Standing at the edge of Hell Point in Kingsburg, it was difficult to get my bearings in the thick morning fog. I knew that somewhere out there was Cross Island and a stunning view of Gaff Point, but all I could see were some shore birds mingling in the pounding surf.
I was there to cover a “protest” walk organized by Peter Barss, a photographer and author who lives in West Dublin. The walk was “in defiance” of what he calls the “no trespassing” signs that have appeared along the Hell Point trail in 12 locations, marking the 12 properties along the trail. The signs read: “Private property. Access without permission is prohibited. Any entry is at your own risk.”
Barss had brought along some of his own signs: “This land is your land and this land is my land.” He tapes one to each of the private property signs as we progress along the trail.
For Barss, the walk is about more than just “a protest of those signs at that place.” He says it’s “time to start talking about land ownership, especially shoreline ownership.”
Quite often people are only there for two or three weeks in the summer, buying land and putting up no trespassing signs, blocking off traditional hiking paths, even access to the water, and I think it’s criminal… One of the consequences of this privatization by the privileged is that it just generates antagonism and distrust.
According to the 2009 State of Nova Scotia’s Coast fact sheet on “Public Coastal Access,” (which is not available online) when you count the national, provincial, and municipal parks, as well as the national historic sites and the publicly owned wharves and ports, roughly only 13% of the province’s coastline is publicly owned. In the absence of any provincial laws guaranteeing access to the coast, it’s a figure that continues to get chipped away at, particularly as the federal government divests itself of many public resources such as lighthouses and wharves.
Barss says Hell Point has been “an issue” for him since the late 1970s.
I moved here from Massachusetts in 1972 and at that time, you literally could go anywhere, and you were welcome to take a walk. Hell Point actually is a place where my wife and I used to go for many walks. And at that time, it was completely wild, there were no houses…now, I think, there are 17 architecturally designed cottages, as they call them, out on Hell Point and every one of the property lines is marked by a sign that says “keep off,” and the real estate company that’s mainly responsible for selling off this land has a covenant in their contract, that only people who live on the point can walk on this path.
Barss also points out that the coastal trail had been used for generations by fishermen and should be treated as a “common path.”
“There used to be a wharf out there, so fishermen used that path, and hikers used it for a long, long time, generations literally.” But he says in recent years the access continues to tighten.
“Hell Point is almost an island and it lends itself — and this is something I’m afraid of — to being a completely gated community.”
Paddy Lounsbury is a resident of Oakland, near Mahone Bay. She and her husband also joined the protest walk. They’ve been walking the Hell Point trail for 11 years, since moving to Nova Scotia from Ontario. They also lived in England for a while and had gotten used to what she called the “right to roam” there.
Lounsbury describes an encounter she had last year when one of the home-owners “came racing” toward them, telling them that they were on private property. She says she explained to him that they had been walking on the trail for years and asked if they could just carry on across the rest of his land.
“He said, ‘No, you need to go back,’ and he went to grab me,” recounts Lounsbury. But she managed to steer clear and continued along.
“As a parting shot he said, ‘I hope you get bitten by a tick.”
Lounsbury’s hostile encounter “started the ball rolling,” and a group of concerned citizens decided to take the issue to the Municipality of the District of Lunenburg—a subject we’ll return to.
Duckworth Real Estate is located in Kingsburg and lists a number of high end, million dollar “residential offerings” as well as coastal land, and specializes in the province’s South Shore.
For instance, the company is selling nearly 20 acres of land located at the tip of Hell Point for $850,000, which includes a 1,500 square foot, 10-year-old log cabin — “a great place to stay while building your new oceanfront home.” According to the property listing, the sale comes with an “exclusive right” “to walk along the shore of Hell Point to Hirtle’s Beach and Kingsburg Beach.” It’s a right that applies “only to the 12 owners of oceanfront estates.”
I contacted John Duckworth, the owner of Duckworth Real Estate and long-time resident of Kingsburg. In an initial back and forth through email, he eventually settled on not talking to me, at least not until I spoke to the owners of the lots on Hell Point.
“Your article should be interviewing the people who think they should be able to walk around the point and the owners of the point. I am neither,” he wrote.
It’s been more than two weeks since the Halifax Examiner reached out to the Hell Point property owners via the Kingsburg Community Association, of which they are all members. But so far, there’s been no response. If and when Hell Point landowners come forward, their perspectives will be reported.
Duckworth says the current owners have no problem with people walking “as long as they’re walking in the public domain,” which is “below the mean high tide” mark.
With few exceptions, the strip of land between the low tide and high tide mark is crown land in Nova Scotia and therefore public. But for many, staying below the high tide mark isn’t always possible, or safe. Barss says at Hell Point it’s just “too rocky.”
Having just walked the trail myself, I can attest to that fact. There are sections where it would be impossible to remain below high tide without endangering yourself.
Duckworth does mention that most of the land on Hell Point, prior to the subdivision into lots, was owned by part-time resident Dr. David Murphy. “[He] offered to donate his land to the province,” but Duckworth says “the province was prepared to accept it, [but] Revenue Canada said that Murphy would be deemed to have sold the land and would have to pay tax on the capital gain.” So he decided to “create lots and sell them.”
Steeped in history
Film-makers Bill MacGillivray and his spouse Terry Greenlaw moved from Dartmouth to Kingsburg full-time in 2000. They bought a small farmhouse that was built in the late 1700s and did some renovation, but tried to remain true to the original character of the home.
“When we bought the place there was no furnace, no heat of any sort. There was one cold water tap in the kitchen. There was no bathroom. There was a well and there were animal stalls in the basement, for sheep. There was a sand floor in the basement.”
When the previous owner’s husband died, she continued to draw water from a well in the winter and was using an outdoor toilet. This was in 1996.
“One of the big attractions for us about this place, is that there is a kind of visceral history here. That gradually has changed and it’s getting lost as all the changes have happened.” This loss moved MacGillivray and Greenlaw to want to make a film about the area, which is still in the beginning stages with the collection of oral histories.
MacGillivray says that when they came to Kingsburg, the village was in an “early transition period.”
There were relatively few people from away and the vast majority of the people who lived here had a family history here… But over a very short period of time — I’d say five years after we moved here — it had gone from a tiny sleepy village to a retirement place for wealthy people from other places, buying sometimes their second or third house in Kingsburg and spending sometimes as little as half a month here.
MacGillivray describes “a clash of cultures and values over what should be private, and what shouldn’t be private.”
There’s a history here. It was a farming [and] fishing community so access to the water and access to the land was an imperative and people were very forgiving of people walking across their land to get to their fish stage or something of that sort. But not now. Immediately people start putting up private property signs and putting up gates and fences and that changed the tenor of the village. Houses that were crumbling became houses that were worth half a million bucks, so everything changed in that short period of time.
MacGillivray describes the shift that’s taken place in Kingsburg as “gentrification in a rural situation,” where people are displaced. “People whose land lay fallow for 30 years suddenly had really valuable real estate on their hands. Some parcels of land that were worthless 10 years ago were selling for half a million dollars, just the land itself.” He says that people who could no longer afford the skyrocketing property taxes on their homes and land were forced to sell.
MacGillivray is a member of the Kingsburg Community Association and says that the vast majority of the members don’t actually live in the community. He says he’s not sure of the exact numbers and that I should contact Duckworth, the “unofficial mayor” of Kingsburg.
MacGillivray also hints about something that had happened on Kingsburg beach sometime in the 1990s that created a “huge upheaval” in the village, and that Duckworth might know something about that too.
So I contacted Duckworth again and this time he agreed to a telephone interview.
‘No legal right’ to walk
According to Duckworth:
When word got out that Kingsburg Beach was going to be designated a protected beach, some people who owned lots, quickly threw foundations in and tried to get them in before the beach was protected. I think there were four foundations. Then there was a legal case… I don’t know who sued who but in the end a decision was made that the four foundations could stay and those houses could be completed but the rest of the beach was going to be protected. So the people who owned the rest of the land, some of them were pretty upset because all of a sudden their land became worthless and there was no compensation.
Duckworth appears to be referring to Nova Scotia (Attorney General) v. Mariner Real Estate Ltd., in which a three-judge court of appealed ruled in 1999.
As for the Hell Point trail, Duckworth spent a good part of the conversation grilling me about why I was covering the issue at all. “There’s been no official trail here,” and “just because we have a walkway, doesn’t mean they have any rights to that.”
Duckworth argues that even though some people could walk around Hell Point at one time, there is no right of way around it and no legal right to walk there.
“The current owners have no problem with people walking as long as they’re walking in the public domain.” I ask him if it’s always possible to walk below the “mean high tide.” He says, “Most of the time, yeah. But there’s certain parts where it’s impossible. You have to basically turn around and go back where you started otherwise you’d be walking across somebody’s front porch.”
Duckworth has lived in Kingsburg for nearly 50 years. He says he moved there from Halifax because he could “afford a little tiny house that was falling down — the local one room schoolhouse. If you pushed it over, it would have fallen down, it was in such bad shape. But we’ve been fixing it up year after year and now it’s a beautiful little house.” He says when he first arrived, Kingsburg was a fishing village. “Now there’s nobody fishing in this village. [It’s] totally transformed.”
He estimates about 30% of the homes in Kingsburg are occupied full-time.
Duckworth says that because the houses on Hell Point are “sitting there empty all winter” the owners don’t want people walking all over their properties when there’s nobody there.
“These people have private property and other people think they have the right to walk on it, and they don’t. It’s very clear.”
Duckworth says there’s been research done on the subject and “everybody knows there’s no legal right to do it.”
Recall, that after Lounsbury encountered the hostile property owner, she and a group of other citizens approached the Municipality of the District of Lunenburg. “I think they were basically horrified that this was happening,” she says.
But in June of 2019 the town council passed a motion that they not advocate for the public access to the Hell Point trail. The discussion, and decision, took place in camera, and was based on “research,” which included legal advice. “They backed off when I understand they got a legal letter from one of the homeowners here,” says Lounsbury.
Despite what appears to be a nearly consensus view that the trail around Hell Point was established and used for a long time, Duckworth seems to have dug in heels.
“When you talk about ‘the trail’ — there is no trail,” he says.
It’s just a non-existent trail. So people walk around once in a while and that’s it, it’s not a trail. It’s not like Gaff Point. If people want to walk around, go to Gaff Point. That’s there for people to hike. The rest is private property. It’s not like there’s no place to go. They’ve got Hirtle’s Beach. They’ve got Gaff Point. They’ve got Kingsburg Beach. But they don’t have Hell Point.
‘Going around the Hell’
David Mossman is a “seventh-generation” Canadian, born in Rose Bay, not far from Kingsburg. He’s a geologist by trade, and has taught at various universities in Canada and abroad. He is also the author of five books, all deeply rooted in the Kingsburg area, including his 2019 book The Legend of Gladee’s Canteen, the story of Hirtle’s Beach and the family who constructed a simple canteen there in 1951 and ran it for 40 years.
Hirtle’s Beach is located in between Gaff Point and Hell Point.
According to the jacket, the book “draws on the author’s family associations, personal memory, and the outlying stockpile of collective recollections — a tapestry of events woven through the evolutionary fabric of a small, relatively isolated Maritime coastal community.”
I figured if anyone knows about the history of Hell Point, and whether there was traditional access on the coastal trail, it would be Mossman.
In a telephone interview, Mossman told me that his uncle, Captain Winford Spindler, a rum runner who also fished out of Rose Bay, used the trail at the turn of the 20th century for hunting ducks and geese. Mossman reads a line from his book, that refers to his uncle using the trail: “Making his way around the Hell along a well-worn coastal path,” Mossman’s uncle “watches a flock of geese flying over the homestead of James Mossman,” who moved there in 1861.
Mossman says local fishermen also “had a place out there where they stored their buoys,” and that “various points along the shore had been used by fishermen.”
“There was definitely a trail around the place and people have been using it forever.”
It’s ‘not a slam dunk’
Kingsburg resident, Bill MacGillivray isn’t opposed to anyone walking the trails, up to a point.
One of the things that’s happened [at Hell Point] — and I don’t blame the people who are concerned — is that some people have said, “Ok, let’s have tours go around Hell Point. Let’s bring 15 people and walk the trail.” I don’t think anybody would mind if somebody just walked along the original trail, which basically follows the shoreline. But when it becomes an attraction… then it becomes something else. I think there’s a delicate balance between what’s private and what’s public.
MacGillivray’s property extends down to Kingsburg Beach and he says sometimes people have come up from the beach and gone right into his barn to take a look around.
“Some people have taken photographs of us on our deck from the beach…If I went into their garage or took a photograph through their window, I’d be arrested,” he says.
MacGillivray calls it “urban hubris” — this belief that when you’re on holiday you’re not actually in a real world. “This is almost like a Disneyland,” he says.
Nancy Anningson is the Coastal Adaptation Senior Coordinator for the Ecology Action Centre. In a telephone interview she tells me that the issue at Hell Point is not unique. She points to other places with similar disputes involving public access versus private property rights, where in some cases heated court battles have ensued. For instance, in the last few years there was a case in Hackett’s Cove, another one at Clarke Head Beach, there is the fiasco at Owl’s Head, and then the one at Silver Sands Beach.
Anningson says there’s a “clash” between property rights and what she calls “prescriptive rights,” which are the easements or right of ways that also might exist. She says sometimes there are properties that change ownership and suddenly the new owner doesn’t like people walking across their property anymore “so they’ll put up a barrier or sign to try to prevent that.” But she says what’s happening a lot more now is that sea level rise and coastal erosion associated with the climate crisis “changes the path so maybe the path is eroded along the shoreline and then suddenly people are walking further onto the person’s land.”
“It ends up coming down to whether or not the public who wish to use the trail can afford to take the landowner to court, or whether or not you have the resources to do so.”
But Anningson says it’s “not a slam dunk.” She makes the point that there are valid arguments on both sides of the issue, particularly when the public takes too much liberty with the access. She relays stories she’s heard of tourists looking into people’s homes through the windows, leaving garbage, taking things from the yard, and parking precariously.
She says Nova Scotia is lacking a “thorough plan that says every so many kilometres there’ll be a public place you can go with parking and garbage cans… I think that’s why the issue emerges for us because the government can’t say they have this plan in place.”
Anningson points to the United Kingdom for some possible guidance. They have the Countryside and Rights of Way (CROW) Act which gives people expanded but not unlimited access to lands.
I think what it comes down to, case by case, is whether or not people can establish the long history of use. So documents and photographs and things that would prove that this trail has existed and that it’s been well used… And then it just seems to be whatever the judge determines in the case. The real test that I see frequently is whether or not you have the resources to take something like that all the way through court because it’s so expensive.
Anningson says around the time she began working at the EAC, the Liberal government was beginning the consultations for the Coastal Protection Act, which received royal assent in April of last year. “Right now the [Department of Environment] is working on the regulations for the Act, which is very specifically focused on coastal development, specifically about eliminating inappropriate coastal development in light of climate change,” she explains.
The new Act doesn’t, however, deal with public coastal access issues.
In 2009 the NDP government under Darrell Dexter published the first ever State of Nova Scotia’s Coast — a document accompanied by six Fact Sheets on a wide-ranging selection of topics including coastal development, coastal access, and aquaculture. “It was too broad reaching,” says Anningson. “Trying to get agreement on aquaculture alone was almost impossible. But they did a lot of work and gathered all this information on coastal access.”
The Fact Sheet on Coastal Access, which is only available in hard copy, noted that “coastal land subdivision and residential development have restricted traditional access to beaches and coastal resources in some areas. At the same time, changes in recreational patterns have created new demands.”
To “ensure” public access to the coast the study recommended the province buys more public coastal lands, continues to develop trail systems on the coast, and increases incentives for private land owners to provide access.
It’s unclear whether any of these recommendations were adopted by the subsequent Liberal government.
Shining a Light
David Walmark, who has lived in Kingsburg since the 1970s, has an intimate knowledge of the Hell Point trail. He knows most of the players, the history, and most importantly, the least precarious route along the undulating and shale-strewn shoreline.
As the group makes our way ‘around the Hell,’ Walmark points to a number of the property owners who have actually helped maintain the coastal trail by mowing it or putting up helpful arrows showing the way.
It appears that not all the homeowners are hostile to people walking on their properties.
Walmark thinks the solution could be a prescriptive easement, which would allow people to walk on a path that’s been continuously used. But that involves going to court, something he says they’ve considered, and resources.
“But at this point, I think our best bet is to do what Peter and Nancy have done, which is to arrange [events like] today, and to just bring it up,” he says.
Barss says Hell Point is “emblematic of what’s happening all over Nova Scotia.”
“I don’t know what the solution is, but I want people to start talking about it and see if we can come up with a sensible solution, because most people are being shut off from a good part of our coast and all kinds of hostilities are being generated.”
Linda Pannozzo is an award-winning freelance journalist and author of two books and calls Nova Scotia home.