Coastal erosion, rising seas will lead to more conflicts over public beach access, experts say

A dispute over access to a beach in Cumberland County is headed to court, the latest in a series of coastal access fights in Nova Scotia that have come to a head in the past year. 

A group of community members is suing a property owner over access to Clarke Head Beach. 

This comes after disputes over beach access have spurred other court cases or conflicts in places ranging from Pictou County to Cow Bay.

As more of the province's coastline is developed, and risks around coastal erosion and sea level rise increase, advocates and researchers suggest these kinds of conflicts could become more common. 

'"As the ocean moves inward, those public access beaches, if there is a private property behind them, are going to get squeezed and eventually are going to disappear," said Nancy Anningson, coastal adaptation senior co-ordinator at the Ecology Action Centre in Halifax. "And we don't have a plan for dealing with that."

Clarke Head is a beach at the point of a peninsula jutting out into the Minas Basin, near Parrsboro.

Community members say that for generations, they've accessed the beach via the Old Farm Road. The road runs over private land and leads to a ready launching point for boats, and safe access on and off the beach at high tide.

"I've used [the road] all my life, and my father before me," said Dan Best, a local resident.

Best is not part of the lawsuit but is involved in the group of roughly three dozen local cottage owners and community members acting as plaintiffs in the case.

"He fished out of there, and he used that road from the time he was 14. So that's a long ways back."

Conflict in 2016

Conflict first arose back in 2016 when the new property owners sought to block usage of the road.

In July, Justice Ann Smith issued a summary judgment, ruling that the road had not been dedicated to public use. That decision did not address whether the plaintiffs have prescriptive rights to use of the road, on which the plaintiffs are still awaiting a ruling. 

Best, who was part of the lawsuit initially but was recently removed from the list of plaintiffs due to the summary judgment, said community members unsuccessfully attempted to negotiate with the property owners before suing for access.

"This was our last resort," he said. "We didn't want to do it, but we had to do it. Everybody just feels really strongly that they want to be able to use that road."

In 2019, a judge issued an injunction granting temporary access to the beach for the community members involved in the suit.

In the ruling, Justice Josh Arnold wrote: "Clarke Head Beach is a unique and special place that is of enormous sentimental value to the plaintiffs." He went on to say that the loss to the community members from having the Old Farm Road access to the beach blocked "cannot be quantified."

COVID-19 delay

Best said the case, which has been delayed due to COVID-19, is set to proceed in the fall.

The property owners declined to comment. In 2019, they told the court that they had blocked access because the sound of people riding ATVs along the road was upsetting their granddaughter, who is on the autism spectrum. 

Several other access fights have come to a head in the past year, including in Cow Bay, where an eroding shoreline has pinched a public easement over private land that provides access to a section of Silver Sands beach owned by the municipality. 

In June, residents raised concerns about increased armouring along that shoreline, saying that in doing so, the property owners had blocked access to what was left of the easement. 

Earlier the same month, a Supreme Court judge dismissed an application for a judicial review of the provincial environment minister's decision to allow the construction of a rock wall along an eroding section of James Beach in Pictou County that community members said limited access to the beach at certain times of the day depending on the tide.

In her ruling, Justice Ann Smith wrote that while "this Court recognizes that climate change is real and will no doubt impact Nova Scotia beaches and coastal areas of the Province both now and in the future," those issues aren't for the court to address.

Maryn Lynn, one of the community members who asked for the review, said that the situation points to a gap in the legislation. 

"Our province, the government, needs to decide, are we going to be proactive and deal with climate change and erosion? Or are we just going to be reactive to it?" Lynn said.

"So that's something that is a major concern for me as we move forward because, you know, ultimately, it's the public and beach access that are going to be limited."

Coastal erosion and development driving conflicts

Patricia Manuel, a professor in Dalhousie's School of Planning, said issues with coastal access in Nova Scotia date back decades, due to the fact that roughly 87 per cent of the province's coastline is in private hands.

Nonetheless, the province came close to a solution in the 2000s, when an NDP government drafted a Sustainable Coastal Development Strategy. That strategy discussed public coastal access. 

The draft document set objectives for public access, including increasing the number and quality of public access points to the coast. 

The strategy was slated for completion in 2012. But it was abandoned when the NDP lost the provincial election in 2013.

The province's long-awaited Coastal Protection Act, which passed in 2019, and the regulations of which are currently in development, is not intended to address coastal access.

Yet there is some urgency, as coastal erosion impacts traditional public rights-of-way, even as coastal properties are subdivided, increasing development along the shoreline. 

"If [coastal land] is lightly developed, if it's a large property, not subdivided into small lots, public community traditions worked really well," said Manuel. "But those times have changed in some areas."

The issue of public coastal access is not unique to Nova Scotia, Manuel said.

But other jurisdictions have made attempts to address the problem, including in Connecticut, where legislation requires that public access is addressed in coastal development permits. The state has also compiled a map of all public access points. 

Problem will come up 'again and again'

At the planning level, another measure used in some places is a tool called rolling easements, which allow property boundaries to move landward as the high-water mark — below which the shoreline is public — moves as well.

Manuel said acrimonious disputes over coastal access could also be avoided through the use of community development models, in which community planners facilitate conversations between landowners and community members to ensure access is maintained.

"Everybody has to be neighbours, and everybody, regardless of what side of the fence they're on, whether you're a private landowner or someone who wants to use the coast, has this common appreciation for the shore. So how do we make that work in the community context?"

In the meantime, Anningson said every summer, as more people head to the beach, she gets calls from community members concerned about coastal access. 

She said there needs to be a strategy in place to secure coastal access for the public. "We're going to run into this problem again and again and again."

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