Blue Mountain Birch Cove Lakes at risk after Supreme Court of Canada decision

Friday has been a bad day for the city. Premier Tim Houston’s PC party has decided to toss out municipal planning and change the HRM’s charter. Housing Minister John Lohr’s bill, introduced today, will give the provincial government a veto over any bylaw the city makes about 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. vs Halifax Regional Municipality. Annapolis Group wants to build up the area around the newly protected Blue Mountain Birch Cove Wilderness Area, but city hall said no, kind of. It’s complicated, but the short version is that the Supreme Court said Annapolis Group needs to be allowed to fight HRM in court. That is very bad news for the city, especially today. But understanding why requires a lot of context.

As far back as 1971, Blue Mountain Birch Cove Lakes was identified by municipal planners as an area of high priority for preservation. Wilderness, AKA the Earth in its natural form, is one of the planet’s most precious resources. The ecosystems of wilderness keep us alive. When they are developed, they are gone forever. So it is crucial that humanity preserves wilderness at all costs.

The early 2000s were also a pivotal time in the Halifax city planning world. Fresh off the back of amalgamation, the city was desperate for a coherent plan for the brand-new HRM. One where all the former cities were pulling together instead of competing against each other. So the city decided to launch itself on an ambitious piece of democracy, what would come to be known as the Regional Plan.

The point was to plan out Halifax’s growth for the next 25 years. The Regional Plan is something the city is currently in the process of reviewing. As part of this planning process, the city did extensive public consultations. The people of the city said protecting the environment was one of their priorities. So HRM hired EDM Planning Services Ltd, which told them how to make that happen at Blue Mountain Birch Cove Lakes. And, accordingly, the city started zoning the land Urban Reserve, to make the land harder to develop.

As soon as the city finished doing that, Annapolis Group Inc. decided it wanted to build a subdivision right next to the protected area. People pay premiums for views of pristine, protected pieces of nature, which are becoming rare for some reason, so the demand is high.

What happens next is what this Supreme Court case is about.

Annapolis Group Inc. claims the city is taking its land and not paying fairly for it. It says because the city zoned the land Urban Reserve it can’t develop it, and therefore it’s costing Annapolis Group millions of dollars, $119 million of them, to be exact. It says, yes, technically, it owns the land, and yes, technically, it can build on the land, but the city has made it all but impossible to build, so the city has de facto stolen their land.

Fun little factoid: In one of Annapolis Group’s filings it makes the argument that the city didn’t follow its own rules. The rules say that when the city zones land it doesn’t own for future use, the city has to acquire it within a year. But Annapolis Group has money, so Annapolis Group sued and appealed to the Supreme Court. When that happens, city council can’t ignore its alleged rule-breaking.

When other less-monied groups have lodged similar complaints, they can only argue their case to a city committee. Presentations to committees are much easier to ignore.

To vastly oversimplify what happened next is that Annapolis Group’s suit against the city was rejected. The group appealed that rejection, and the Nova Scotia Court of Appeals also rejected it. Then Annapolis Group said “Hey, the Supreme Court of Canada, don’t we get a chance to make an argument over here?” and the Supreme Court said “yeah, you can make an argument, I guess.”

The ruling released Friday was a 5-4 decision by the Supreme Court. The slim majority agreed with Annapolis Group by saying its grievances needed to be tested legally. The Surpreme Court did not agree that HRM’s Regional Plan was legally ironclad enough to reject Annapolis Group’s appeal out of hand.

But the minority in this decision, the four justices against, see the fundamental risk that the city losing poses to our municipal politics and local climate initiatives. Because ultimately, if the city loses this case, it means that making money off land ownership takes legal precedence over democracy and environmental protections. It means municipal governments implementing the people’s will have less legal standing than corporations who want to make money.

Which is as bleak as it is unsurprising.

Hobson Lake in the Blue Mountain-Birch Cove Lakes area. Credit: File

So after all that, what are the most probable possible outcomes?

Annapolis Group could lose its appeal and, for the first time in recorded history, the environment would win a legal fight against capital.

HRM could settle for a massive payout to Annapolis Group in a budget likely to be plagued with austerity.

The city could be forced to let Annapolis Group destroy wilderness forever during a declared climate emergency so the guys who own Annapolis Group can make some money.

The province or the federal government could step in and take the land from 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 resounding defeat for the planet.

In order to believe that Birch Mountain will be protected beyond Houston’s reign means someone has to make two massive leaps of faith. That person would have to believe that Houston’s government—a government that’s ramming a development through Eisner Wetland—will choose not do to the same thing to another environmentally critical area. That person also has to believe that his government—a government that has just given itself more power to ignore HRM council—will now side with the city and protect an environmentally critical area.

Be wary, Mr. Houston, morale is low. There are only so many defeats 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 the HRM had zoned the land in Blue Mountain Birch Cove Lakes to protect it, but the story has been changed to better reflect the nuance of the Urban Reserve designation.