Applicants’ Brief

PRE-HEARING BRIEF SUBMITTED ON BEHALF OF THE APPLICANTS WITH RESPECT TO THEIR APPLICATION FOR JUDICIAL REVIEW

Robert Bancroft and Eastern Shore Forest Watch Association (Applicants)

Nova Scotia Minister of Lands and Forestry, and The Attorney General of Nova Scotia, Representing Her Majesty the Queen in Right of the Province of Nova Scotia (Respondents)

and Lighthouse Links Development Company (Intervenor)

The following is an excerpt from the Applicants’ Brief. You can read the brief in full, here or at the bottom of this page.

OVERVIEW

1. I am counsel for the Applicants, Robert Bancroft and Eastern Shore Forest Watch Association. Both of the Applicants submit that they are public interest litigants for the purpose of these proceedings.
   
2. The Applicants in this judicial review challenge the following decisions:
   
   a.the Minister of Lands and Forestry and Treasury and Policy Board’s March 13, 2019 decision to remove Owls Head Provincial Park from the Parks and Protected Areas Plan of 2013; and
   
   b.the Minister of Lands and Forestry’s December 16, 2019 decision to execute a Letter of Offer with Lighthouse Links Development Corporation in order to sell the Owls Head Crown land for private development into resort residences and two or three golf-courses.
   
3. If the decision to remove Owls Head Provincial Park from the Parks and Protected Areas Plan is held to have been made solely by the Treasury and Planning Board, then, in the alternative, the Applicants challenge the Treasury and Planning Board’s decision to remove Owls Head Provincial Park from the Parks and Protected Areas Plan.
   
4. In brief, the Applicants submit that the Minister erred in these decisions as follows:
   
   a. The Minister had a duty of procedural fairness to inform and consult the public before he made the decision to request removal of Owls Head Provincial Park from the Parks and Protected Areas Plan, and before he executed the Letter of Offer to sell these public lands for private development; this duty is grounded in part in the trust-like nature of the Crown’s ownership of public lands with identified public values;
   
   b. The Minister also breached this procedural fairness duty by failing to provide justification for these decisions; and
   
   c. The Minister’s decisions were unreasonable because he failed to consider relevant factors and fettered himself, contrary to the implied relevant factors in the Crown Lands Act and Endangered Species Act, to a single outcome, that is, delisting Owls Head Provincial Park and negotiating its sale to a private developer.
   
5. The Applicants submit that the Record and other evidence before this Court will demonstrate that the Owls Head Crown lands have been recognized by the public and identified by government (provincial and municipal) as a Park, and that these lands have been represented to the public as a Park for several decades. The evidence will also show that the Province’s selection of Crown lands to be managed as Parks and other protected areas flows, in part, from public consultation.
   
   
6. Owls Head Provincial Park, notwithstanding its representation to the public as a Park, did not receive formal designation as a Park under the Provincial Parks Act. Some 100 other Provincial Parks (approximately half of Nova Scotia’s Provincial Parks), represented to the public as provincial parks, fall into this category. In other words, approximately half of Nova Scotia Provincial Parks, absent designation under the Provincial Parks Act, are similarly vulnerable to secret negotiations for their sale to private interests.
   
   
7. On this basis, the Minister’s involvement with Lighthouse Links over some three years concerning the Owls Head Crown lands, culminating in an executed Letter of Offer with Lighthouse Links Development Company, was fundamentally unjust because the relationship, negotiations, and outcomes were cloaked in secrecy. The public was not informed of the request to remove Owls Head Provincial Park from the Parks and Protected Areas Plan, nor of the Treasury and Planning Board’s decision to grant the Minister’s request, nor of the proposal to turn the Park into several private golf courses and a resort community, and nor of the Minister’s negotiation and execution of the Letter of Offer for the sale of these public lands.
   
   
   8. The Applicants acknowledge that they are relying, in part, on a novel ground of judicial review – that is, a duty of procedural fairness extended to the public concerning public lands with identified public purpose, specifically, conservation value.

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