The Department of Lands and Forestry’s decision to secretly delist Owls Head Provincial Park prompted applicants Bob Bancroft and Eastern Shore Forest Watch Association to take the case to court on behalf of concerned Nova Scotians.
This legal case has been generously funded by supporters of the Save Owls Head movement, who have contributed over $27,000 in order to have their voices heard by their government.
Applying for (and receiving) the time extension was the first step towards a judicial review. Justice Coady agreed that although the six-month window to file a judicial review had passed, “the secrecy of the decision precluded any member of the public from legally responding within the six-month window.” You can read Justice Coady’s decision here.
On August 18, 2020, the applicants filed an amended version of their initial request for a judicial review.
The amended petition challenges two different secret decisions by Lands and Forestry Minister Iain Rankin: the decision to de-list the park on March 13, 2019 and the decision to entertain a Letter of Offer with the golf course developer on December 16, 2019.Richard Bell, The Eastern Shore Cooperator
In their petition, the applicants’ first major claim is that Lands and Forest Minister Iain Rankin breached “procedural fairness” in several ways, such as failing to provide notice to the public that he was considering the delisting and Letter of Offer, or holding any public consultation on the two matters.
The second claim is that Rankin’s decisions on delisting of the park and the signing of the Letter of Offer were “unreasonable” because he failed “to provide justification” for his decisions.
To read the Applicants’ pre-hearing brief in full, click here.
The next phase of the case was the judicial review itself, which took place on April 1, 2021. It is uncertain when the Court will issue its decision.
The pre-trial brief submitted by Jamie Simpson argues that the “applicants were owed a duty of procedural fairness.”
There is an inherent sense of injustice that the matter at bar would attract a duty of fairness only if the decisions had affected private interests, given that this matter can only affect the public interests of those who care about Nova Scotia’s natural history and public parks […] The loss of a Provincial Park and 7.5 kilometres of public coastland to private ownership and the evident risk to the park’s ecological values elevates the duty of fairness. Furthermore, the Department’s long history of consulting the public when making decisions to create parks also elevates the duty of fairness.Applicants’ Brief (Paragraphs 126-127)
The Decision Maker
The applicants’ brief points out that the Minister of Lands and Forestry is ultimately the “Administrative Decision Maker,” based on the Crown Lands Act, the Endangered Species Act, and the Provincial Parks Act.
The Treasury and Policy Board (T&PB – a committee of the Executive Council) issued the minute letter that removed Owls Head Provincial Park from the Parks and Protected Areas Plan. Nonetheless, the role of the T&PB was perfunctory in that the minute letter was not issued ‘out of thin air’ but rather at the request of the Minister [the Honourable Iain Rankin] who is responsible for the management and control of Crown lands and provincial parks. But for the Memorandum to Executive Council (MEC) requesting the removal of Owls Head Provincial Park, such a minute letter would not be issued by the T&PB.Applicants’ Brief (Paragraph 112)
What will happen if the applicants win the court case?
It’s difficult to predict what might happen following the court case. If the applicants win, then Justice Brothers will hopefully order the Department of Lands and Forestry to remake its decision, taking into account the findings of the Court.
What will happen if the applicants lose the court case?
Again, it’s difficult to predict what might happen if the applicants lose the court case. However, the Applicants would have the option to appeal the Court’s decision.
- Justice Coady’s Decision on the request for a time extension (Granted! August 5, 2020)
- Justice Chipman’s Decision on the Applicants’ Motion (Dismissed: December 16, 2020)
- Record on Judicial Review (Province, Record)
- Applicants’ Brief (March 1, 2021)