Information commission investigator criticizes N.S. government’s attempts to keep email contents secret
September 24, 2021
Originally published here, shared on this website with the author’s permission
As Nova Scotia’s former Liberal government worked in late 2019 and early 2020 to downplay scathing public criticism of its secret plan to potentially sell Owls Head provincial park to a would-be golf developer, then Lands and Forestry minister Iain Rankin and other officials argued the site wasn’t as significant as other land awaiting legal protection.
But new documents received by CBC through access-to-information laws show that behind the scenes, staff within the Environment Department worried that such messaging was incomplete and risked undermining a plan that had been years in the making and included consultation with thousands of people.
“Some of the messaging we have seen from our department and [Lands and Forestry], and more recently from individual MLAs in correspondence with their constituents, has implied that Owls Head is not considered to be an area of high biodiversity value, nor a priority for protection, compared to other sites being considered/sites in the plan,” Kermit deGooyer wrote to Andrew Murphy in a Feb. 3, 2020, email.
“These claims lack context and leave the impression that staff share this view despite previous staff input to the contrary and new information from L&F and non-government researchers that speak to the site’s unique ecology.”
DeGooyer, a protected-area planner for the province, went on to tell Murphy, the executive director of sustainability and applied sciences for the Environment Department, that he was concerned the messaging from the Liberals called into question the integrity of the Parks and Protected Areas Plan, “which was the product of many years of scientific analysis followed by multiple rounds of planning, public consultation, and refinement…”
The Liberals removed the 285 hectares of Crown land in Little Harbour, N.S., from the Parks and Protected Areas Plan in March 2019 to clear the way to enter into negotiations to potentially sell it to a private developer who wants to merge Owls Head with land he already owns to build a golf resort, a process that remains ongoing.
The decision and proposed development weren’t made public until reporting by CBC in late 2019. At the time, Rankin said Owls Head wasn’t a high priority for legal protection relative to other properties the government was considering as it worked toward a goal of protecting 13 per cent of all Nova Scotia land.
“There isn’t high biodiversity value when you compare [it] to other pieces of land that we’ve advanced [for legal protection],” Rankin said in a December 2019 interview.
DeGooyer’s email to Murphy, however, shows that staff at the Environment Department disagreed. He wrote that the process used to identify Owls Head for protection “included a systematic analysis of all Crown lands to identify those with the highest conservation values.”
Government documents and scientific researchers have pointed out that the land includes unique boreal and temperate plants and lichens, and is home to the “globally rare coastal broom crowberry heathland ecosystem.”
“Under the criteria [the Environment Department] has used to identify and prioritize lands for protection, an area supporting a globally rare ecosystem would rise to the top tier of sites meriting legal protection on the basis of its biodiversity value,” wrote deGooyer.
In an interview Thursday, Rankin said the concerns expressed in the email were never brought to his attention. As a minister and later premier, conservation was a key passion for him, he said.
The Liberal leader said that as he worked toward his ministerial goal of protecting 13 per cent of land in the province, department staff put forward prioritized properties to meet that target.
“Staff put together a proposal to bring into cabinet and Owls Head was never on that priority list,” he said.
Department withheld information important to the public
The email is part of a broader freedom-of-information package CBC received in April, but much of deGooyer’s message was redacted. The government held back the information on the basis that it would reveal advice, recommendations or draft regulations.
CBC successfully applied to the provincial information and privacy commissioner’s office to have an expedited appeal heard on the grounds the matter is of a high public interest and waiting the multiple years appeals normally take to be processed could result in the land being sold before the public knew the contents of the email.
The commissioner’s office agreed and, earlier this month, recommended the Environment Department turn over the documents. On Tuesday, the department complied.
In his written opinion, file investigator Darrin White took issue with the department’s decision to hold back the documents in the first place.
“The public body failed to properly exercise its discretion and, knowing that public interest and scrutiny was high, did, in fact, use its discretion as a means to withhold information it knew was important to the public.”
White wrote that the act was written to protect the process used to make government decisions, but it also “clearly” articulates “that the background material (objective facts and history) underlying those decisions are not protected from disclosure.”
The department appeared to recognize the importance of the information held back because it cited that as a reason for the redaction, he wrote.
“The public body cannot be the sole determiner of what is important to the public and what is not. No part of the act indicates that this is the case.”
Public outrage about the government’s decision in 2019 was swift, with environmentalists, scientists and others calling for the plan to be halted. Protests and petitions were organized and signs about the issue popped up across the province. Others, meanwhile, have welcomed the potential economic development the project could create.
Rankin, who would go on to become premier before his government was defeated in last month’s provincial election, maintained in 2019 and more recently that it is not a certainty the land will be sold. Even if the company, Lighthouse Links, satisfies all the requirements of its letter of offer, it’s still at the discretion of the provincial cabinet to decide whether to sell Owls Head.
“I would not support a project there unless it proved to be feasible without any long-term impact to a sensitive ecosystem.” he said Thursday.
A local group and a former biologist for the province took the Liberals to court seeking a judicial review of the government’s decision. Although a Nova Scotia Supreme Court judge ruled against them in July, the window to appeal remains open until early next month.
The current natural resources minister, Tory Rushton, has said he’s reviewing the way the Liberals handled the file, but he’s also waiting to see whether there will be an appeal to the judicial review decision.
FOIPOP investigator’s opinion21-00245-2021-09-08-investigators-opinion