What Are Water Lots?
Water lots are portions of the seabed that extend outward from the shoreline. The original intent of these water lots was for fishers to build wharves to dock their fishing vessels. Wharf construction is considered a temporary interference on a coastal ecosystem and is far less destructive than infilling and development.
The governance of water lots is complex. The Municipality does not govern them. They are submerged lands or seabeds and, as such, do not fall under municipal land-use bylaw regulation. However, if the water lot is partially or fully infilled, the Municipality is then responsible for governing the use and development of the newly created ‘land’ that results from the infilling activity. Ordinarily, the submerged land in the intertidal zone would fall on the cusp of provincial governance, with potential implications under the Environment Act, the Crown Lands Act, the Beaches Act and the incoming Coastal Protection Act, but the unique ‘water lot’ designation grants private ownership and puts the water lot in an odd governance space between federal jurisdiction and property rights. The federal jurisdiction of this segment of the coastline potentially invokes regulation under the Navigable Waters Act (Transport Canada) and the Fisheries Act (Fisheries and Oceans Canada), both of which have undergone significant changes in recent years. Depending on the location of the infilling, there could also be Species at Risk Act implications.
This odd federal designation of the seabed, with municipal jurisdiction over infilled ‘land’ on a water lot, has left a governance gap or loophole in the system. This means that it takes very little for a property owner to gain approval for an infilling permit, despite the tremendous damage and great risk associated with an infilling project. At this time, there is no provincial assessment of damage or risk associated with water lot infilling, despite the potential impacts under the above-mentioned pieces of provincial legislation. Both the municipal and provincial governments respond to any ‘water lot’ inquiry by pointing out that this is not an issue they have jurisdiction over while confirming that it is environmentally problematic.
In order to receive a permit to infill a water lot on the Halifax Northwest Arm, a property owner must apply to Transport Canada under the guidance of the Navigable Waters Act for a permit to infill. Transport Canada considers whether the infilling will cause problems with navigation of the waters. Water navigability impacts are the only criteria for this assessment and Transport Canada’s mandate does not address environmental impacts or any other risks or damage caused by the infill project. Transport Canada reviews an application and offers a 30-day feedback period for the public to express their concerns, but the parameters of those concerns are restricted to impacts on the navigability of the water.
Additionally, a proponent is required to contact Fisheries and Oceans Canada and request a review of the potential impacts of the infilling project on fish and fish habitats. If the project could result in the death of fish and/or the harmful alteration, disruption or destruction of fish habitat, the proponent must obtain authorization from Fisheries and Oceans Canada. The authorization includes terms and conditions the proponent must follow to avoid, mitigate, offset, and monitor the impacts to fish and fish habitats resulting from the project. Failure to abide by these terms and conditions may result in fines.