Supreme Court

Judge:

The Honourable Justice John D. Murphy

Heard:

July 11, 2013 in Halifax, Nova Scotia

Subject:

Whether s.2.29 of the Halifax Regional Municipality Charter, which purports to give HRM authority to regulate “extractive facilities” at quarry sites is ultra vires.

Summary:

Northern Construction Enterprises Inc.’s request for a permit to develop a rock quarry was refused by the Halifax Regional Municipality on the basis that the proposed operations would comprise “extractive facilities” prohibited under s.2.29 of the Land Use By‑law for Planning Districts 14 and 17 (“LUB”) made pursuant to the Halifax Regional Municipality Charter.  Northern brought an Application in Court, seeking a declaration that s.2.29 (the “By‑law”) is ultra vires and of no force and effect.  The respondent contends that the By‑law is intra vires the Municipality’s enabling legislation, and the intervenors, who reside near the proposed quarry, support that position.

Issues:

(1)        Validity of By‑law

Result:

Although the Province has authority under the Environment Act to determine the location of quarries (sites for extraction or removal of rock), the Municipal By‑law giving HRM authority to regulate extractive facilities (structures and work related to processing) at quarry sites is intra vires.  The Environment Act and HRM Charter are not in conflict when the scope and purpose of the By‑law and HRM’s authority to regulate land use planning and industrial activity are considered.  The Supreme Court of Canada and NS Court of Appeal in Halifax v. Ed DeWolfe Trucking Ltd 2007 NSCA 333 prescribe a modern approach of deference in interpreting municipal powers.  The By‑law was found to be valid when a modern and purposive interpretation is applied to its ordinary language in the context of an overall statutory scheme, including provisions in the Environment Act that recognize municipal responsibility and authority in relation to industrial approvals.