August 6, 2021
Terry Davidson
The Lawyer’s Daily
Originally published here
A group of public interest litigants is considering appealing a Nova Scotia court’s decision not to intervene in a case where the province secretly arranged to sell what had long been considered protected provincial parkland.
In the Supreme Court of Nova Scotia’s July 26 ruling in Bancroft v. Nova Scotia (Lands and Forestry) 2021 NSSC 234, wildlife biologist Robert Bancroft and the Eastern Shore Forest Watch Association (ESFWA) accused the Province of lacking procedural fairness in its pending conditional sale of Owls Head — Crown land that for more than 40 years had been treated like a public park.
… The written decision notes that if the land “had been formally designated as a provincial park, as was represented to the public,” any change to its status would have been made public knowledge.
“Ultimately, the government’s own misrepresentation of the status of the lands shielded its actions from scrutiny and allowed purportedly protected lands to be considered for sale, out of the public eye,” wrote the court.
… In their public interest argument, the applicants asked the court to “be the first in Canada to hold that the government owns property in trust for the public, and that it owes the public a duty of procedural fairness when making decisions about lands that have been identified as having public value beyond the value of Crown lands generally …”
An implementation of this “public trust doctrine” would have meant that lands like Owls Head could not be sold without public consultation.
