Halifax seeks court ruling on Dartmouth Cove infill rules

Halifax Seeks Supreme Court Ruling on Dartmouth Cove Infilling Rules

Halifax has requested the Supreme Court of Nova Scotia to confirm that municipal rules limiting infilling in Dartmouth Cove are in effect, without provincial conditions deemed “unreasonable” by the municipality.

In November, Municipal Affairs Minister John A. MacDonald approved Halifax’s planning and bylaw changes to restrict infilling in Dartmouth Cove, with some amendments. These amendments require proof that all affected land parcels are within municipal boundaries and that the measures do not infringe on federal jurisdiction.

The Halifax Regional Municipality (HRM) and Mayor Andy Fillmore have communicated with MacDonald and provincial staff over the past few months, providing additional information. The municipality believes it has met the minister’s conditions, but MacDonald has expressed dissatisfaction.

On Friday, HRM filed a notice of judicial review, asking the Nova Scotia Supreme Court to rule on the minister’s conditional approval. The municipality seeks a declaration that the original changes passed by Halifax council in October “are in force and effect,” without amendments from the minister.

HRM also requests a declaration that the minister’s amendments “were unreasonable and ultra vires the minister,” meaning they were beyond his legal authority.

Jill Brogan, co-founder of Friends of Dartmouth Cove, a group opposed to the infilling, expressed encouragement that Halifax is “fully invested” in the changes. She hopes the minister will agree that the conditions were unreasonable and that the bylaw is enacted without court intervention.

Sarah Brannen, a spokesperson for HRM, stated that the notice for judicial review is a “protective measure” the municipality had to take. Both Brannen and a spokesperson for Fillmore’s office expressed hope that the issue could be resolved without further judicial review.

Residents and representatives from all three levels of government have urged Halifax to limit infilling in Dartmouth Cove after a local company proposed to infill their water lot with thousands of cubic meters of rock.

Atlantic Road Construction and Paving, the company behind the project, claims that new locations for dumping pyritic slate are needed in the region and that the infill would improve water quality and wildlife in the cove.

Bruce Wood, chief financial officer for the company, called it a “really sad day for HRM taxpayers” to face a potential costly court battle with the province. He noted that the Dartmouth Cove situation resembles the municipality’s ongoing legal dispute with Annapolis Group developers, who allege Halifax effectively expropriated their land in the Blue Mountain-Birch Cove Lakes area.

Wood stated that if the bylaw takes effect and the judicial review is successful, they will pursue legal action regarding constructive taking and spot zoning. He added that the municipality lacks federal government support and criticized HRM council for being “overly cavalier with taxpayers’ money.”

Although Coun. Sam Austin expressed concern about the company crossing municipal property to begin construction on their water lot, Wood said “that was a surprise to us” as the company had no such plans. He clarified that there was “nothing imminent” planned in terms of physical work.

Transport Canada has issued the company a permit to proceed, but they still require permission from Fisheries and Oceans Canada.

In its grounds for review, the municipality contested MacDonald’s Dec. 22 request for direct confirmation from Justice Canada that the municipal rules do not infringe on federal jurisdiction, such as navigation or the Fisheries Act.

HRM lawyer John Traves previously shared his legal opinion that the municipality’s rules do not infringe on federal jurisdiction. He also noted that the federal government supported Halifax’s right to limit infill on the Northwest Arm in 2024, and the Dartmouth Cove changes “were drafted as a mirror” to those rules.

Fillmore’s Dec. 23 letter to MacDonald stated that if the minister sought direct confirmation from the federal government on what is “essentially a constitutional question,” he should go through the provincial justice minister or the federal-provincial-territorial justice committee.

In its court notice, Halifax argued that MacDonald’s approval, contingent on actions from Justice Canada, is “unreasonable” and that the municipality “may never be able to satisfy this condition.”

Halifax also stated that the Halifax Charter, which enables the minister’s decision, requires the minister to approve, reject, or amend bylaw and planning changes within 30 days of council’s approval. This 30-day window ended on Dec. 1, and Halifax asserted that the Charter does not allow extensions. According to the legislation, a planning document is deemed approved if the minister does not make a decision within the 30-day period.

Heather Fairbairn, a spokesperson for Municipal Affairs, stated Tuesday that the department could not comment as the matter is before the courts.

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