values and assessments for insurance purposes, property rights of current landowners, coastal erosion and flooding, the impact of aquaculture, the destruction of marine habitats, and Indigenous rights.
The government of Nova Scotia’s legal authority, electoral mandate, and public consultation process in collaboration with environmental groups has created the opportunity to introduce coastal protection legislation. On March 12, 2019, the government introduced Bill 106 in the provincial legislature, calling for the enactment of a Coastal Protection Act. While this Bill goes through various stages in the process of becoming law, one hopes that the government will consult the public in making any necessary amendments in order to create a comprehensive and effective piece of legislation that protects Nova Scotia’s coastline.
JD Candidate and East Coast Environmental Law Placement Student through the Osgoode Environmental Justice and Sustainability Clinical Program