While Transport Canada has approved the Dartmouth Cove infill project, there's still much the community can do.
The public is still vehemently opposed to the outstanding Dartmouth Cove infill proposal which is in front of the Department of Fisheries and Oceans for review. A public information session was held by our community group, Friends of Dartmouth Cove, on Wednesday evening, and was attended by 200 community members.
Community advocate Jill Brogan spoke about how the project has progressed since the group last connected at the first public meeting back in May of 2022.
While Transport Canada received over 500 submissions expressing concern about the project in the 2022 feedback period, the proposal was still given the green light in April of 2024. Following that approval, there are still several hoops the proponent, Atlantic Road Construction and Paving (ARCP), will need to jump through.
The Department of Fisheries and Oceans is still in active review at the federal level and will also need to give approval to have this project move forward. They need public submissions and evidence-based information to help them make an informed decision on the proposal. Public and community sentiment is relevant, but details and evidence that can stand up in court, should the developer challenge the decision, will be even more relevant.
The province and Halifax Regional Municipality also control access to the lot through adjacent properties, so they will need to grant easements for the developer to cross their lands. They have the ability to limit that access and restrict the developers options.
Local historian David Jones spoke about the “liquid history” of Dartmouth Cove and its importance to the city’s roots. There are the remains of the wharf from the first Dartmouth-to-Halifax ferry route at the bottom of Old Ferry Road, not to mention the references to an old burial island located in the middle of the Cove. This rich marine history will be lost for future generations if this infilling is allowed to proceed.
Legal Discussions - Pre Confederation Law and Dual Compliance
Phillip Saunders, Dalhousie Law professor, spoke about HRM’s jurisdiction over infilling, which it is not exercising. Saunders reviewed the constitutional law applicable to the project, which strongly supports concurrent application of federal laws (navigable waters and fisheries) and municipal land-use by-laws. So long as the laws do not conflict with each other, both level have jurisdiction.
The federal permit authorizing infilling does not require it to be done, it merely allows it. HRM could require permits for this work, and prohibit it. There would be no conflict on the test of “dual compliance”: the proponent can comply with both federal and municipal laws by not infilling the site, and there would be no interference with the federal protection of navigable waters.
The Transport Canada approval letter states that “it is the owner’s responsibility to comply with any other applicable laws and regulations including any related Halifax Regional Municipality land-use or zoning bylaws in effect.” The federal government clearly accepts that municipal laws may apply: the city should enforce its existing by-laws, or amend them if needed to prohibit this activity.
Atlantic Road Construction Claims of “Environmental Improvements” and Potential Infrastructure Delays
Jill also spoke about some of the arguments of the proponent, such as the suggestion that the infilling activity would actually leave Dartmouth Cove better than it is presently. Their current offsetting suggestion (which can be viewed in their proposal) is to create a graded rock beach with the addition of reef balls to encourage the growth of rock weed along the shore. The main flaw in this offsetting proposal is that this already exists within the Cove. The current coastline is a rock shoreline where rock weed is plentiful (see images from last week below). To suggest that infilling construction debris, stirring up years of outflow sediment with unknown repercussions, is beneficial to the area, is irresponsible and inaccurate.
The developer has also made suggestions that if this project does not get approved, it could impact the development timeline of the new hospital project. To add more context to this statement, ARCP is the subcontractor that has been awarded the bid that covers disposal of the excavation materials from the new hospital site. As mentioned by Claudia Chender during the session, they were awarded this contract because they were the lowest bidder, and they were likely the lowest bid because they were assuming they wouldn’t have to pay the same dumping fees as other contractors because they have their own private lot (ie, Dartmouth Cove). There are proper, designated disposal sites for pyritic slate that are available for dumping, but at a cost. If ARCP cannot fulfill their obligations then the tender should go to the next lowest bidder, or have to be reassessed by the province.
Request by Council for Staff Report on Dartmouth Cove
The proposed bylaw that was brought forward by council in November 2023 to try to help protect the Northwest Arm was also discussed. While Mr. Saunders did mention that the bylaw would likely not hold up in court if challenged, there was some discussion about why the approach was taken for the Northwest Arm but not Dartmouth Cove. Council had suggested an unwillingness on Transport Canada’s part to work with the municipality to put a bylaw together. In the Northwest Arm discussions of November 2023, and in a move to include Dartmouth Cove, an action item was made to “Request that staff engage with the Federal government to explore the Minister’s willingness to adopt or otherwise permit further restrictions with respect to infilling in Dartmouth Cove and prepare a supplemental staff report regarding the initiation of by-law amendments to the Regional Centre Secondary Municipal Planning Strategy to restrict water lot in filling in Dartmouth Cove”.
After several follow ups after the November council meeting as to the status of this report, Friends of Dartmouth Cove filed a Freedom of Information request to obtain the details of the report and how it was being discussed. The FOIPOP request included a reference to obtain any emails, agendas or other correspondence with Transport Canada around the subject of Dartmouth Cove. The response back showed that there were no files to be shared.
Sam Austin has said that the request of the FOIPOP was too narrow to reveal all of the discussions that were happening around infill within the Harbour, but it does raise the question, why wasn’t Dartmouth Cove specifically mentioned in any of this correspondence?
Government Opposition
Dartmouth Cove representatives from all levels of government have spoken out against this proposal. Recently, in the House of Commons, MP Darren Fisher came out condemning this infill proposal, and calling out the developer for threatening to sue him if he continued to speak out. Friends of Dartmouth Cove received letters of support from Senator Stanley Kutcher, MLA Zach Churchill and MP Darren Fisher, who couldn’t attend, but wanted to share their voice.
Pam Lovelace and Waye Mason both spoke about how the city needs to take more affirmative action, but stopped short of saying they could take any affirmative action on the Dartmouth Cove infill proposal. Pam Lovelace mentioned that any bylaw that they enacted would not be retroactive; however, no official permit has been issued, and the letter of approval does note that the proponent needs to comply with municipal laws. Waye Mason, who read comments on behalf of Sam Austin (who was out of town during the meeting), mentioned that there has been a change in tone from Transport Canada since legal action was taken from the Center for Ocean Venture and Entrepreneurship (COVE) against their decision. This may mean that there’s an opportunity to work together with them on developing a bylaw.
The main takeaway of the public meeting was that it’s not too late. There is still time for us to save Dartmouth Cove.
Reach out to the Department of Fisheries and Oceans
Reach out to HRM City Council and ask them to take action - by denying access across their land and by actioning bylaw creation to help protect this and future unwanted infill
Reach out to Build NS and Public Works Minister Kim Masland and tell them to decline access to this lot
For detailed contact information and direction on writing, please see our How to Help page.
We appreciate the time and dedication of everyone who contributed to the evening and all those who took time out of their busy days to attend the sessions. Together we can prevent this project from moving forward.
Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has. — Margaret Mead
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