Two men and a woman dressed for a hike look out over Fox Lake on a beautiful autumn day. The water is a dark blue and the dark azure sky has a few wispy white clouds.
The Fox Lake Viewpoint in the Blue Mountain-Birch Cove Lakes wilderness area.  Contributed/Irwin Barrett Credit: Contributed/Irwin Barrett
The Fox Lake Viewpoint in the Blue Mountain-Birch Cove Lakes wilderness area.  Contributed/Irwin Barrett Credit: Contributed/Irwin Barrett

The Supreme Court of Canada has agreed to hear a developer’s appeal of a ruling from Nova Scotia’s highest court that found no merit in its claims that Halifax was effectively expropriating its land.

As the Halifax Examiner reported in January, the Nova Scotia Court of Appeal ruled in a written decision that Halifax Regional Municipality did not effectively expropriate the Annapolis Group’s land when council voted in 2016 to deny development rights and instead move ahead with a long-promised park.

The developer owns 965 acres of land on the east side of the provincially-protected Blue Mountain-Birch Cove Lakes Wilderness Area. Despite zoning restrictions that put development off until at least 2031, the company hoped to build a subdivision in the area and applied in 2007 to do so.

Years of back and forth between HRM and Annapolis dragged on until a controversial facilitator’s report recommended in favour of development, galvanizing enough public pressure to spur council to act. In 2016, council voted against development and in favour of a park, designed to act as a buffer around the wilderness area.

A few months later, Annapolis sued HRM, arguing “de facto expropriation, abuse of public office and unjust enrichment,” and seeking $119 million in damages.

As the Examiner reported in January:

That claim of de facto expropriation, central to Annapolis Group’s case, is an allegation that, by not allowing the company to develop its land, Halifax took it from the developer without paying.

Lawyers for the municipality sought in 2019 to have that portion of the lawsuit thrown out, applying for partial summary judgement to dismiss the claim as without evidence and unworthy of a trial. Justice James Chipman ruled for Annapolis Group in November 2019, writing that the company’s claim “raises genuine issues of material fact requiring a trial.”

The Nova Scotia Court of Appeal rejected Chipman’s ruling, and Justice David Farrar, writing on behalf of concurring Justices Duncan Beveridge and Anne Derrick, ruled Annapolis had failed to fulfill the elements of de facto expropriation: that HRM acquired a “beneficial interest” in the land and that the municipality removed Annapolis’ “reasonable uses” of the land.

Farrar wrote:

There are simply no facts in dispute that would relate to the de facto expropriation claim. Annapolis has the same rights with respect to its lands that it had prior to Council’s resolution on September 6, 2016. Nothing has changed.

There has been no acquisition of any interest in the Annapolis Lands by HRM and, similarly, Annapolis’ reasonable uses of its lands have not changed. Although HRM has published conceptual boundaries for a park, which it hopes to establish in the future, the lands and the reasonable uses to which Annapolis can put them remain exactly as they have been for many years.

Nothing that HRM did in either 2006 or 2016 has prevented Annapolis from continuing with the only uses to which the lands have ever been put. The permitted uses of the lands from 2006 remain, as does their longstanding identification as a possible future serviced area.

According to a timeline on the Supreme Court of Canada docket, Annapolis applied for leave to appeal in March. The municipality responded in May, and then Annapolis responded in mid-May.

On Thursday, the Supreme Court announced it would hear the case. It gave no reasoning and set no date for a hearing.

Zane Woodford is the Halifax Examiner’s municipal reporter. He covers Halifax City Hall and contributes to our ongoing PRICED OUT housing series. Twitter @zwoodford

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  1. I find it very interesting that the same powerful families that complain about government expenses in Nova Scotia are frequently the same ones who own the private investment / real estate companies that sue it.

    What a tangled web we have here. Henniger, Joudrey… Hmm. One wonders how much of a fortune is enough for Nova Scotia’s small pond business elites? Is costing taxpayers through lawsuits which lead to more complaints of government expenses and pushes for austerity the goal here?

    One would think that a well managed municipal wilderness area not completely subsumed by suburban sprawl would be a boon to the city. But alas, more condos and McMansions is what we get to look forward to.