Summer Student Series 2024: Noah Davis

October 1, 2024

A major reason why I decided to pursue a legal education was that it has the potential to open doors to many interesting areas of work.  However, after my first year at the Schulich School of Law, I was left with more questions than answers about what I wanted my career to look like. As someone who has always been environmentally conscious with a love for the natural beauty of Atlantic Canada, I was thrilled to have the opportunity to work as a summer student at East Coast Environmental Law (ECEL) , where I delved into the intricate legal frameworks surrounding coastal development in the Atlantic provinces. This built on my previous related experiences working the Nova Scotia Department of Environment and Climate Change during the summer of 2023 and volunteering as a pro bono law student with ECEL during my second year of law school.

One of the main projects that I worked on was supporting ECEL’s staff lawyers in developing a new volume of ECEL’s signature “Summary Series” about coastal laws and policies in Prince Edward Island (PEI). As I love camping and hiking in coastal areas (some of my favourite spots that I visited this summer were Fishing Cove, Cape Chignecto, and the Fundy Trail), I was particularly drawn to understanding the legalities of coastal access in PEI. The Island lacks provincial legislation or policy comparable to Nova Scotia’s Beaches Act, which protects 92 beaches across the province as sensitive environment and recreational resources with ensured public access, highlighted a significant gap in coastal management on the Island.

My work on the Summary Series was informed by many reports and publications, including the PEI Interim Coastal Policy Recommendations Report. The report, from the Canadian Centre for Climate Change and Adaption, underscored the urgent need for a systematic approach to coastal zone management in PEI, given the island's vulnerability to climate change. Among the 16 recommendations, the call for developing a public beach access policy stood out to me as particularly crucial.

In PEI, the land area that is wet under high tide, including beaches and intertidal flats, is considered public space (also known as the area between the high- and low-water mark), with the public having the right to access it. However, as sea levels rise and coastal erosion progresses, the boundary between private and public land shifts inland, making it essential to ensure that public access remains unimpeded.

Currently, provincial policies in PEI don’t provide decision-makers clear guidance or mandates to manage public access to the shore under changing climate conditions. This lack of clarity can lead to conflicts where private structures, such as buildings or armourstone, encroach public land, especially as the shoreline moves. The recommendation in the Report suggests the introduction of legislation to enforce the removal of such structures, ensuring that the public retains access to these vital natural areas.

This approach has precedents in other regions. For instance, the Nova Scotia’s Beaches Act has been used to protect specifically designated beaches, ensuring their environmental and recreational value is retained. Similarly, another jurisdiction flagged in the report was Texas, which has implemented a rolling easement under the Texas Open Beaches Act, which helps property owners relocate structures that have gradually entered the public easement due to shoreline erosion. The term “rolling easement” can be understood as a public right to cross private property to reach coastal areas through a designated area, with this designated area on private land gradually “rolling” further upland as the high-water mark is pushed back due to sea-level rise and coastal erosion. These measures have improved public access and reduced risks during storms. You can learn more about public rights of access to the coast across different jurisdictions at page 39 of our “Journey to the Coastal Protection Act” document.

Implementing a public beaches access policy in PEI is not just about preserving the public’s right to enjoy these spaces; it’s about ensuring the long-term sustainability of the coastline. As climate change continues to reshape coastal environments, such proactive measures are essential to balancing private property rights with the public interest. I believe that public beach access is a very illustrative example of how laws and policy can be used to both protect coastal areas and ensure that the public has a right to continue enjoying them.

Working with ECEL has deepened my understanding of these issues and strengthened my commitment to pursuing a career in environmental law. As I continue my legal education, I am more determined than ever to contribute to policies and legislation that protect our natural resources for future generations.

Noah Davis

JD Student, Schulich School of Law, Dalhousie University

Noah’s work with us was funded through the Canada Summer Jobs program, for which funding we are very grateful.