Blue Mountain Birch Cove lakes at risk after Supreme Court of Canada ruling | City | Halifax, Nova Scotia
FRiday has been a bad day for the city. Premier Tim Houston’s PC Party has decided to scrap municipal planning and change the HRM charter. Housing Minister John Lohr’s billintroduced today, will give the provincial government veto power over any bylaws the city makes on housing or development.
The bill was introduced on a day when the Supreme Court of Canada made a decision in the case of Annapolis Group Inc v Halifax Regional Municipality. The Annapolis Group wants to build the area around the newly protected Blue Mountain Birch Cove Wilderness Area, but the city council said no, sort of. It’s complicated, but the short version is that the Supreme Court said the Annapolis Group should be allowed to fight HRM in court. This is very bad news for the city, especially today. But understanding why requires a lot of context.
Until then In 1971, the Blue Mountain Birch Bay Lakes were identified by municipal planners as a high priority area for conservation. The desert, AKA the Earth in its natural form, is one of the planet’s most precious resources. Desert ecosystems keep us alive. When they develop, they are gone forever. So it is essential for humanity to preserve the wilderness at all costs.
The early 2000s were also a pivotal time in the world of Halifax’s city planning. Fresh off the back of the merger, the city was desperate for a coherent plan for the brand new HRM. One where all the previous cities were pulling together instead of competing against each other. So the city decided to launch itself into an ambitious piece of democracy, what would be known as Regional Plan.
The aim was to plan Halifax’s growth for the next 25 years. The Regional Plan is something that the city is currently under review. As part of this planning process, the city conducted extensive public consultation. The residents of the city said that protecting the environment was one of their priorities. So HRM hired EDM Planning Services Ltdwhich told them how to do it at Blue Mountain Birch Cove Lakes. And, accordingly, the city began zoning the land Urban Reserve, to make the land more difficult to develop.
As soon as the city finished doing that, Annapolis Group Inc. decided he wanted to build one subdivision right next to the protected area. People pay premiums for views of pristine, protected pieces of nature, which are becoming rare for a number of reasons, so demand is high.
What happens next is what this Supreme Court case is all about.
ornnapolis Group Inc. claims the city is taking his land and not paying fairly for it. He says that because the city has zoned the land Urban Reserve, it can’t develop it, and that’s why it’s costing the Annapolis Group millions of dollars, $119 million of them, to be exact. He says, yes, technically, he owns the land, and yes, technically, he can build on the land, but the city has made it impossible to build, so the city has de facto stolen their land.
Fun little factoid: In one of the Annapolis Group files argues that the city did not follow its own rules. The rules say that when the city doesn’t own areas for future use, the city must take it over within a year. But the Annapolis Group has money, so the Annapolis Group sued and appealed to the Supreme Court. When this happens, the city council cannot ignore the alleged rule violation.
When other less funded groups have filed similar complaints, they can only argue their case in a city committee. Committee presentations are much easier to ignore.
To oversimplify what happened next is that the Annapolis Group’s lawsuit against the city was dismissed. The group appealed that rejection, and the Nova Scotia Court of Appeal also rejected it. Then the Annapolis Group said, “Hey, Supreme Court of Canada, don’t we have a chance to make an argument here?” and the Supreme Court said “yeah, you can make an argument, I guess.”
Tthe decision issued Friday was a 5-4 decision by the Supreme Court. The minority majority agreed with the Annapolis Group that its complaints should be tested as a matter of law. The Supreme Court disagreed that HRM’s Regional Plan was legally sharp enough to dismiss the Annapolis Group’s appeal without review.
But the minority in this decision, the four dissenting justices, see the fundamental danger that the city’s loss poses to our municipal politics and local climate initiatives. Because ultimately, if the city loses this case, it means that making money from land ownership takes legal precedence over democracy and environmental protection. This means that municipal governments that carry out the will of the people have less legal standing than corporations that want to make money.
Which is as grim as it is surprising.
So after all that, what are the most likely possible outcomes?
The Annapolis Group could lose its traction and, for the first time in recorded history, the environment would win a legal battle against capital.
HRM could agree to a massive payout for the Annapolis Group in a budget that is likely to be plagued by austerity.
The city might be forced to let the Annapolis Group destroy the desert forever during a declared climate emergency so the guys who own the Annapolis Group can make money.
The province or the federal government can step in and take the land from the Annapolis Group without paying, as those two levels of government have that power.
Today was not a good day for optimism, or the fight against climate change. This is a huge loss for the planet.
To believe that Birch Mountain will be protected beyond Houston’s reign means one has to take two massive leaps of faith. That person would have to believe that Houston’s government — a government that is slamming a development through the Eisner Wetland — will not choose to do the same to another critical environmental area. That person must also believe that his government – a government that has just given itself more power to ignore the HRM council – will now stand with the city and protect a critical environmental area.
Be careful, Mr. Houston, morale is low. There’s only so much losing an increasingly desperate population can take before the only growth markets left are for pitchforks and torches.
Editor’s Note: The original copy read that HRM had zoned the land at Blue Mountain Birch Cove Lakes to protect it, but the story has been changed to better reflect the nuance of the Urban Reserve designation.