Church in legal tussle with Nova Scotia Power over flooded land at Miller Lake

The United Pentecostal Church of Nova Scotia is suing Nova Scotia Power for compensation in a land dispute with roots stretching back to the 19th century. 

An expired lease from 1883 is at the heart of a struggle over a large tract of flooded property near Fall River at the north end of Miller Lake. 

The flooded lands are approximately 19.5 hectares in size, or roughly 29 regulation soccer fields. 

"I just prayed that they would make some kind of a settlement, and we would say, 'OK, let's settle this and be over with it,'" said Rev. Dean Dickenson, superintendent of the church. 

"We'd tried every other action, so let's see where we can go with legal action on it. So we went with legal action."

In 1883, a former landowner signed a 99-year lease with Nova Scotia Light and Power, a corporate ancestor of Nova Scotia Power. 

The agreement allowed the power company to build the 0.5 MW Fall River hydro system, which has dams and spillways at both Miller Lake and nearby Soldier Lake.

It granted the utility the right to increase the size of Miller Lake, flooding parts of the property. 

That created Pentecostal Island, where the church built a dining hall and dorms for summer camps, plus off-grid cabins for church members. 

Congregants own and maintain the cabins, while the church owns the land. 

Pentecostal Island is connected to the mainland by a causeway. The remainder of the church property is on the mainland, accessible from the island by a second causeway and bridge.

That's where church members can keep camping trailers, and where the church built its tabernacle, a warehouse-like building with huts attached that act as camp dormitories.

"We're very grateful that we have the camp, and we certainly are here to help young people and children and families," Dickenson said. "And we have been a blessing over the years to many different people. So I think it's a very needful thing, and we probably will continue to go on whatever happens."

Church looks for legal intervention

The United Pentecostal Church of Nova Scotia purchased the property in 1963, complete with the lease allowing the power utility its flowage rights.

Court records associated with the church's lawsuit spell out an intermittent negotiation with Nova Scotia Power since that lease expired in 1992. 

"Nova Scotia Power insisted they sign away their rights without compensation," said lawyer Bruce MacIntosh of the firm Mac, Mac & Mac, which is acting for the church. 

MacIntosh said the offers drafted by Nova Scotia Power also include one-sided protections for Nova Scotia Power, including "to indemnify the power corporation if anything goes wrong."

"We've taken the view before the courts that that's not reasonable, and we're seeking the intervention of the court to have this issue resolved," MacIntosh said. 

The church is asking the Nova Scotia Supreme Court to rule that the flooded land was, in effect, expropriated, a little-used legal remedy.

The church suffered a legal setback in October when the court declined to append the expropriation aspect to the lawsuit, a decision which remains open to appeal. 

MacIntosh said the lawsuit against Nova Scotia Power for trespassing continues.

"This case has fairness writ large all over it.… I have rarely encountered such an unfair situation as a body like Nova Scotia Power covering up our client's lands and refusing to acknowledge they have effectively taken it by expropriation. It really is quite unprecedented in my experience," he said. 

MacIntosh said the church has estimates of what the flooded land could be worth, but is not sharing them.

Nova Scotia Power declined to comment on the case while it's before the courts. 

Financial compensation, not land recovery

Court records show that at various times during negotiations Nova Scotia Power has raised the possibility of lowering the lake level at Miller Lake between one and three metres.

According to emails quoted in an affidavit filed with the court by Dickinson, a Nova Scotia Power representative emailed 12 colleagues in March of 2007 suggesting, "That we make personal contact with the remaining property owners around the lake to advise them that given the situation it may be necessary to lower the water levels in Miller Lake in the near future."

But another NSP colleague replied six days later saying, "It is one thing to point out to the Church the impacts of taking down the water levels as part of a negotiation but it's another thing to start talking to other residents about dropping the water (something we know will never happen) before talking to the leadership team."

The church is clear that recovering land by lowering the lake levels is not the solution it wants.  

"We're trying to get compensation for the land that they've covered," Dickinson said. 

"It would appear to us sometimes they just want to use it without ever giving us anything," he said.