The hearing for an appeal decision with the Assessment and Planning Appeal Tribunal for a lobster holding facility in Chamcook was held in Saint Andrews on Tuesday.
The appeal application comes after the Town of Saint Andrews planning advisory committee revoked a prior decision to allow Sistansisk (St. Mary’s) First Nation – based in Fredericton – to build a 7,000-square-foot live lobster holding facility back in 2022.
It received the original approval through the Southwest Regional Service Commission – but faced an appeal filed by nearby residents – which saw it sent back to the Town of Saint Andrews PAC by the tribunal under new jurisdiction following municipal reform.
The appeal was filed because residents felt the notice about the facility was not sent out wide enough. The notice was issued to residents within 200 metres. It also said not enough information was provided.
Lawyers representing the Indigenous community argued at the hearing Tuesday there was a misapplication by the PAC board – who failed to properly address the recommendations of planning director Alex Henderson in the rationale for revoking the previous decision.
The town’s and legal counsel for resident Gayle Read argued they felt that the planning advisory had provided adequate rationale behind its decision including following the rules and procedures of the planning act.
Testimony heard
Alex Henderson, who works with the municipalities through the southwest RSC, was the first to deliver testimony.
He said the original PRAT approved the decision, subject to terms and conditions. In August 2023, an appeals tribunal sent the decision back to PAC, however, this time under the Town of Saint Andrews, due to the municipal reform amalgamation.
“I was tasked with addressing these issues,” Henderson told the tribunal.
Henderson said his role is simply to help provide recommendations that fall in line with the Community Planning Act and, in the case of Chamcook, the Chamcook Community Planning Act.
He told the tribunal that it was always ultimately up to the PAC to decide whether to permit the facility. However, it was his recommendation was it move ahead with the 12 terms and conditions – relating to odor mitigation, light pollution, waste-run, and traffic, among others.
Sistansisk’s lawyer Jennifer Ingraham asked Henderson during questioning whether the applicant was agreeable to meeting the conditions outlined by his report, to which he said they were.
New information was presented, Henderson explained, about concerns raised by the Department of Transportation and Infrastructure district engineer about the road width and weight – but that the town has no jurisdiction over provincial roads.
He said the applicant did offer to use cube vans to mitigate the concern about the weight restriction.
Henderson did say if the facility was not housing “live” lobster, this process would not be required and a permit would have simply been issued.
He said if nothing changed about the application, he would make the same recommendation to allow the facility should it come up today.
Town of Saint Andrews chair Jill Stewart also testified at the hearing. She told the appeal board she does not have a vote in the process – but only votes in the event of a tie.
During her testimony, she told the tribunal how the meetings unfolded, including that the first meeting was extended to allow everyone who was present at the meeting to speak, including people outside the required polling area for the property.
She said that the second meeting, which occurred in March 2024, was more pointed, adding committee members had done their own research about the impacts of similar facilities.
Stewart said Coun. Anette Harland ultimately made the motion to revoke the lobster holding facilities before approval.
“They do not believe that this is the right location for this development. They have identified very clear concerns and fears,” said Harland at the meeting in March. “I don’t believe that this variance application with 12 terms and conditions is similar to or compatible with light industry.”
Marie Olson-Cuthbertson, a lawyer representing Sistansisk, questioned where Henderson’s 12 recommendations were considered in the motion to revoke the license during Stewart’s testimony. She said the staff report was not followed.
Fred Welsford, who represented resident Gayle Reed, also questioned Stewart, and listed several reasons within the motion that PAC revoke the approval, including with 1-kilometre radius of 67 homes, no other light industrial in the area, the measures would mitigate not indicate the concerns of smell and light pollution, significant order and possible discharge into the Chamcook Bay, and safety of people who live there including children, among several others.
Maintaining rural character
The biggest point of contention, throughout the testimony, was the balance of light industrial use impacting the rural character of the Chamcook area.
Light industrial is included in the community planning act for the Chamcook area.
In Part B(j), it says “to encourage the development of non-polluting light industrial uses within the area.” It goes on to say in another section, that light industrial should be “it is a policy to only consider light industrial use that is non-polluting and non-harmful to the environment.”
It adds in the same section, industry should be prohibited in environmentally sensitive areas.
Any light industrial operation would also be subject, according to the act, a-five metre landscape buffer. During the hearing on Tuesday, it was explained that the buffer was extended to seven metres.
It was also noted that several children, about nine or 10 — who are school-age — would be required to walk along the road used by the facility’s vehicles to get to their homes.
No area wide enough for the school bus to turn around, meaning it cannot bring the children directly down the road.
Both the legal counsel for the town and Reed argued that the light industrial use did not fit in this area, despite its allowance in the Community Planning Act for the Chamcook area.
Closing arguments
Both sides were able to provide closing arguments about whether the appeal should be allowed.
Andre Daigle, the lawyer for the Town of Saint Andrews, argued several previous cases that supported the PAC decision.
He said these decisions do not exist in a vacuum and PAC has the authority to decide whether each application or variance fits within an area.
Ultimately, he said there was no misapplication and that the PAC made its decision based on planning, public input, regulatory input, and the applicant’s feedback.
“When they look at the reasons, it is well documented,” he said of the rationale behind the revocation, adding the decision is coherent.
He said not agreeing with the decision does not equate to misapplication.
Reed’s attorney Fred Welson also said the decision was sound and rested with local people. He quoted Henderson’s previous testimony saying “local people making local decisions.”
In the end, Marie Olson-Cutherbertson said the PAC failed to consider the planning directors recommendations, which mitigated the concerns raised by both the public and DTI’s district engineer.
She also argued the net for public feedback may have been cast too wide, allowing most anyone to object to the facility. She said the decision had to following natural justice and procedural fairness.
That principle is a legal one means administrative proceedings should be conducted in a manner that is fair to the involved parties. It includes the right to adjudicators free of bias.
Sistansisk First Nation said in a statement, it was limiting public comment as the process unfolds.
“We would like to reiterate that Sitansisk remains committed to pursuing all available methods to advance this project in a way which can prove to be beneficial to all stakeholders,” the statement said. “As the first peoples of these lands, we believe there should be a rational solution which permits us to utilize our lands, both in treaty and fee simple terms, to benefit our community without unduly disrupting nearby land use.”
The tribunal, chaired by Michel Leger, said it would issue its decision in “due course.” It will ultimately decide whether the appeal could go before the Court of King’s Bench.
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