Filling in Our Harbour: Infill Developments Allowed to Trump Public Good in Halifax Harbour

(1) "No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat." - Section 35, Fisheries Act.

Day and night, tonne after tonne, slate, gravel, and other construction debris is dumped straight into the Halifax Harbor. Slowly, but surely, dump trucks from HRM and across the Maritimes are “infilling” parts of the Bedford Basin, creating new parcels of land for private development where critical fish habitat once existed.
Call it jurisdictional confusion, regulatory inertia, or the beauty of the free market. Call it what you want, but without a master plan for Halifax Harbour, integrated with the provincial coastal development policy and climate change action plan, there is nothing to stop developers from making a killing on infilling projects that threaten water quality, destroy fish habitat, and increase our vulnerability to climate change.

There is a clear view of our shrinking Harbour from the Sobeys parking lot on the Bedford Highway. At this site, currently owned and under development by the Halifax Waterfront Development Corporation Limited (WDCL), one dump truck after another can be seen winding its way through thirty-odd acres of human-made land to deposit a load of construction and acidic rock in the Basin and Harbour.

WDCL and the Halifax Regional Municipality (HRM) are in the final stages of planning for a large mixed-residential development with a marina, upscale shops, and a fabulous Harbour view at this site, once infilling is complete. This development will be built on what used to be original Harbour bottom and pristine fish habitat.

That solitary pine tree poking out from the vast moonscape of slate? It used to be part of a small island called Crosbsy’s, once favoured by kayakers and birds alike.

Infilling is one of the more visible ways that fish habitat can be altered or destroyed, by burying bottom habitat, removing the fertile intertidal and shallow sub-tidal zones where many fish feed and spawn, and eliminating water column habitat. More indirectly, the resulting silt can also settle at a distance from the original infill, smothering organisms that depend on bottom habitat. Infilling can also alter the tide flows and currents that are a vital part of the fish habitat.

Though this habitat destruction is happening right under our noses, regulatory bodies have been able to look the other way. “Harmful alternation, disruption or destruction of fish habitat”, or HADD, is a concept at the heart of the Fisheries Act, one of Canada’s oldest pieces of legislation. However, because Fisheries and Oceans Canada (DFO) has failed to declare a HADD, there has been no Environmental Assessment triggered. There has been no opportunity for public input or involvement, and no compensation has been paid to restore critical fish habitat elsewhere in the Harbour or in adjacent watersheds.

Aha, you might think, this is because Halifax Harbour isn’t fish habitat. Wrong. You wouldn’t know it from the way we treat it, but Halifax Harbour is still a functioning, living ecosystem. Despite the incredible human-made changes, this productive (though polluted) coastal estuary provides valuable marine habitat and supports important fisheries resources. Indeed, lobsters are fished extensively, especially around McNabs Island, but also in the Northwest Arm and Bedford Basin. Sea Run Brook trout, Atlantic salmon, Gaspereau, whales, seals, and American eels still navigate through the harbor as well, often traveling into the various streams and lakes that feed the estuary.

UNDERWATER REAL ESTATE
Though the Canadian legal system considers the ocean as a common good- belonging to the people of Canada- to be looked after by the federal government, some developers have found a loophole. Back before Confederation, some “water lots” along Halifax Harbour were granted to private landowners. Water lots are legally defined as parcels of land on the seabed of the harbour, attached to the land parcel and extending outward from the shoreline underwater. Often written right into the property deeds, these sections of ocean floor escape federal jurisdiction and simply become private property. This loophole releases owners from the regular obligation to protect and respect fish habitat including paying compensation for a HADD infraction.

Those concerned with this infilling loophole argue that these water lots were intended for wharfs or docks for local fishermen that would extend out into the water as temporary constructions. In recent times, various property owners however, (including the WDCL) have flouted the original conventional definition by adding retaining walls, permanent walkways and even buildings that extend to the end of their water lot. Indeed, these structures, cannot be easily dismantled later, and may cause permanent changes to the shoreline and intertidal zone.

With the creation of over 30 acres of new infilled lands that will eventually be expanded to 50 acres in total, (about the size of 5 George’s Islands), it is too late to reverse the extensive habitat loss that has already occurred. However, it is never too late for DFO to declare a HADD. Indeed, as groups like the Sackville Rivers Association (SRA) have described, it is only fair that WDCL own up to the environmental impact of the project and pay due compensation for the immense loss of habitat that the project has already caused. After all, the WDCL receives huge sums from the tipping fees companies pay to dispose acidic slate and other construction rock on the site – and will receive more selling the infilled land once the development is completed.

As SRA president Walter N. Regan notes, ”When a private developer damages a public asset, it is only fair that the public be compensated by putting money into restoring damaged or destroyed fish habitat. Though restoration projects cannot bring back lost marine habitat, they can deter future habitat loss by making the proponent pay the true cost of habitat destruction.”

HABITAT RESTORATION
Just beyond the Bedford Sobeys parking lot sits a small tidal pond known as Moir’s Pond, named after the wooden candy box factory that once sat where the grocery store does today. Surrounded by layers of industrial and commercial development, the pond also sits abreast of the ever-expanding moonscape of infill.

Moir’s Pond is connected to a narrow stream, (Nile Mile River)- which connects to Paper Mill Lake, part of the Kearney Lake system which in turn runs out of the recently protected Blue Mountain/Birch Lakes Cove Wilderness area. Incredibly, significant numbers of Atlantic salmon, Sea Run Speckled trout, Gaspereau and American eels travel up through the pond looking to get upstream for spawning.

Question- What did the Atlantic salmon say to his buddies after hitting a 15 foot tall concrete wall? Answer- Dam.

Despite significant odds, the hardiest of these migrating fish survive swimming to Greenland and back, Harbour pollution and shoreline alterations, only to be thwarted upstream. Three hydroelectric dams along the Kearney Lake system- built before fish ladders were mandated – stop salmon, trout gasperaux and eels fromcompleting their life cycles.

As Walter N. Regan of the SRA has suggested, creating fish ladders for the three dams would be a relatively low cost and effective use of habitat restoration money. Regan notes, “If we accept that we are going to be doing some development, like an infill along the shore, then there are ways to do it that are respectful to the fisheries that exist, or could exist in the Harbour and adjacent watersheds.”

One cost-effective habitat restoration project could be the construction of fish ways to allow fish passage over nearby dams. For example, the three Kearney Lake System dams, (Papermill, Kearney and Suzie’s Lake) which are the closest to the WDCL infill site. These grandfathered dams block over 16 lakes and 3 million square meters of lake habitat alone, habitat worth over $66,000,000 to the various communities in the area, and which is, of course, priceless to wildlife.

HALIFAX HARBOUR IS ALIVE
Ecology Action Centre (EAC) Coastal Coordinator Jennifer Graham is also concerned about the precedent this project may set. While many departments, corporate bodies and community groups have interest or responsibilities, Halifax Harbour lacks an overall plan that recognizes and respects it as a functioning ecosystem. As she asks, “The bigger question is, where is it going to stop? Will developers be allowed to cover the harbour in parking lots and condominiums? This harbour is a living system and we should be planning for a mixed-use ecologically productive harbor that we can all enjoy now and into the future.”

A master plan for the harbour, integrated with provincial coastal and climate change policies won’t solve the pre-confederation water lot loophole, but it would make it easier to for the government to prioritize restoration and prevent further habitat degradation from infilling projects. As Regan concludes, “It may be too late to stop this development project, but we can ensure that this doesn’t happen this way again, without an environmental assessment, without HADD compensation, and without adequate public input.”