Bancroft v. Nova Scotia (Lands and Forestry) 2021 NSSC 234
August 1, 2021
To the people of Mi’kma’ki (Nova Scotia):
We would like to extend our gratitude to the applicants—respected wildlife biologist Bob Bancroft and local environmental group Eastern Shore Forest Watch Association—for standing up for Nova Scotia’s parks and protected areas. Lawyer Jamie Simpson, who represented the applicants, presented a compelling case predicated on the need for transparency and procedural fairness—something that the government should owe its citizens.
While the court decision did not grant the applicants the relief they were seeking, the Honourable Justice Brothers recognized significant points in the applicants’ case, which should hearten the citizens of Nova Scotia, who continue to fight their own government in order to protect the environment.
In paragraph 175, Justice Brothers characterized the government’s misrepresentation of Owls Head as “troubling.” In paragraph 186, the judge went on to find:
“Neither the Province’s previous misrepresentations about Owls Head, nor its history of public consultation in relation to parks and protected areas, entitles the applicants to be consulted before decisions are made about the protection or sale of Owls Head Crown Lands.” (Our emphasis in bold)
And yet, the introduction to Our Parks and Protected Areas: A Plan for Nova Scotia says,
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.
As Minister of Lands and Forestry, Iain Rankin disregarded decades of public consultations and numerous plans to protect the area.
Thousands of citizens across Nova Scotia recognize the inherent injustice of this situation.
The government’s willingness to sacrifice a biodiverse park property without any consideration for the site’s numerous conservation values is irresponsible. That our elected officials decided to remove Owls Head Provincial Park from Our Parks and Protected Areas Plan without consulting with—or even notifying—the public was utterly undemocratic.
The applicants’ case depended in part on the Nova Scotia Supreme Court “being the first in Canada to recognize the existence of the “public trust doctrine” at common law. The public trust doctrine, an established legal principle in American environmental law, posits that the state holds certain “public trust resources” in trust for the benefit of the public and for the public use.” (Paragraph 92)
Without such legal protection, our parks and protected areas are in jeopardy. Across the province, provincial parks, nature reserves, and wilderness areas awaiting designation (legal protection). When the applicants submitted their brief, nearly half of Nova Scotia’s 206 provincial parks were awaiting designation—meaning that they had the same status that Owls Head Provincial Park did before it was secretly delisted. Citizens, scientists, and environmental groups are concerned that the government’s willingness to secretly delist & offer to sell Owls Head Provincial Park is the beginning of a very slippery slope.
Support for the “Save Owls Head” movement continues to grow each day. The Facebook group that sparked the resistance is over 9,000 members strong. The online petition to save Owls Head Provincial Park just surpassed 30,000 signatures. Back in 2018, the provincial government agreed to delay consultation with the Mi’kmaq at the behest of the prospective developer. Now, Mi’kmaw Grandmothers (community leaders) are insisting on meaningful consultation and the protection of the park.
When governments won’t do what’s right, it’s up to the citizens to demand change. Justice Brothers wrote, “[I]f a remedy is sought by the public, the proper recourse in our constitutional democracy is not through the courts, but at the ballot box.” (Paragraph 5)
This fight will continue at the ballot box; our protected areas depend on it.
Save Owls Head Provincial Park Facebook Group
Judicial Review Application Decision: Bancroft v. Nova Scotia (Lands and Forestry) 2021 NSSC 234