First things first: what does “delisted” mean?
To try to sell the public park to a private developer, the government delisted Owls Head Provincial Park by removing it from Our Parks and Protected Areas Plan in March of 2019. Up until this point, the government had already orchestrated three years of secrecy, which would have been even longer if not for the whistleblower.
Nova Scotians remain concerned that the former government secretly delisted Owls Head Provincial Park without scientific review, public notice, or public consultation.
“The first step that must be taken before the transaction can proceed is DNR obtaining authorization from Cabinet to remove the Crown lands from the Parks and Protected Areas Plan (PAPA). The PAPA was issued by the Minister of Environment and the Minister of Natural Resources in 2013 and lays out the commitment by the Province to work towards protecting lands identified in the Plan. All other processes are subject to this step being successfully completed.”The Honourable Margaret Miller (then Minister of Natural Resources) to Mr. Beckwith Gilbert in 2017
Why did the government not inform its citizens?
Even though all Nova Scotians are stakeholders of the Parks and Protected Areas Plan, the government intentionally kept them in the dark. The McNeil government orchestrated more than three years of secrecy at the behest of the prospective developer. (And that three years likely would have been even longer, had it not been for a very important whistleblower and freedom of information requests.)
The applicants in the court case emphasize that this was “fundamentally unjust because the relationship, negotiations, and outcomes were cloaked in secrecy.”
In an unprecedented move, the McNeil government scrubbed its own websites of references to Owls Head Provincial Park after Michael Gorman broke the story of the secret delisting and proposed sale. The former government surreptitiously removed the Owls Head Provincial Park Protection Values Sheet. The government also removed Owls Head Provincial Park from the online Parks and Protected Areas map.
“The provincial government claims that Owls Head was labelled a provincial park as the result of a clerical error. If so, the error went uncorrected for about 45 years. Until a couple of weeks ago, Owls Head Provincial Park had a page on the provincial government’s website, but that’s been scrubbed.”Jim Vibert: Owls Head becomes ground zero of land protection battle with province
Lack of public consultation
At the December 5, 2018 meeting requested by [lobbyist] Michel Samson, notes taken during the meeting indicate that those at the meeting determined that there would be “No Public Consultation until after decision re PAPA,” and that “Aboriginal Consultation,” likewise, would not be initiated until “after the withdrawal from PAPA.”Applicants’ Brief (Paragraph 186)
Our Parks and Protected Areas Plan was built on years of consultations with citizens, environmental organizations, industry representatives, and the Assembly of Nova Scotia Mi’kmaq Chiefs. So it’s particularly unfair to Nova Scotians that strengthening the legal status of a park awaiting designation involves public consultations and scientific assessment, but erasing its legal status does not.
The fact that the McNeil government only consulted with the prospective developer—and not the public —also contradicted the spirit of Our Parks and Protected Areas Plan:
The plan’s success has been authored by you: Nova Scotians committed to protecting and conserving our beautiful province for future generations. It builds on extensive consultations over the last several years involving members of the public and Nova Scotia’s Mi’kmaq community, which helped identify potential lands for protection, and the legislative and policy initiatives necessary to ensure that future generations will also enjoy them.Our Parks and Protected Areas: A Plan for Nova Scotia (page 5)
“Most folks living near protected lands will likely be surprised to learn that they aren’t already protected,” wrote Jim Vibert in the Chronicle Herald.
At the time that the applicants’ submitted their brief, nearly half of what Nova Scotians consider provincial parks weren’t legally protected parks at all. In June of 2020, the Chronicle Herald reported, “Of 206 provincial parks in Nova Scotia, 102 are awaiting official designation.” In many cases, citizens have no idea that these “provincial parks” aren’t formally protected. When we also consider the nature reserves and wilderness areas awaiting designation, we realize that there are even pending and proposed areas that are protected in name only.
Nova Scotia Supreme Court Justice Kevin Coady wrote that the public “had every reason” to believe that Owls Head Provincial Park was a designated provincial park.
“The evidence on this Motion clearly establishes that Owl’s Head was portrayed to the public as a Provincial Park. Government documentation and maps, going back as far as 1978, refer to the area as “Owl’s Head Provincial Park”. Further, it was managed by Lands and Forestry to maintain its reserve status. The public had every reason to assume Owl’s Head was a Provincial Park and, therefore, attracted protections not available on Crown lands.”Bancroft v. Nova Scotia (Land and Forestry) 2020 NSSC 214: Interlocutory Decision, Page 3
There is no practical difference discernible to the public between the Department’s representation and management of Provincial Parks designated by regulation and Provincial Parks that are parks in name, management, and use only.Applicants’ Brief (Paragraph 129)
How can we ensure this never happens again?
Our legal system is a combination of common law and civil law. Thus, there are two different ways that we can resolve this legal loophole:
1. Civil law: By introducing and passing a bill that addresses the underlying issue(s)
2. Common law: By setting a new precedent through the courts
The Owls Head Act, introduced by the NDP, would have dealt with this very issue. Unfortunately, the bill was defeated by the PC Party. However, the Houston government could still resolve this issue through legislative means, rather than forcing the applicants to take the province back to court.
Judicial review & appeal
The McNeil government’s decision to secretly delist the park prompted applicants Bob Bancroft and Eastern Shore Forest Watch Association to take the case to the Nova Scotia Supreme Court (and now the Nova Scotia Court of Appeals) on behalf of concerned Nova Scotians.
“The underlying question in this appeal is whether Nova Scotians ought to be informed before the government makes decisions affecting the fate of ecologically important lands, especially those lands that have been identified as protected. We believe the answer is yes and that the courts play an inherent role in promoting fair government decision-making.”Jamie Simpson, Juniper Law
While the judicial review application decision did not grant the applicants the relief they were seeking, the Honourable Justice Brothers recognized several significant points in the applicants’ case.
If Owls Head had been formally designated as a provincial park, as was represented to the public, any change to its status as protected land would have required an order-in-council, and would therefore have been 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.Judicial Review Application Decision, Paragraph 2
In July, Nova Scotia Supreme Court Justice Christa Brothers ruled that there is “no recognized common law duty of procedural fairness owed by the Crown to the public at large.” But the applicants believe it’s time for that to change.