Wolfville (Town) v. Bishop-Beckwith Marsh Body

Wolfville (Town) v. Bishop-Beckwith Marsh Body Court Court of Appeal Date 1996-05-21 Citation 1996 NSCA 126 Docket CA 122425 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice); Hallett, J. Doane (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 122425 NOVA SCOTIA COURT OF APPEAL Cite as: Wolfville (Town) v. Bishop-Beckwith Marsh Body, 1996 NSCA 126 Hallett, Roscoe and Pugsley, JJ.A. BETWEEN: TOWN OF WOLFVILLE ) James E. Dewar, Q.C. ) for the Appellant Appellant ) ) - and - ) ) Robert G. Belliveau, Q.C. ) Michelle C. Awad ) for the Respondents BISHOP-BECKWITH MARSH BODY and ) GRAND PRÉ MARSH BODY ) ) Respondents ) Appeal Heard: ) March 28, 1996 ) ) ) Judgment Delivered: ) May 21, 1996 ) ) ) ) ) ) ) ) THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Roscoe and Pugsley, JJ.A. concurring. HALLETT, J.A.: This is an appeal by the Town of Wolfville from a decision of a Supreme Court judge in Chambers declaring that regulations respecting the use of marshlands of the two respondent Marsh Bodies in the Town of Wolfville, made by those Bodies pursuant to the authority given them under the Marshland Reclamation Act, R.S.N.S. 1989, c. 274, have paramountcy over a conflicting land-use by-law of the Municipality of the Town of Wolfville made in 1992 pursuant to the provisions of the Planning Act, R.S.N.S. 1989, c. 346. The import of the regulations made by the Marsh Bodies, effective June 1, 1994, prohibits the use of marshlands with some minor exceptions for other than agricultural purposes. Part of the respondents' marshlands or dykelands, as they are often referred to, are within the Town boundaries. With respect to the marshlands the Town's municipal planning strategy provides: "It shall be the intention of Council to establish an Agricultural designation on the Generalized future Land Use map and an Agricultural Zone in the Land Use By-Law to be applied to the Dykeland area, except that portion that is zone C-3." The Town's land use by-law provides that most of the respondent's marshlands within the Town boundaries are zoned agricultural. The uses permitted in the agricultural zone are obviously agricultural with the following exceptions: Existing Uses (as detailed in Schedule 4), grazing and pasturage, passive recreational activities such as fishing, bird watching and similar ecologically oriented educational activities, public or private parks involving no buildings and public or municipal purposes. The existing uses identified in Schedule 4 are with respect to a scrap yard, Acadia University's playing field, the Town of Wolfville sewage treatment plant and sod farming at various locations. A small portion of the Bishop-Beckwith Marsh Bodies lands adjacent to the railway track and the harbour are zoned C-3. In this area there have been uses other than solely agricultural for many years. In 1992 the Town's municipal planning strategy was amended allowing for commercial and industrial development in a new Industrial Comprehensive Development District Zone. That Zone comprises an area to 600 feet north of the then existing downtown in the C-3 zone. This was done to accommodate the development of a business park located on approximately the same land on which commercial non-agricultural land use has continued for 100 years in part and 40 years in another part. This comprehensive development area is within the C-3 zone. In the C-3 zone the construction of small scale processing fabrication and like manufacturing operations, small engine or auto body repair shops, laundry and drycleaning operations, paint and sheet metal shops, wholesaling operations, parking lots, retail stores and public garages are permitted. The Marsh Bodies regulations would prohibit these uses. The 1992 amendments to the municipal planning strategy and land use by-law were approved by the Minister as required pursuant to the Planning Act. The Town contends that a consequence of the Marsh Bodies passing these regulations it is unable to install a new sewer service to accommodate seven houses on the dykelands. As well, the regulations frustrate pending development proposals within the C-3 zone, prevent the expansion of the Town's sewer treatment plant and lagoon and prevent the Town from accessing water of a high quality and yield from a well on the dykelands. The parties were unable work out compromises that would accommodate their respective interests. Each brought applications in the Supreme Court of Nova Scotia for declarations that their respective land-use controls were paramount when in conflict. The learned Chambers judge concluded: "The Legislature has, by the Planning Act and the Marshland Reclamation Act, determined how each body may effect planning in respect to lands within their respective spheres of responsibility. Although the procedures for creating the subordinate legislation are different, that difference does not give rise to a higher status or standing of one over the other. So long as each body acts within the sphere of the authority granted by the Legislature, each is entitled to create subordinate legislation as authorized by the particular statute under which it is operating. In these circumstances, the Marshland Reclamation Act is special, the Planning Act is general, in scope. The principle that the general shall not derogate from the special, where there is no clear statutory provision overriding this principle of interpretation, is therefore applicable. The Town by-laws are valid, but only to the extent they do not conflict with the regulations of the Marsh Bodies." Unquestionably there is a conflict between the Marsh Bodies' regulations and the Town's land-use by-law but, with respect, I disagree with the learned Chambers judge's determination of the issue. It was an error to decide this case by the application of the maxim generalia specialibus non derogant. The Law In the foreword to Driedger on the Construction of Statutes, 3rd edition, 1994, by Ruth Sullivan, the author states: "I share Driedger's conviction that statutory interpretation is not a rule-governed activity, but rather an activity in which rules are used either effectively or ineffectively." At p. 131 Professor Sullivan sets out the modern rule of interpretation which, in my opinion, is applicable as it implicitly recognizes the ordinary meaning rule as well as the purposive approach to statutory interpretation. She states at p. 131: "There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just." Her conclusion in dealing with the modern interpretation rule is contained at p. 135 where she states: "There is nothing wrong with justifying an interpretation in terms of legislative intent. In a given case, on the basis of established linguistic practice or an assumed value or belief, a court may confidently conclude that its interpretation expresses or gives effect to the legislature's intent. What makes this claim credible, however, is acceptance by the audience of the linguistic convention or the assumed value or belief on which the claim is based." The most direct evidence of legislative purpose is to be found in formal statements of purpose embodied in the legislation in question (Driedger, 3rd edition, p. 51). The Supreme Court of Canada in R. v. T.[V.], [1992] 1 S.C.R. 749 at 765, in discussing a purpose statement in the Young Offenders Act, rejected the argument that statements of purpose were merely preamble. Justice L'Heureux-Dubé, for the Court, stated: " I am unable to accede to the submission of the appellant that s. 3(1) is merely a 'preamble' and does not carry the same force one would normally attribute to substantive provisions, especially since Parliament has chosen to include the section in the body of the Act." In addition to considering the text of the Act in question, it is well-established that the historic evolution of an Act may give assistance to a proper interpretation of the Act in question. In Gravel v. City of St. Leonard, [1978] 1 S.C.R. 660 at p. 667 Pigeon J. stated: "Legislative history may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it." In Hills v. Canada (A.G.), [1988] 1 S.C.R. 513 at p. 528, Justice L'Heureux-Dubé, in dealing with the approach to the interpretation of statutes, made the following statement: " A good starting point to interpret a statute properly is to examine, however briefly, its legislative history." Of particular relevance to the issue on this appeal is the presumption that amendments to the wording of legislation were done for a reason. In D.R. Fraser and Co. v. Minister of National Revenue, [1949] A.C. 24 at 33, Lord MacMillan wrote: "When an amending Act alters the language of the principal statute, the alternation must be taken to have been made deliberately." In Dowson v. R., [1983] 2 S.C.R. 144 Lamer J. (as he then was) at p. 155 stated: " An historical review of the evolution of the Crown's power to avoid the preliminary inquiry or the grand jury indicates an intent on the part of Parliament to increase the Attorney-General's accountability . . . . . . I can see no reason why we should not when possible interpret the law in compliance with this clear attitudinal trend on the part of Parliament." In the case under consideration on the appeal before us, two regulatory bodies created under different provincial Acts made regulations that affect land use within their geographic boundaries and which are in conflict. The learned Chambers judge concluded that the regulations made under the Marshlands Reclamation Act were special subordinate legislation and that the land-use by-laws under the Planning Act were of general application and therefore the special prevailed over the general. In short he resolved the conflict by applying the maxim generalia specialibus non derogant. In The King v. Williams, [1944] S.C.R. 226, Kerwin J. stated at p. 231: "In construing statutes and orders in council, the courts have, from time to time, adopted particularized rules and maxims but these must not be used in such a manner as to lose sight of the fundamental object, which is to ascertain and give effect to the intention of Parliament and the Governor in Council." In the same case, Hudson J. stated at p. 239: "The maxim generalia specialibus non derogant is relied on as a rule which should dispose of the question, but the maxim is not a rule of law but a rule of construction and bows to the intention of the legislature, if such intention can reasonably be gathered from all of the relevant legislation." In the text The Interpretation of Legislation in Canada, Côté, second edition, 1991, at p. 304 stated: " In fact, there are grounds for misgiving when a Latin maxim is mechanically invoked to resolve a complex question of inconsistency, without comment on either the aim of one or other of the enactments, or of the intention of Parliament in adopting both." I am very mindful that we are dealing with inconsistent regulations. Côté deals with this issue at p. 304. He states: " The legal literature and case law on inconsistent regulations is rather sparse. For the most part, it is believed that the rules developed for statutes can be easily transposed." I agree. There is no reason why the same basic principles applied to resolve conflicting statutory provisions cannot be transposed to deal with the issues which confront us on this appeal. If inconsistent regulations are made by different regulatory bodies (as in this case), the conflict can only be resolved by careful analysis of the intention of the Legislature (Côté p. 306). Where statutes are in conflict as they were in R. v. Greenwood (1992), 70 C.C.C. (3d) 260 (Ont. C.A.), Griffiths, J.A. directed his attention to the test to determine which Act is general and which is special with respect to the matter in question. He stated at p. 266: " The question of what constitutes special legislation as opposed to general legislation must, in itself, be a matter of construction involving a careful examination of the over-all schemes of the two pieces of legislation to determine Parliament's intention." In Driedger, 3rd edition, Professor Sullivan deals with the question of determining which Act is intended to prevail when Acts are in conflict. She stated at p. 181: "By examining overlapping provisions in their relevant legislative context, the courts are sometimes able to place them in a single scheme and assign them a ranking or priority based on their role in that scheme. Conflict is thus avoided by subordinating one provision to another in a way that gives effect to the dominant purpose of the legislature." Professor Sullivan referred to the decision of the British Columbia Court of Appeal in Chef Ready Foods Ltd. v. Hong Kong Bank of Canada (1990), 51 B.C.L.R. (2d) 84 (C.A.). In that case, the concern related to provisions in the Bank Act and the Companies Creditors Arrangement Act (C.C.A.A.). Pursuant to ss. 178 and 179 of the Bank Act, banks could realize on security under certain circumstances. Pursuant to s. 11 of the C.C.A.A. a court could make an order restraining or postponing proceedings by a creditor. It becomes an issue whether an order made under the latter Act could temporarily prevent a bank from realizing on its security despite its right to do so pursuant to ss. 178 and 179 of the Bank Act. The bank argued that the Bank Act set out a detailed and complete scheme which would be disrupted if s. 11 orders were applied to s. 178 securities. The bank's arguments did not prevail. The court analyzed the broad public policy objectives of the C.C.A.A. and concluded that to give the Bank Act provisions priority would destroy the protection afforded by the C.C.A.A. Of significance is that the court found that the C.C.A.A. provisions prevailed over ss. 178 and 179 of the Bank Act despite the fact that the provisions in the Bank Act were more specific. The court reached its conclusion because it was of the opinion that the C.C.A.A. provision gave effect to the Legislature's dominant purpose. On the other hand, in R. v. Canadian Broadcasting Corp. (1992), 72 C.C.C. (3d) 545 (Ont. Gen Div.), Borins J. found that specific provisions pertaining to broadcasting in the Canada Elections Act, which dealt with broadcasting during an election in a detailed and comprehensive way, prevailed over the general regulatory power conferred on the C.R.T.C. by the Broadcasting Act. In commenting on the C.B.C. case, Professor Sullivan stated at p. 188: "In less obvious cases, the courts must examine the legislation in relation to the facts and issues of the particular case. Legislation that is general in relation to some facts or issues may be specific in relation to others." Disposition of the Appeal In a search for the presumed intention of the Legislature it is relevant to consider not only the provisions of the enabling statutes but also their evolution and their purpose in order to determine which of the controls on land use shall apply to the marshlands within the Town. Section 130 of the Planning Act provides: "130 In the event of conflict between this and any other Act, the provisions of this Act shall prevail." This section evidences an expressed intention of the Legislature that the Planning Act prevails over all other Acts when there is a conflict. This, of course, includes prevailing over the Marshlands Reclamation Act. However, the Planning Act does not expressly state that land-use by-laws made by municipalities prevail over regulations made under the authority of other Acts of the Legislature. Therefore it is necessary to look to the enabling statutes in issue to determine if there is exhibited in the respective statutes an implied hierarchy between the land use control made by the respective bodies authorized to make regulations under the Planning Act and the Marshlands Reclamation Act. Both the regulations made by the respondents under the Marshlands Reclamation Act and the land-use by-law made by the appellant under the Planning Act are valid to the extent that they were respectively within the authority granted to these bodies by the Legislature under the respective Acts. The issue is which set of controls over the uses of marshlands within the Town of Wolfville shall prevail when the controls are in conflict. Evolution of the Respective Acts In 1760 the British Parliament enacted the Commissioners of Sewers Act, 34 Geo. (2d) Chapter 7 which provided that owners of marshlands could, through Commissioners appointed by the Governor and Council, build and repair dykes to prevent flooding and erosion of marshlands so as to prevent the loss of agricultural lands. The Commissioners were empowered to convene meetings, etc., to effect the building and repair of the dykes and collect money from the various owners of marshlands to defray the costs of doing such work. In 1900 an Act respecting the Improvement of Dyked and Marshlands was passed by the Legislature of this Province as Chapter 12 of the Statutes of Nova Scotia, 1900. The Act was referred to as the Marsh Act. It provided for appointment of Commissioners of sewers by the Governor in Council and gave the Commissioners powers to construct the necessary works to prevent flooding and erosion of the agricultural lands in question. The Act provided for the Commissioners to collect the costs of doing this work from the various owners and to assess rates against them to this end. In 1949 the Marshland Reclamation Act was enacted and provided for the incorporation of Marsh Bodies. After a certificate incorporating a Marsh Body is issued under the Marshland Reclamation Act then the Marsh Act no longer applies to the marshland in respect of which the Body was incorporated. The Marshlands Reclamation Act, as passed in 1949, continues to this day as Chapter 274 of the Revised Statutes of Nova Scotia, 1989. In contrast, land-use planning legislation has grown from a modest beginning in 1915 to now play a dominant role in controlling the use of land in Nova Scotia. The Town Planning Act of 1915 made no mention of possible conflicts with other Acts. However, it was amended in 1939 when the following section was added: "Where the provisions of this Act conflict with the provisions of any other general or special Act of the Legislature of Nova Scotia, the provisions of such general or special Act shall prevail." This provision remained in the planning legislation until 1969. In that year, what is now s. 130 of the Planning Act was enacted. The Planning Act of this Province was substantially revised by the enactment of Chapter 9 of the Statutes of Nova Scotia, 1983. For the first time, there was a legislative provision in the Planning Act expressly stating its purpose. Section 2 of that Act, which is still in force, provides: "2. The purpose of this Act is to (a) enable the Governor in Council to identify and protect the interests of the Province in the use, development and subdivision of land through the adoption and administration of provincial land-use policies and regulations and provincial subdivision regulations; (b) enable municipalities to assume the primary authority for planning within their respective jurisdictions, consistent with their urban or rural character through the adoption of municipal planning strategies, land-use by-laws and subdivision by-laws consistent with the policies and regulations of the Province; (c) establish a consultative process which will ensure the right of the public to have access to information and participate in the formulation of policies, regulations, strategies and by-laws, including the right to be notified and heard before decisions are made under this Act; and (d) provide for the fair, reasonable and efficient administration of this Act, in order that sound development may be encouraged." {Emphasis added} Purposes of the Acts The essential purpose of the Marshlands Reclamation Act was to create a scheme that would be capable of preserving marshland from encroachments by the sea and thus maintain their use as agricultural lands. The Minister of Agriculture and Marketing, subject to the approval of the Governor in Council, was authorized to construct works for the protection of marshlands. "Works", which appears in several relevant sections of the Act, is defined to include: "dykes, aboiteaux, breakwaters, canals, ditches, drains, roads and other structures, excavations and facilities for the reclamation, development, improvement or protection of marshland." The Act provides for the appointment of a Marshlands Reclamation Commission by the Governor in Council. The duties of the Commission are set out in s. 9: " The Commission shall advise the Minister on matters related to the reclamation and protection of marshland and its development and maintenance for agricultural purposes and shall study and examine proposals for construction, reconstruction, repair, maintenance, conduct, or operation of works and shall make recommendations thereupon to the Minister and shall perform such further or other duties as may be assigned to it by this Act or the regulations made by the Governor in Council." The Act enables owners of marshlands to become incorporated as Marsh Bodies. The powers of a Marsh Body are set out in s. 17. "17 A body may (a) acquire, hold, use, sell and lease real and personal property; (b) sue or be sued in its corporate name; (c) construct, reconstruct, recondition, repair, maintain, conduct and operate works; (d) enter into agreements with the Minister or other persons for the construction, reconstruction, reconditioning, repairing, maintenance, conduct or operation of works; (e) make by-laws not inconsistent with this Act for the regulation of its business and affairs; (f) subject to the approval of the Commission, make regulations respecting works and lands within or affecting the area; (g) raise money for its purposes by borrowing or by the levying of rates in the manner hereinafter provided; (h) do and perform all other acts and things incidental or conducive to the attainment of its objects." A Marsh Body may assess and collect taxes from the owners of lands within the boundaries of the marshland tract over which a Marsh Body has authority. The executive committee of a Marsh Body has power to expropriate lands (s. 54). The Act provides for arbitrators to fix an award compensation to owners of land expropriated. The Act also authorizes the Governor in Council to make regulations pursuant to s. 57. So much for an overview of the Marshlands Reclamation Act. The regulations made by the Marsh Bodies that are in issue in these proceedings were made pursuant to the power contained in s. 17(f) of the Act. The regulations were approved by the Marshlands Reclamation Commission. I will now turn to a consideration of the purpose of the Planning Act. Its purposes are set out in s. 2 which I have already quoted. A review of the Act shows that the purposes of the Act as set out in s. 2 are given substantive effect by the operative sections of the Act. Pursuant to s. 7, the Governor in Council may adopt provincial land-use policies which, in the opinion of the Governor in Council, are necessary to protect the interests of the Province in the use and development of the land resources of the Province. Specifically included in matters over which policies may be adopted are with respect to agricultural lands, coastal areas, land located in flood plains and lands subject to erosion, subsistence or similar hazards. Pursuant to s. 16 of the Act, the Minister, upon the request of two or more municipalities, may establish a District Planning Commission for an area comprised of all or part of those municipalities. Those Commissions have extensive powers. Fundamental to the operation at the municipal level of the Planning Act is the obligation of a municipality to have a public participation program before undertaking the preparation of a municipal planning strategy. The purpose of a municipal planning strategy is to provide statements of policy for the management of the municipality and to further such purpose to establish policies which address problems and opportunities concerning the development of land and the environmental, social and physical effects of such development (s. 37(a)). There is a requirement that before adopting a municipal planning strategy the Municipal Council shall hold public hearings at which oral and written submissions may be received (s. 42). A planning strategy shall only be adopted by Council after consideration of any submissions received pursuant to s. 42. There is provision in the Act for approval of such municipal planning strategy by the Minister. Under s. 47 of the Act if the Governor in Council has adopted a provincial land-use policy or regulation and where, in the opinion of the Minister, a municipal planning strategy or land-use by-law does not carry out the intent of the provincial policy or regulation, the Minister shall provide for the amendment of the same. The Act provides a detailed regime for public participation if this power is invoked by the Minister. Municipal planning strategies are implemented by the municipality passing land-use by-laws, which by-laws shall provide for the establishment of zones and other matters required to implement the planning strategy. The planning area shall be divided into zones and the by-law shall prescribe for each zone permitted or prohibited uses of land or structures (s. 53(1)). Pursuant to s. 53(3)(b) the by-laws may regulate or prohibit the use of land except for such purposes as may be set out in the by-law. A land-use by-law is subject to the approval of the Minister and does not come into force until so approved (s. 59(1)). Section 65 provides for a system to obtain the approval of the Minister following the adoption by the municipality of a land-use by-law or an amendment thereto. Section 65(2) provides that the Minister shall approve a land-use by-law submitted to the Minister for approval unless " (a) it contravenes or conflicts with the law; (b) it conflicts with an applicable provincial land-use policy or regulation; (c) it does not carry out the intent of the applicable planning strategy or amendment thereto; (d) in the opinion of the Minister, it conflicts with any other provincial interest." However, pursuant to s. 65(5), if the Minister does not make a decision to approve within sixty days, the land-use by-law is deemed to be approved. There are extensive provisions for appeals from decisions of Council made pursuant to the Act and, as previously mentioned pursuant to s. 130, the Act prevails over other Acts which are in conflict with the Planning Act. Conclusion Considering the evolution of the enabling statutes, their respective purposes and the expressed intention of the Legislature that the Planning Act prevails over other Acts when in conflict, I am of the opinion that the Town's by-laws ought to prevail within the Town over the Marsh Bodies regulations to the extent that they are in conflict. I will set out why I have come to this conclusion. The Marshlands Reclamation Act has been a static piece of legislation for almost fifty years. In contrast, legislation regulating land-use in the Province has been in a constant state of evolution and development over most of this century, culminating in a passage in 1983 of the Planning Act, S.N.S. 1983, Chap. 9. That Act provides for a complex, integrated system to regulate land-use in the Province with the Legislature conferring the primary authority for planning within the municipality to the municipal council through the mechanism of the adoption of a municipal planning strategy and land-use by-laws to give effect to that strategy. In contrast, s. 17(f) of the Marshlands Reclamation Act vests in a Marsh Body the power to make regulations respecting works and lands within the marshland tract. There is nothing else in the Act that deals with any procedures to consult with the public; there are no appeal provisions. There is simply not a comprehensive regime for exercising this regulatory power. I would note that included in the powers conferred on a Marsh Body by s. 17 are powers relating to its principal function to construct, reconstruct, repair and maintain dykes, aboiteaux, ditches and drains for the reclamation, development and improvement or protection of marshland (17(c)). Pursuant to 17(d), the Marsh Body may enter into agreements with the Minister to this end and under (g) may raise money by borrowing or levying rates. In view of the detailed land-use planning regime established by the Planning Act with the principal actor in regulating land-use being the municipality and given that the Planning Act prevails over all other Acts in conflict, the Legislature could not have intended that a Marsh Body would be able to enact regulations under the modest powers granted to such a body that would prevail over a land-use by-law adopted by a municipality and approved by the Minister. The power to make regulations respecting marshlands, while one cannot say that it is an incidental power, as it is specifically provided for in s. 17 of the Act, is not one of the primary purposes for the creation of a Marsh Body. The issue that arises from these conflicting controls that we have under consideration involves the regulation of land-use. The Planning Act is the dominant provincial legislative instrument to give effect to this necessary public objective - there can be no question about that. Considering the explicit statement by the Legislature that the Planning Act prevails over other Acts when they are in conflict, coupled with the detailed regime created by the Planning Act to effect proper land-use planning, it is implicit that the Legislature intended that land-use by-laws passed by a municipality would prevail over regulations made by a Marsh Body with respect to marshlands within the Town to the extent there is a conflict. Counsel for the Marsh Bodies relies on the decision of the Supreme Court of Canada in the City of Ottawa v. Eastview, [1941] S.C.R. 448 to support his assertion that the Marshlands Reclamation Act is special legislation and, therefore, prevails over the Planning Act which he asserts is general legislation. In my opinion the Marshlands Reclamation Act is not a special or private Act of the Legislature such as the statute in issue in the City of Ottawa v. Eastview, [1941] S.C.R. 448. Nor can it be said to be specific legislation regulating the use of marshlands within the Province. Its primary purpose was to allow owners of marshlands, in cooperation with the Minister of Agriculture and Marketing, to reclaim marshland by the construction of dykes, ditches, etc. In my opinion, the Marshlands Reclamation Act is an Act of general application in the Province just as is the Planning Act. It seems apparent to me that with respect to the provincial interest in regulating land-use and, I might add, in matters of expropriation, the power to make regulations under the Marshlands Reclamation Act has been superseded by more specific legislation in these areas of the law. The respondents' argument that if land-use by-laws of a municipality are to prevail, this will destroy the purpose of the Marshlands Reclamation Act is an overstatement. In this case the Town has a municipal planning strategy which requires marshlands to be used predominantly for agricultural purposes with a few exceptions. All the marshlands within the Town's boundary are zoned agricultural except an area of the marshland that is within the C-3 zone. In short, this zone occupies fifteen acres of the Bishop-Beckwith Marsh Bodies' lands, which, consist of 460 acres, the rest of those lands are zoned for agricultural use. None of the Grand Pré Marsh Bodies lands within the Town are zoned for uses other than agricultural. The argument that all marshlands are in one municipality or another and theoretically all of such marshlands could be zoned for uses other than agriculture cannot be taken seriously. If the Town Council wished to pass such a land-use by-law, it would entail an amendment to the municipal planning strategy. By reason of s. 50 of the Planning Act, this would engage ss. 42 and 43 of the Act. Pursuant to these provisions the Marsh Bodies could make submissions with respect to the proposed amendments. In the final analysis, such an amendment would require approval of the Minister. If the Town, despite opposition by the Marsh Bodies, approved such an amendment to the municipal planning strategy and the land use by-law, the Marsh Bodies would still be in a position to make representation to the Minister that the by-law ought not to be approved on a basis that it would have a detrimental effect on the provincial interest in marshlands (s. 43(2); s. 65). The detailed legislative scheme created by the Planning Act which gives primary authority to the municipalities for planning within their respective jurisdictions ought not to be frustrated by regulations passed by a Marsh Body as this would clearly be contrary to the intention of the Legislature. There are a few other matters on which I should comment. In my opinion, the word "jurisdictions" as used in s. 2(b) of the Planning Act, considering the context in which it appears, refers to the geographic boundaries of the municipality in question and not its law-making authority. The learned Chambers judge in concluding that the regulations made under the Marshland Reclamation Act were paramount apparently gave some weight to certain obiter dicta I made in Porters Lake Siding & Contracting Ltd. v. Municipality of the County of Halifax & Hefler, Gough & Board of Health of the County of Halifax (1978), 31 N.S.R. (2d) 645. It is relevant to note that in 1978 when Porters Lake was decided, s. 2 of the Planning Act setting out as a purpose of the Act that municipalities were to assume primary authority for land use planning was not in force at that time. The extensive revisions to the Planning Act did not take place until 1983 and reflected the increasing importance of land use planning in our society and the dominant role to be played by municipalities in this process. In my opinion, the trial judge erred in applying the maxim generalia specialibus non derogant. The conflict that has arisen can be resolved by ascertaining the intention of the Legislature from the provisions of the respective enabling statutes, their evolution and purpose. I would allow the appeal and make a declaration that to the extent that the Marsh Bodies regulations made pursuant to the Marshlands Reclamation Act are in conflict with the Town of Wolfville's land use by-law made pursuant to the Planning Act, the said regulations are inoperative with respect to the marshlands within the boundaries of the Town. The appellant did not seek an order for costs on the appeal. Hallett, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A. C.A. No. 122425 NOVA SCOTIA COURT OF APPEAL BETWEEN: TOWN OF WOLFVILLE ) Appellant ) - and - ) REASONS FOR ) ) JUDGMENT BY: BISHOP-BECKWITH MARSH BODY ) and GRAND PRÉ MARSH BODY ) HALLETT, J.A. ) Respondent ) ) ) ) ) ) )