Case: Black v. Nova Scotia (Municipal Affairs and Housing), 2026 NSCA 60 (CanLII)
Keywords: municipal zoning; drinking water; public interest standing
Synopsis:
The Municipality of Chester does not have a municipal water utility, relying instead on private wells, cisterns, and delivered water. (See para. 11). In the 1990’s, the Council of the Municipality of Chester applies a “Protected Watershed Zone” designation, imposing limitations on development while the potential of nearby Spectacle Lake is explored as a future water supply. (See paras. 12-13). More recently, in 2024, the Council directs municipal staff to prepare a report; staff recommend an amendment to the municipal planning strategy on the basis that “Spectacle Lake is unlikely to ever be a suitable, or realistic, water source”. (See para. 17). Ultimately, Council passes a motion to rezone (i.e., to change the “Protected Watershed Zone” to “Mixed Use” and “General Basic”). (See para. 18).
Section 208 of the Municipal Government Act, S.N.S. 1998, c. 1 requires the Provincial Director of Planning to review amendments to municipal planning strategies and land use. The Director has oversight to ensure municipal land-use aligns with Provincial interests and policy. (See paras. 19, 23). More specifically, s. 208(3)(b) provides that “[p]lanning documents are subject to review by the Director…[w]here the Director determines that the planning documents…may not be reasonably consistent with an applicable statement of provincial interest”. (See para. 19).
The Appellant, Shannon Black, says the Municipality’s rezoning motion is, to use the word selected by the Court of Appeal, “misguided”. (See para. 29). She writes to the Minister of Municipal Affairs and Housing to express the view that the “Statement of Provincial Interest on Drinking Water” should apply to Spectacle Lake; that the rezoning is inconsistent with the Statement. (See para. 29).
The Minister says the Statement only applies to “current” municipal drinking water systems – which the Municipality of Chester does not have. (See para. 30). The Director then finds the Municipality’s planning documents are not subject to Ministerial approval under s. 208(3)(b) and that Spectacle Lake does not meet the definition of “Municipal Water Supply Watershed”. (See paras. 31, 33). The Nova Scotia Supreme Court (Gabriel J.) finds the Appellant lacks private and public interest standing to challenge the decision. (See para. 3). The Court of Appeal (Van den Eynden, Derrick, and Gogan JJ.A.) dismisses her appeal of the public interest standing decision. (See paras. 65-72).
Importance:
The parties agreed that the Nova Scotia Supreme Court erred in its assessment of whether the Appellant should have public interest standing. The Court of Appeal also agreed, and undertook a de novo assessment of the question. (See paras. 46-48). As a result, the Court provided a detailed review of the jurisprudence and principles that guide the determination of whether to grant public interest standing at paras. 49-53.
For the Court, the 3 factors (i.e., whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome; and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court) are a “rigid checklist”, or “considerations to be taken into account”. (See para. 51).
In this case, the Appellant sought public interest standing to raise the following question of statutory interpretation:
Does the definition of “Municipal Water Supply Watershed” in the Statements of Provincial Interest apply to a watershed zoned “Protected Watershed” with strict controls on land use put in place “to protect a future [drinking] water supply” and “to preserve the potential of [that surface water supply] … as a water source”. (See para. 37).
The Court of Appeal finds “the statutory interpretation Ms. Black urges this Court to adopt is so marginal it is doomed to fail. I agree with the Director’s submission that Ms. Black’s interpretation is plainly and obviously without merit.” (See para. 65). The Court emphasized the words “serving as” in the definition of “Municipal Water Supply Watershed” – that the definition says it includes “an area encompassing a surface watershed or recharge area, or a portion of it, serving as a water supply area for a municipal water system”. (See paras. 66, 69).
For the Court, this does not apply to Chester because it “neither owns nor operates a water facility” and “[n]o aspects of a water system exist”. (See para. 68). The Court therefore concluded that the “careful allocation of scarce judicial resources does not favour granting public interest standing” in this particular matter. (See para. 72).
Counsel for the Appellant: Shannon Black, in person
Counsel for the Respondent: Alison Campbell (Department of Justice (NS), Halifax)