Who Is Responsible for Protecting the Coast?

The coast is, essentially, where the land meets the sea. Parts of the coast include a clear interaction between the land and the sea, such as beaches, coastal marshes, and rocky shores whereas other parts are less well-defined. Conceptually, the coast represents the area of interface and influence between terrestrial and marine environments. ^[1] Nova Scotia’s coastline has many different coastal ecosystems, with a complex natural environment hosting many vulnerable species and habitats. There are many species at risk along the coast that must be protected to maintain biodiversity. 

Ownership and control of the coast – and its many aspects – is divided between multiple levels of government, including federal, provincial, municipal, and Indigenous governments. You can find out more information in our Summary Series volume Who Owns the Coast?. 

Federal Government 

The federal government manages coastal areas from the ordinary low-water mark seaward to the 200 nautical mile limit of the Exclusive Economic Zone (the limit of Canada’s jurisdiction).

Section 91 of the Constitution Act, 1867 gives the federal government legal authority over aspects of the coast like navigation and shipping and seacoast and inland fisheries. Additionally, the federal government oversees federally owned properties, land designations under the Indian Act, fisheries, and marine navigation. If development impacts the aquatic and marine environments, federal jurisdiction may be triggered under the Fisheries Act, the Oceans Act, the Shipping Act, the Species at Risk Act, or other federal laws.

Provincial Government 

The provincial government manages coastal areas from the ordinary low water-mark landward.

Section 92 Constitution Act, 1867 gives provincial governments authority over aspects of the coast, including property rights, local works, and natural resources. There is currently no provincial legislation that protects the entirety of the Nova Scotian coast; instead, aspects of the coast are protected in a piecemeal way. For example, the Wilderness Areas Protection Act and Special Places Protection Act prohibit certain activities that may include development and construction near the coast. The Beaches Act protects beaches but only applies to beaches below the high-water mark and beaches above the high-water mark that are designated by the government through regulation.^[2] Designation as a “beach” under the Beaches Act does not guarantee that the land will not be further developed.

Indigenous Governance 

Indigenous peoples in Canada have their own legal traditions and laws. They also have rights under section 35 of the Constitution Act, 1982, which requires the federal, provincial, and territorial governments to consult with Indigenous peoples when government conduct could affect their Aboriginal or treaty rights adversely. In Nova Scotia, incorporating Mi’kmaw laws and Mi’kmaw ecological knowledge into the CPA regime can help to ensure that the Act serves its purposes of protecting Nova Scotia’s coasts and coastal communities. 

Municipal Government

Municipal governments do not have jurisdiction under the Constitution Act. Instead, provinces give authority to municipal governments by delegating constitutional powers that would otherwise belong to the provinces themselves. Under Nova Scotia’s Municipal Government Act, municipalities have limited jurisdiction over aspects of the coast, and they can exercise that jurisdiction through the creation of bylaws and land use planning strategies.^[3]

^[1] Dan Walmsley & Jay Walmsley, “Our Coast: Live. Work. Play. Protect” (2009) The 2009 State of Nova Scotia’s Coast Technical Report at 33 [State of the Coast Report], page 33. 

^[2] Beaches Act, RSNS 1989, c 32 [Beaches Act].

^[3] Municipal Government Act, SNS 1998, c 18 [MGA].

What Has Been Done to Protect the Coast In Nova Scotia?

The Government of Nova Scotia and various groups advocates have been seeking to mitigate industrial, historical, and climate-related impacts on the coast for decades, including through multiple—and failed— attempts to create policy or legislation to deal with coastal protection. The following is a timeline of attempts to create coastal protections in Nova Scotia and how the CPA became what it is today. 

1976: First province to introduce a Coastal Zone Management Strategy

An increased awareness of the relationships between land-based activities and oceans emerged in the 1970s.^[1] Nova Scotia was the first Canadian provinces to introduce a coastal zone management strategy in 1976 and had an executive director for coastal zone issues.^[2]

1993-94: Province launched “Coastal 2000”

The provincial government launched Coastal 2000, which was a provincial coastal planning process. However, legislation did not get the necessary political or public support to be pursued.

2004: Renewed efforts for an integrated coastal management strategy

To further communicate the importance of coastal protection, the Coastal Coalition of Nova Scotia conducted a workshop called Changing Tides: Towards an Integrated Coastal Management Strategy for Nova Scotia. The workshop highlighted Nova Scotia’s lack of coherent and integrated coastal zone management. Jurisdictional overlap, conflicting mandates of regulatory agencies, and a lack of public involvement were highlighted. The Coalition urged the Government of Nova Scotia to create legislative improvements to protect the coast, emphasizing the rapid loss of coastal habitats, erosion, and water quality, among other concerns. The workshop also made suggestions for improving municipal planning strategies and laws that impact coastal areas and residents. However, conflict remained about how to approach an integrated coastal zone management regime.^[3]

2006: Province launched the interdepartmental Provincial Oceans Network

Reconsidering the importance of coastal issues, the Government of Nova Scotia launched a coordinated initiative in 2006 under the direction of an interdepartmental Provincial Oceans Network (“the PON”). The PON was housed with the Nova Scotia Department of Fisheries and Aquaculture as a joint effort of many provincial departments and agencies that are responsible for coastal issues, and it served to: 

1)   Develop an integrated approach to coastal zone management in the province.

• Facilitate coordination on coastal and ocean management issues and initiatives within the provincial government.
• Provide advice and expertise in implementing the Coastal Management Framework and associated activities.^[4]

After significant work within the provincial government, the PON established the Coastal Management Framework. The framework’s goal was to ensure the sustainable development and conservation of Nova Scotia’s valuable coastal areas and resources. It focused largely on creating a unified approach to coastal management, to understand the current state of the coast, and to develop proper means of intervention.^[5]

2009-10:  Release of the “State of Nova Scotia’s Coasts” and further calls for action

The Government of Nova Scotia recognized the coast as a major public asset and sought to ensure that the coast received the attention and nurturing it needs to support the province’s plans for sustainable development. In 2009, Nova Scotia’s Department of Fisheries and Aquaculture prepared the State of Nova Scotia’s Coasts Technical Report. The report collected information about the coasts of Nova Scotia and identified the province’s most important coastal issues and information gaps. It categorized Nova Scotia’s coastal issues into 6 categories and made recommendations for improvements:

• Coastal development interrupts the natural connections between land and ocean with human infrastructure, causing damage to coastal ecosystems and creating potential problems of the permanence and stability of infrastructure on changing coastal environments. The report recommended reducing strip like developments on the coasts and including municipal planning strategies in coastal protection so that they are integrated in the future. The report also noted the importance of paying attention to privately owned properties and infrastructure on the coasts, both for the protection of the coasts and those properties. 
• Working waterfrontsare communities and organizations that require physical access to the coasts for ocean-dependant uses and business practices. These include Port Authority ports, local and regional ports, and small municipal craft harbours. These working waterfronts pose management and operational problems where the federal government has handed the day-to-day management to municipalities but maintained ownership. The effectiveness of these waterfronts has also been greatly affected by the province’s aging population and the rural-to-urban migration of residents. 
• Coastal accessconcerns the public’s ability to reach and view coasts and shorelines. That access had been changing through shifting land-use patterns and property ownership. The report suggested that if governments, institutions, or organizations were to purchase coastal land and dedicate those lands to coastal protection with different levels of public access, it would increase overall access to coasts and shorelines to the public. Increasing public access may also increase the protection of coasts in their most natural states because it is the natural state of a coast or shoreline that usually attracts the public. 
• Sea level rise and storm eventshave increased flooding and erosion on Nova Scotia’s coasts, and they will only become more frequent and severe as climate change progresses. Low coastal zones in the region will gradually be covered if these events continue in their current trajectory.Recommendations included establishing setback limits for coastal development to reduce the effects to infrastructure in storm surge events and prevent further erosion. 
• Coastal water qualityis important because there are threats to Nova Scotia’s water quality due to human activity on land, shorelines, and in the water. According to the report, researchers had not been able to determine the overall picture of the quality of the water in the province. 

In 2010, the PON released a “What We Heard” document that further highlighted the public’s concerns about coastal management strategies. Using the PON report and feedback from public consultations, the Government of Nova Scotia intended to develop a blueprint called the Sustainable Coastal Development Strategy. Once completed, the strategy was anticipated to act as the road map for addressing the coastal issues that mattered most to Nova Scotians. However, the intent never became fully realized, and no final strategy was ever produced.^[6]

2011: More efforts to create a coastal management framework

In 2011, the Government of Nova Scotia outlined a draft for the coastal strategy for the next decade by focusing on seven issues that are crucial to effective coastal management. Those issues were:

• coastal development;
• working waterfronts; 
• public coastal access; 
• sea level rise & storm events; 
• coastal ecosystems and habitats;
• coastal water quality; and, 
• governance.^[7]

The public anticipated that a lead body for coastal management would be established within the Government of Nova Scotia. As it was envisioned, this body would be responsible for facilitating integrated approaches to coastal management across the provincial government and with other levels of government and coastal stakeholders. East Coast Environmental Law was part of the Coastal Governance Working Group in 2011 tasked with developing an integrative coastal strategy. An important aspect was partnering with municipalities to establish planning strategies and land-use bylaws in coastal areas so that municipal land-use plans and bylaws would consider the coastal environment. However, these efforts, once again, did not materialize.^[8]

 2017-2019: The promise of a Coastal Protection Act

For many years, Nova Scotians had been calling for legislation dealing with coastal protection. Action on climate change and energy was a key component of the 2017 election platform of the Liberal Party of Nova Scotia, led by then-Premier Stephen McNeil. The party made a promise to pass coastal protection legislation by 2019. ^[9]

In June 2018, Nova Scotia’s Department of Environment released a consultation document for a proposed Coastal Protection Act. Three key components of effective coastal protection legislation were identified: 

• the creation of a coastal protection zone; 
• the regulation of specific activities and practices within that zone; and, 
• the creation of administration, monitoring, and compliance provisions.^[10]

The public was given 30 days to submit their comments and concerns via an online survey or through mailed-in responses during the summer of 2018; over 1,300 replies were received. Ministry representatives also held meetings with stakeholders like seafood companies, land developers, and community associations. The province separately consulted with municipalities, planners, the real estate industry, and Mi’kmaq.^[11]

On March 12, 2019, the government introduced Bill 106—a proposed Coastal Protection Act for Nova Scotia—in the provincial legislature. The Bill 106 was passed in April, 2019, and the Coastal Protection Act become the first legislation in Canada with the objective of coastal protection. 

As of August 2021, the Coastal Protection Act is still not in force (meaning its rules do not yet apply in Nova Scotia) because the Nova Scotia Environment and Climate Change has been developing regulations that will provide the details that are necessary to make the Act work.

^[1] Gloria Chao “The Emergence of Integrated Coastal and Ocean Management in Canada's Oceans Act: Challenges of Integrating Fragmented Resource Sectors in Georges Bank, Nova Scotia and Hectate Strait” (1999) [unpublished] Dal J Leg Stud at 5 [Chao], page 4. 

^[2] Dan Walmsley & Jay Walmsley, “Our Coast: Live. Work. Play. Protect” (2009) The 2009 State of Nova Scotia’s Coast Technical Report at 33 [State of the Coast Report], page 34. 

^[3] Nicole Hynes & Jennifer Graham, “Coastal Zone Planning in Nova Scotia,” (2005) Ecology Action Centre, online (pdf):  <https://ecologyaction.ca/files/images-documents/file/CZbackgrounder05.pdf> [Hynes]. Note: The Changing Tides – Taking Action on Coastal Management Plan for Nova Scotia Workshop was held November 5-7th, 2004 at Cornwallis Park, Annapolis Basin, NS. 

^[4] State of the Coast Report, page 34. 

^[5] Ibid. 

^[6] Ibid, page 35.

^[7] Ibid. 

^[8] Ibid, page 21.

^[9] Piotr Rak, “How Can the Province of Nova Scotia Protect Its Coast?” (14 March 2019) East Coast Environmental Law, online: < https://www.ecelaw.ca/blog/how-can-the-province-of-nova-scotia-protect-its-coast.html> ] [Rak]. 

^[10] Rak.

^[11] Ibid.

How Was East Coast Environmental Law Involved in the Development of the CPA?

East Coast Environmental Law has been advocating for legislation to protect Nova Scotia’s coastal areas for many years. We engaged with other environmental organizations, communities, and the Department of Environment on early concepts for coastal protection legislation. We also provided oral and written submissions to the Nova Scotia Legislative Assembly’s Law Amendments Committee on Bill-106.

Our Multijurisdictional Legislative Review

As part of its engagement on the creation of Bill-106, East Coast Environmental Law produced a report that compared how different jurisdictions have protected their coasts: for more information, see Protecting the Coast: A Multi-Jurisdictional Legislative Review. All jurisdictions outside of Canada that we surveyed have legislation that creates a coastal zone or zones, which are normally measured from either the high-water mark or low-water mark. Within these coastal zones, various activities are regulated, and some jurisdictions also provide protections for coastal access. 

We also concluded that many jurisdictions outside of Canada use “coastal management regimes” that use an integrated management approach, which are guided by principles of sustainable management and best available science, and some have legislation and policies that offer protections to vulnerable and sensitive coastal species and habitats. 

In many jurisdictions, coastal management focuses on three kinds of issues: 

• regulating development and human activity (both to limit economic and human health hazards from the coastal environment and to protect the environment from those activities);
• identifying and mapping coastal floodplains and areas that vulnerable to sea-level rise and erosion; and, 
• protecting and enhancing public access to the coast and its resources.

Community Engagement on the Proposed Coastal Protection Act

When the Nova Scotia Department of Environment issued its tentative plan for the CPA in 2019, East Coast Environmental Law collaborated with the Ecology Action Centre to host a series of community engagement sessions in Antigonish, Baddeck, St. Margaret’s Bay, Shelburne, and Wolfville. The community sessions were an opportunity to provide members of the public with information about the proposed Coastal Protection Act, and to gather ideas and feedback about the coastal issues that people were concerned about. 

During these community sessions, participants expressed various concerns about the implementation of a CPA, including the need to regulate against inappropriate development along the coastline, the need to recognize property rights of current landowners, the need to protect coastal ecosystems and human development from coastal erosion and flooding, the desire to reduce the impacts of open-net pet aquaculture, the need to protect marine habitats, and the need to recognize and respect Indigenous knowledge and rights. 

Advocacy for Bill-106

Once Bill-106 was introduced, East Coast Environmental Law provided written and oral submissions to the Law Amendments Committee about the proposed law before it was passed largely unchanged. 

What Is the Coastal Protection Act (“CPA”) and How Does It Work?

The Coastal Protection Act (the “CPA”) has two purposes: to protect the province’s coast and ecosystems by preventing development that may damage the natural and dynamic nature of the coast, and to protect new developments from coastal threats such as sea-level rise, coastal flooding, storm surges, and coastal erosion.^[1]

The CPA is based on the following principles:  

1. portions of the Province's coast are dynamic and naturally migrate landward and seaward as a result of the interaction of natural forces such as tides, winds, currents and wave action with varying geological conditions;  
2. preservation of the dynamic nature of the coast is important in order to protect and allow for the natural adaptation of coastal ecosystems that provide fish, wildlife and plant habitat and perform important ecological functions that Nova Scotians value;  
3. human-made structures designed to delay or obstruct the natural migration and shifting of coastal features may accelerate the effects of coastal erosion and may accelerate these effects on adjacent properties that do not contain similar structures;  
4. coastal features such as beaches, dune systems, barrier beaches, coastal lagoons, barachois ponds, coastal wetlands and salt marshes provide valuable habitat and provide other valuable ecological functions and services important to the health and well-being of Nova Scotians;  
5. sea-level rise, coastal flooding, storm surge and coastal erosion pose significant threats to the safety of future development in coastal areas;  
6. there is a link between economic and environmental issues and a recognition that long-term economic prosperity depends upon sound environmental management and that effective environmental protection depends upon a strong economy; and 
7. risk-informed decisions regarding development in coastal areas are an important part of climate change adaptation given the inevitability of relative sea-level rise, coastal flooding, storm surge and coastal erosion and their related impacts on the Province.^[2]

These principles should help to guide the interpretation of the CPA and any regulations created under it. They are also important because they highlight the importance and unique challenges of protecting the province’s coast. 

The fundamental function of the Coastal Protection Act is to create a Coastal Protection Zone (“the CPZ”). This is where the CPA and its regulations will apply. 

The Coastal Protection Zone

The Coastal Protection Zone is a zone that goes around Nova Scotia’s entire coast. In the CPZ, there are restrictions, limits and even prohibitions on development and other activities, in the form of mandatory building “setbacks”. There will be a horizontal building setback and a horizontal building setback (also called the minimum building elevation). The building setbacks will apply to private and public development. 

The CPZ will not include federal Crown Lands such as First Nation reserve lands, lands used for national defence, marine terminals, and lands and structures used for transportation and other infrastructure.^[3]

The Role of Designated Professionals

 All development within the CPZ that requires a building permit or development agreement must be certified by a designated professional (“DP”) to ensure that the proposed development and its location comply with the Act and the regulations.^[4] The person wishing to build will need to hire a designated professional, who will come to the specific site and determine the appropriate setbacks. They will a designated professional’s report that certifies that a proposed development and its location in the CPZ are in compliance with the Act.  

Regulations made under the CPA will set out who is qualified to be a designated professional. They will have specific credentials and likely liability insurance that makes them qualified to assess properties and areas under the CPA and its regulations. 

The Role of Municipalities

Under the CPA, municipalities will be responsible for ensuring that building permits and development agreements comply with the CPA and its regulations. They will do this by verifying all reports from designated professionals. Municipalities cannot issue a building permit or development agreement for any development or modifications to existing building that is inside the CPZ, unless they have certified by a designated professional to be in compliance with the Act and its regulations.

Exceptions under the CPA

Some developments are exempted from the building setbacks in the CPZ. 

Building or modifying a structure in the CPZ for commercial or industrial purposes is permitted if the structure includes direct access to the coast on the seaward side of the ordinary high-water mark, and that access is “essential” for commercial or industrial operation (the Act does not define what is “essential”). 

The Act also does not prevent commercial fishing, aquaculture, harvesting, or processing that are done legally under other provincial or federal law.^[5]

Developments that are exempted under the CPA must still be consistent, whenever possible, with the purpose and principles of the CPA.^[6]

Protected Coastal Ecosystems

The CPA offers some protections for coastal ecosystems. 

The CPA prohibits the alteration of wetlands in the CPZ unless the alteration is done in compliance with the Act and its regulations. 

Activities that are related to conserving, preserving, restoring, or reclaiming beaches, salt marshes, coastal wetlands, and fish, wildlife, and plant habitat in the CPZ—as authorized under the Beaches Act or the Environment Act—must be done in ways that are consistent with the purpose and principles of the Act and its regulations.^[7]

^[1] Coastal Protection Act, SNS 2019, c 3 [CPA], section 2. 

^[2] Ibid, section 7. 

^[3] Ibid, section 8(2)(a).

^[4] Ibid, section 12(1). 

^[5] Ibid, section 17.

^[6] Ibid, section15(1)(b).

^[7] Ibid, section 22. 

What Are East Coast Environmental Law’s Concerns With the CPA?

East Coast Environmental Law raised various concerns about the proposed CPA before it became law. In general, the Act takes a narrow approach to protecting the coast by focusing on limiting and regulating human development and providing protections for coastal ecosystems. The CPA is largely meant to provide another layer of coastal protection and to work in conjunction with existing environmental laws. It was not meant to transform or consolidate coastal protection into one law. While East Coast Environmental Law believes more can and should be done to protect the province’s coasts, the CPA provides some useful mechanisms to enhance existing legal protection.  

Purpose and Principles

Overall, the purpose and principles sections are valuable because they provide clarity on the CPA’s goals and set out the vision for the Act. These principles are featured near the beginning of the Act. The protections provided by the Coastal Protection Acttake priority over other laws where they conflict unless other the laws provide greater environmental protection.^[1]

Exemptions under the CPA

East Coast Environmental Law has concerns about the exemptions in the CPA that would allow some developments in the Coastal Protection Zone to ignore the building setback requirements. While some exemptions are specifically set out, the Act also allows additional lands to be exempted in regulations.^[2]

One type of development that is exempted under the CPA, and which will not require building setbacks, is any commercial or industrial structure that requires direct access to the seaward side of the ordinary high-water mark. This exemption is problematic because it is not clear how the exemption will be operationalized. There is no list or mechanism in the Act that can be used to determine whether a structure requires direct access to the seaward side of the ordinary high-water mark. East Coast Environmental Law called for a provision to be added to the CPA, which would require that a designated professional must certify that a commercial or industrial structures requires direct access to coastal waters. 

Other exemptions under the CPA – public infrastructure, commercial fishery, aquaculture or harvesting operations, marine renewable energy, agricultural marshlands, structures to protect physical integrity or public access to CPZ on certain protection lands, and cemeteries—further limit the scope of the Act. 

It is a requirement under the Act that developments that are exempted must be “consistent, wherever possible, with the purpose and principles of this Act”. However, the Act is also not clear about what “whenever possible” means, which will make it difficult to enforce. For example, under the current wording of the Act, the costs associated with modifying structures could be used as justification for a development to avoid being consistent with the purposes and principles of the Act. 

^[1] Coastal Protection Act, SNS 2019, c 3 [CPA], section 4. 

^[2] Ibid, section 8(2)(b).

What Are the Proposed Regulations under the CPA and What Do They Do?

Regulations under the CPA will provide the details about how the Act will work. Under the CPA, the Minister may make regulations about standards that must be followed when constructing, modifying, repairing and maintaining structures, and carrying out permitted activities in the Coastal Protection Zone.”^[1] The Governor in Council may make regulations for a number of other things, including setting out the boundaries of the CPZ, creating additional exemptions, and setting the qualifications for designated professionals.^[2]

The currently proposed regulations will provide clarification about how the CPA will work. The key things the proposed regulations will do is set out the boundaries of the Coastal Protection Zone, provide criteria for building setbacks, and set out requirements and qualifications for designated professionals. 

The Boundaries of the Coastal Protection Zone

Under the proposed regulations, the CPZ will have two parts: 

The seaward side of the high-water mark: the first part of the CPZ will be measured from the high-water mark out to the limit of the province’s jurisdiction in the ocean. Within this area of the CPZ, the regulations will apply to wharfs, jetties, seawalls, groynes, infilling, shoreline armoring, and similar structures, and it will be administered by Department of Natural Resources and Renewables in areas where the Crown Lands Act and Beaches Act apply.

The inland side of the high-water mark: the second part of the CPZ will be measured from the high-water mark in a straight horizontal line to a specified distance inland. The proposed distance of this part of the CPZ is currently in the range of 80-100 meters.^[3] This horizontal line will not follow the contour of the land.

Under the proposed regulations, the CPZ will cover islands, barrier beaches, and the coastal parts of estuaries.^[4]

Modifications of the CPZ Boundaries

The Department of Environment and Climate Change has identified two kinds of naturally occurring shorelines that will modify the boundaries of the CPZ: barrier beaches, which are defined in the proposed regulations as “typically thin beaches that separate ocean waters from ponds or lakes;”^[5] and estuaries, which are defined in the CPA as “a watercourse that meets a body of salt water, where the water is a mixture of salt and fresh water”.^[6]

In cases of barrier beaches, where a pond or lake behind a barrier beach is within the CPZ, the inland boundary of the CPZ would extend farther than normal. The barrier beach boundary of the CPZ would be a set distance to the nearest point from the ordinary high-water mark (on the ocean side of the barrier beach). The boundary would be no closer than another set distance from the ordinary high-water mark of the pond or lake.^[7]

In cases of estuaries, two methods for determining the modified boundary of the CPZ have been proposed: the CPZ will end either when the estuary has narrowed to a specific width or reaches a specified distance inland, or the CPZ will end where the inland portion of the estuary meets an area where an existing municipal land-use bylaw has vertical setbacks to address sea level rise, flooding plans for an 80 year horizon, and other restrictions that are consistent with the Statement of Provincial Interest on Flooding.^[8]

Construction Setbacks in the CPZ

The regulations will create a vertical and horizontal setback that will apply to all development within the CPZ and be administered through the municipal building permitting process.

A minimum building elevation will be determined and set out in regulations. It will set the minimum height of the ground upon which a structure can be built or modified. The Department of Environment and Climate Change will divide the province’s coast into regions and set out the appropriate vertical setback in each region.^[9]

A horizontal setback will be calculated on a case-by-case basis, for each development or site, by a designated professional. This is the horizontal distance from the coast at which a structure can be built or modified. 

In other words, no development that requires a building permit or development agreement can take place above the high-water mark without adhering to the setbacks, unless it meets one of the exemptions. 

The Role of Designated Professionals 

Landowners wishing to get a building permit within the CPZ will need to hire a designated professional to determine the appropriate horizontal setback. The designated professional must use an assessment methodology designed by the Department of Environment and Climate Change. The property owner will then submit the report as part of their permit application to the municipality.^[10]

The proposed regulations will set out the qualifications and responsibilities of designated professionals. These responsibilities include certifying that a) they are qualified, b) that the property was assessed using the risk assessment methodology, and c) that the resulting horizontal setback was established in accordance with the regulations.^[11]

When there are varied property conditions, the designated professional must: conduct multiple assessments to determine horizontal setback for each area; limit their report to an area within the property lot and provide a diagram indicating the area in which the specific horizontal setback applies; or, determine the most erosion prone area, conduct an assessment, and certify a setback for the entire property.^[12]

 The Role of Municipalities 

Municipalities will play a central role in the administration of the proposed regulations made under the CPA. They will be responsible for ensuring that building permits comply with the law by verifying designated professional reports. A municipality can accept a report that is signed by a qualified DP, even if the report was issued to a previous landowner. If a landowner provides reports by different DPs for the same proposed building location, the municipality may accept the one chosen by the landowner. ^[13]

^[1] Coastal Protection Act, SNS 2019, c 3 [CPA], section 27.

^[2] Ibid, section 28.

^[3] Province of Nova Scotia, Department of Environment and Climate Change, Part 2: A Detailed Guide to Proposed Coastal Protection Act Regulations (July 2021) online: < https://novascotia.ca/coast/docs/part-2-detailed-guide-to-proposed-Coastal-Protection-Act-Regulations.pdf> [Proposed Regulations], page 3.

^[4] Ibid. 

^[5] Proposed Regulations, page 4.

^[6] CPA, section 3(g). 

^[7] Proposed Regulations, page 4. 

^[8] Ibid, pages 4-5.

^[9] Ibid, page 3. 

^[10] Ibid, page16. 

^[11] Ibid, page14.

^[12] Ibid. 

^[13] Ibid, page 9.

What Are East Coast Environmental Law’s Concerns with the Proposed Regulations?

East Coast Environment Law provided a submission to the Department of Environment and Climate Change on the proposed regulations. 

We are concerned that the regulations further narrow the scope of the Act by creating additional exemptions, which will result in more developments not being required to adhere to the minimum building setbacks.  The reliance on the municipal building permit and development agreement process is problematic because there may be inconsistent application across the province. There will need to be transparency with respect to when a property has a building permit or development agreement in the CPZ, and what the minimum building setbacks are.   

There will need to be a clear process for determining the high-water mark because it is what the boundaries of the Coastal Protection Zone are measured from. This is important for consistent application of the Act and its regulations, and to ensure effective monitoring, compliance, and enforcement. 

East Coast Environmental Law is also concerned that the proposed regulations do not currently apply to septic systems, or to infilling or construction of shoreline stabilization structures above the high-water mark. This is a missed opportunity to address activity and human development that can have highly adverse impacts on coastal ecosystems and negatively affect the shifting and dynamic nature of the coast. 

The Minimum Building Setbacks Need to Apply Everywhere in the CPZ

The minimum vertical and horizontal building setbacks will only apply to development that is required to go through the municipal building permitting process. As such, any development or construction that does not require a building permit or development agreement will not have to adhere to the setbacks. 

East Coast Environmental Law is concerned because this will narrow the scope of protection under the CPA because there are many kinds of construction or development that do not require municipal building permits, including on-site sewage systems, golf courses, and playgrounds. 

We are also concerned by the fact that the seaward side of the CPZ only applies to Crown land and beaches. This means that it will not apply to privately owned water lots or parts that are located below the high-water mark.

Building Permits and Development Agreements in the CPZ Should be Available to the Public

The protections for coastal ecosystems and for developments along the coast – in the CPZ – that are set out in the CPA and its regulations are based on the minimum building setbacks. If the setbacks are ignored or development is not compliant with the setbacks, the Act and its regulations will fail.

In order to ensure that development is compliant with the Act and its regulations, there needs to be accountability and transparency to the public. This means that building permit and development agreement applications, including designated professional reports, should be available to the public. 

There Needs to Be a Clear Process to Determine the High-water Mark 

The regulations set out the boundaries of the CPZ. Because the CPZ is almost exclusively dependent on the location of the high-water mark, it is critical that the high-water mark be defined effectively in the regulations or that the regulations include an accurate and consistent method of determining the locations of the high-water mark.

East Coast Environmental Law suggests that the high-water mark be marked by a designated professional as part of their site-specific property assessment. We also recommend that a determination of the high-water mark should account for erosion (the gradual washing away of land along the shoreline) and avulsion (sudden change to shoreline caused by natural forces, usually by a storm event). 

The Role and Power of Municipalities Should Be More Explicit

East Coast Environmental Law is concerned that the regulations are unclear about powers are available to municipalities to remedy noncompliance with the Act and its regulations. East Coast Environmental Law suggest that the regulations provide clear powers to municipalities, for instance, by requiring non-compliant structures to be relocated and the land rehabilitated, at the landowner’s expense.

The Modifications for Developed Downtown Waterfronts Should

The proposed regulations will create modified requirements for developed downtown waterfronts, which may be defined as: developed downtown waterfront areas as dominated by mixed-use structures with a public amenity or multi- unit residential component where there are no gaps of greater than 75 meters between existing mixed-use structures, or where the area was zoned for commercial, mixed use or equivalent prior to the Act coming into effect. ^[1]

Within a developed downtown waterfront, building permits or development agreements for construction of commercial or mixed-use or food-service or similar public amenities in the CPZ would be exempted from the site-specific horizontal setback and designated professional report requirements (the minimum elevation would still apply). East Coast Environmental Law disagrees with this approach. The regulations should be applied to developed downtown waterfronts to protect coastal ecosystems.

^[1] Province of Nova Scotia, Department of Environment and Climate Change, Part 2: A Detailed Guide to Proposed Coastal Protection Act Regulations (July 2021) online: < https://novascotia.ca/coast/docs/part-2-detailed-guide-to-proposed-Coastal-Protection-Act-Regulations.pdf>, page 7.