Francis Campbell
Saltwire/The Chronicle Herald
December 13, 2022
Full article published here

The Nova Scotia Court of Appeal has dismissed as moot an appeal by wildlife biologist Bob Bancroft and the Eastern Shore Forest Watch Association in the Owls Head case.

… Lawyer Jamie Simpson argued in the initial application for judicial review that the Forest Watch had been denied procedural fairness because the public was not consulted about the removal of Owls Head from the parks and protected areas plan.

Bryson noted that since the appeal started, Lighthouse Links, owned by Gilbert, has withdrawn from its letter of offer to purchase the properties with a plan to develop at least one 18-hole golf course there. Further, in June of this year, the Progressive Conservative government issued an Order in Council to designate Owls Head as a provincial park.

“The law with respect to procedural fairness is well-settled and the issue arising in this case has not recurred and may never recur,” Bryson wrote. “ Accordingly, there is no animating reason to expend scarce judicial resources to opine in a factual vacuum.

“By acceding to the appellants’ request to extend procedural fairness to include a public interest doctrine, the court would be importing an ill-defined concept largely unknown to our law, of uncertain ambit and application, in a factual vacuum owing to the absence of an existing controversy.”

“We were hopeful that the courts might see this as one of those rare circumstances where they look at the underlying issues regardless and realize that there really is a gap in the common law when it comes to procedural fairness in respect of valuable Crown lands.”

Lawyer Jamie Simpson

Simpson said his clients and many others from the beginning wanted to achieve the result of having the land in question designated as a provincial park.

“We certainly achieved that result,” he said.

Simpson said a threat of a similar delisting and sale of land proposed for protected designation happening in the future very much exists.

Despite the court’s contention that the “issue arising in this case has not recurred and may never recur,” a very similar situation could arise from a  proposal by Cabot Cape Breton, owners of two successful 18-hole golf courses in and near Inverness on the western side of Cape Breton, applying to the province to lease about one-third of the 275-hectare West Mabou Beach provincial park to develop a third 18-hole golf course in the same area.

Read the full article here.

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