The Chronicle Herald
August 7, 2021
Republished in full with the author’s permission
Originally published here
Whatever your stance on the proposed Owls Head golf resort, there was some pretty audacious jiggery-pokery in that whole matter, which should raise red flags for anyone who is a fan of democracy.
Owls Head — a 285-hectare piece of Crown land on the Eastern Shore — was secretly removed by the provincial Liberals from a list of lands awaiting protection status when the government received a development proposal from an American group.
It is home to a rare ecosystem and the endangered Piping Plover.
There was no announcement of a conditional agreement the Liberal government signed with the developers, and no opportunity for public input. The information only came to light when a CBC reporter dug it out with a freedom-of-information request.
This secrecy upset people who pointed out that Owls Head is an ecological treasure slotted for protection. They asked the courts to review the way the government delisted the land.
On July 26, the Supreme Court of Nova Scotia released a decision that denied that judicial review.
The first red flag for the democracy fan is that Owls Head is Crown land and therefore is owned by all Nova Scotians. It would seem reasonable and — I daresay — democratic to have had some “heads up” on this transaction. No?
Well, no, actually. There wasn’t.
The second red flag appears when you consider the government has been misrepresenting the status of Owls Head, calling it a provincial park reserve.
In other words, it was all very nice to have Owls Head displayed on the roster when the government was pushing its goal to protect 12 per cent of the province’s landmass.
But as soon as a developer comes along with a proposal for the listed parkland — Poof! Gone.
This interpretation and the word “misrepresentation” are not mine. They come from no less an authority than provincial Supreme Court Justice Christa Brothers who delivered the July decision. She labelled this as “troubling.”
Troubling, indeed, if you’re a fan of democracy.
The third red flag was raised when we learned that former Liberal cabinet minister Michel Samson appeared on the lobbyist registry in 2018 pushing for “acquisition of & access to Crown land” for the Owls Head developers.
Not outright illegal, but iffy optics there.
In her decision, Justice Brothers found that the government was within its rights to delist Owls Head in the manner it did.
If people think there is something wrong with this, she advised, they should take their grievance to the ballot box.
The challenge, launched by retired provincial biologist Bob Bancroft, argued that the government has a duty to recognize the biodiversity and rare ecology of Owls Head lands.
The argument is predicated on the notion of the “public trust doctrine,” a legal principle established in American law which says the state has a responsibility to protect public resources for the benefit and use of the public. As yet, the public trust doctrine has not been recognized by Canadian courts.
The group advocating for the protection of Owls Head fears that this decision puts at risk some 200 other provincial parks presently listed for official protection.
Let’s say another 200 developers happened to come along with proposals for listed Crown lands — that means the government could delist without initial public consultations.
Of course, none of this means the Owls Head development is a done deal. In order to sell, the government will have to engage in public consultations, including with First Nations. Environmental assessments and rezoning will also be required.
It is important to separate the proposed development from the jiggery pokery around the delisting of Owls Head.
There are plenty of privately held lands in Nova Scotia, some of which would make fine golf courses.
This is about transparency. When a government sneaks around in the shadows and does controversial things for one project, it is probably willing and able to do the same again.
And this is a big problem, if you’re a fan of democracy.