Recently, the Nova Scotia Supreme Court denied a motion for a temporary stay of proceedings to prevent the deployment of certain tidal devices in Nova Scotia’s Minas Basin. In Bay of Fundy Inshore Fisherman’s Association v. Nova Scotia (Environment), the court held the Fishermen’s Association, which had sought the stay, had failed to prove that irreparable harm would result if deployment of the experimental tidal devices were allowed to proceed immediately. McInnes Cooper’s Doug Tupper QC and Harvey Morrison QC represented the successful tidal power proponent.
We are living in a world of increasing change, with the rapid development of new ideas and proposed new industries. The list of examples keeps growing: tidal devices, wind turbines, fracking, aquaculture, gas storage, drones, redevelopment or elimination of dams, and more. Each of these involve new developments that could impact the status quo. Federal, provincial and municipal governments are making decisions on how the development of these changes should be regulated. Citizens and citizen groups who oppose the proposed developments are increasingly challenging those decisions and the processes leading to them.
There is a constitutional requirement for a duty to consult in the Aboriginal context. In specific statutes, there may be some duties to consult other groups. Where governments have made promises of consultation, courts in some cases have recognized duties of some reasonable consultation.
Today’s government decisions are typically being challenged by judicial review, and in certain cases, statutory appeals, and by stays of proceeding and injunctions. Judicial reviews and statutory appeals are processes whereby the decisions of government authorities, such as licensing, granting of permits with conditions, and so on, are being opposed and courts are being asked to quash those decisions. Stays of proceedings and injunctions are being requested in the courts to hold developments up pending applications for judicial review and statutory appeals, and in some cases, permanent injunctions are being requested to end proposed new developments.
Here are 10 steps for developers to consider to be prepared for these anticipated citizen challenges.
About the authors:
Doug Tupper QC is a member of our McInnes Cooper’s Business Dispute Resolution Group and has over 30 years of experience in all types of litigation, in all levels of court in Nova Scotia and the Supreme Court of Canada. Doug specializes in business and corporate & commercial litigation and has been lead counsel in numerous cases, including shareholder disputes, securities litigation, professional liability claims, estate litigation, product liability disputes, aircraft and railway litigation and class actions. You can reach Doug at firstname.lastname@example.org.
Harvey L. Morrison QC is a member of McInnes Cooper’s Business Dispute Resolution Group. Harvey’s litigation practice concentrates on aboriginal and construction law cases, as well as complex commercial law cases and toxic torts. He has presented cases before all levels of court in Nova Scotia and the Supreme Court of Canada. He has also negotiated large construction and wind turbine supply contracts. You can reach Harvey at email@example.com.