September 12, 2022

Introduction

As a placement student with East Coast Environmental Law this summer, I conducted legal research and analysis on legal and policy issues related to the protection of coastal environmental in the Atlantic region. As part of my work, I looked at the issue of infilling of private water lots in coastal areas.  

Infilling of private water lots in the Halifax Regional Municipality

The Northwest Arm, located in the Halifax Regional Municipality, is a coastal area used for transportation, fishing, and recreation. Species like lobster, minke whales, and eelgrass are also found in the area.[1] Many properties along the Northwest Arm are privately owned water lots, which cover approximately one third of the water surface in this area. For years, landowners have been infilling these private water lots to extend the usable land on their property. This has resulted in alteration of the coastline, habitat destruction, and the decrease in the viability of the Northwest Arm as a public resource.[2]

There has been strong public opposition against the infilling of the Northwest Arm from residents, government officials, and community groups. Interest and concern over infilling of privately owned water lots increased during the summer of 2021, when owners of a home located on the Northwest Arm applied to infill over 1600 square meters of their private water lot. The area that could be lost because of infilling of privately owned water lots would completely change the shape of the Northwest Arm and decrease the amount of protection from the effects of climate change in the area. 

Since these lots are privately owned, neither the Halifax Regional Municipality nor the province claim to have jurisdiction over the infilling. Instead, infill applications are approved by the federal government under the Canadian Navigable Waters Act.[3] Advocates requested a federal regional assessment under the Impact Assessment Act and have called for a moratorium against the infilling of water lots until there are better policies in place to regulate infilling activities.

What are private water lots? 

A water lot is defined as a parcel of land covered by water at some time.[4] Water lots located in areas of navigable water may be created by either the federal or provincial government. Water lots are often leased by the federal or provincial government; however, there are instances of privately owned water lots.[5]

Private water lots (which are also referred to as pre-confederate water lots) are privately owned properties that include a portion of land that is submerged. Private water lot ownership does not extend to the water in the water column, since there is a public right to pass through navigable waters.[6] In the Atlantic provinces, water lots were granted to individuals by provinces prior to Confederation in 1867. They were granted to provide landowner with access and right to use the water affronting their land.[7]

There are many federal and provincial laws that regulate activities impacting water lots. However, since these pre-confederate lots are privately owned, those laws do not address the issues that arise from their development. As a result, environmental and social issues can arise.

Lack of provincial action to address infilling of private water lots in Nova Scotia

The federal government has jurisdiction for the governance of coastal waters along Nova Scotia from the ordinary low-water mark seaward to 200 nautical miles, or approximately 370 kilometers. It also has jurisdiction over matters related to coastal waters, like shipping and fisheries. Provincial governments have authority within their territorial boundaries, which is typically considered to be from the ordinary low-water mark inland. Municipalities are given powers to deal with coastal lands through provincial statute.[8]

In Nova Scotia, submerged lands along the coast up to the mean high-water mark are considered provincial Crown land, except where it has been granted otherwise or the land is considered to be federal land, like a public harbour. The Crown land may be sold or leased under the provincial Crown Lands Act. Permits are required for the infilling or construction of a wharf, mooring, or boat launch on provincial submerged land.[9] However, privately owned water lots are not subject to the same regulatory standards as provincial coastal Crown land. 

The approach to governing private water lots is not well coordinated between the federal, provincial, and municipal governments, and often the regulation of infilling of privately owned water lots is left to the federal government. Currently, the practice is for property owners to apply to infill these water lots under the federal Canadian Navigable Waters Act. Where there may be impacts on fish and fish habitat, the federal government may also review infill applications under the Fisheries Act.[10]

Conclusion

There are no provincial laws that directly address infilling of private water lots, and neither the province nor the Halifax Regional Municipality have made efforts to use existing laws to stop infilling in the Northwest arm. There is also currently no requirement for a provincial environmental assessment or permitting for infilling of private water lots. The result is that coastal areas remain vulnerable to the adverse impacts caused by infilling. It may be time for the province and its municipalities to step up and begin regulating private water lots.

Notes

[1] Pam Berman, "Proposed infilling on Halifax's Northwest Arm prompts calls for moratorium", CBC News (25 June 2021).

[2] Protect the Northwest Arm (undated).

[3] Anthony L. Chapman, QC, "Of Wharves, Water Lots, and Kings" (16 November 2004).

[4] Gerard V. La Forest, Water Law in Canada: The Atlantic Provinces, Information Canada (1973). 

[5] Public Works and Government Services Canada, Appraisal Guidelines: Water Lots (1998).

[6] Clifford Shiels Legal, "Building a Wharf in Nova Scotia: Oceanfront Property" (31 August 2015).

[7] Gerard V. La Forest, Water Law in Canada: The Atlantic Provinces, Information Canada (1973).

[8] East Coast Environmental Law, Summary Series Volume 10: Who Owns the Coast? (2018).

[9] Government of Nova Scotia, Department of Natural Resources and Renewables, "Submerged Crown Land" (undated).

[10] Moira Donovan, "Infilling could hurt Halifax's Northwest Arm, advocates say" CBC News (12 August 2021).

Clare Henderson

Clare's work with us this summer was enabled by the Schulich Academic Excellence Fund for Internships, which is an internship funding program administered by the Schulich School of Law at Dalhousie University.