“Applicants were owed a duty of procedural fairness”

An Excerpt from the Applicants’ Pre-Trial Brief

Respected wildlife biologist Bob Bancroft and local environmental group Eastern Shore Forest Watch Association are the applicants in the upcoming legal case, which will be heard on April 1, 2021. Represented by lawyer Jamie Simpson of Juniper Law, the applicants have submitted their pre-trial brief about the secret delisting and Letter of Offer to sell Owls Head Provincial Park. You can read their brief in full, here.

The following excerpt can be found on pages 25-28 (paragraphs 122-136):

G. Applicants were owed a duty of procedural fairness

122. Procedural fairness is “a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. […]” (Dunsmuir v New Brunswick, 2008 SCC 9, at para. 79). The majority in Dunsmuir went on to quote Le Dain J. (at para. 87):

This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the right, privileges or interests of an individual… (Cardinal v Director of Kent Institution, [1985] 2 SCR 643, at p 653)

123. Procedural fairness is not owed in respect of every government or tribunal decision. Only decisions that are administrative in nature and that affect the rights, privileges or interests of an individual attract a duty of procedural fairness (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, [Baker], at para. 20, in reference to the above quote from Cardinal).

124. The extent of the duty, when it is owed, varies according to the circumstances of the matter, and is evaluated through the lens of the following (non-exhaustive) factors: (1) the nature of the decision to be made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself (Vavilov, supra, at para. 77, referencing Baker at para. 23-27).

125. The Courts have not yet acknowledged nor denied that an administrative decision-maker may owe a duty of procedural fairness to a public interest litigant. Suspending this evident hurdle for a moment, the applicants otherwise cross the procedural fairness threshold.

The decisions to remove Owls Head Provincial Park from its protected status and to execute a letter of offer for its sale are administrative decisions, as described previously. As representatives of citizens concerned for the state of Nova Scotia’s environment, and for the conservation of Owls Head specifically, the applicants are deeply impacted by the potential loss of a globally-rare ecosystem, endangered species habitat, and public access to this coastal land.

“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.”

126. L’Heureux-Dubé J. emphasized that underlying the procedural fairness factors is the need to ensure that administrative decisions are made using a “fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker” (Baker, supra, at para. 22). 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.

127. Lifting the public/private interest barrier for a moment, the Baker factors suggest that the Applicants were owed a moderate level of fairness. The decisions were not adjudicative in nature and the Crown Lands Act gives the Minister discretion in managing Crown lands, militating in favour of a relaxed duty of fairness. However, 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. As well, the Act offers no appeal procedure for such decisions.

128. The Applicants’ legitimate expectations that they would be informed and consulted before a park would be removed from the PAPA Plan and sold for private development further elevates the duty of fairness owed. The Applicants’ legitimate expectation is based on the following facts.

“The Applicants’ legitimate expectations that they would be informed and consulted before a park would be removed from the PAPA Plan and sold for private development further elevates the duty of fairness owed.”

129. First, the Applicants (and the Department itself) believed that Owls Head Provincial Park was a park, as evidenced by the following:

a. The Department has produced numerous maps and other publications that represent the Owls Head as a Provincial Park. The PAPA Plan identifies Owls Head Provincial Park as an already existing provincial park.

b. The Halifax Regional Municipality produced a map that identifies Owls Head as a Provincial Park.

c. The Department of Lands and Forestry issued a permit enabling scientific research to take place on land, wherein the land was referred to as Owls Head Provincial Park. Such permits are not required for Crown land that is not protected in some manner.

Of the 206 Provincial Parks in Nova Scotia, approximately half of these are not designated as provincial parks by regulation, yet are presented to the public and are managed by the Department as Provincial Parks […] 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.

d. Of the 206 Provincial Parks in Nova Scotia, approximately half of these are not designated as provincial parks by regulation, yet are presented to the public and are managed by the Department as Provincial Parks. For example, Herring Cove Provincial Park is identified as a Provincial Park, yet is not designated by regulation. Pomquet Beach Provincial Park is identified as a Provincial Park, yet is not designed by regulation.

e. 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.

130. Second, the Applicants have a long history of participating in public consultation concerning the creation of parks, and the Minister explicitly emphasized in the PAPA Plan the role that public consultation plays in selecting Crown lands to be conserved. The PAPA Plan states, for example,

a. [The] plan’s success has been authored by you: Nova Scotian committed to protecting and conserving our beautiful province for future generations. It builds on extensive consultation over the last several years involving members of the public and Nova Scotia’s Mi’kmaq community […] (PG 3 of Exhibit “L”, Markovits’ March 25, 2020 affidavit).

b. This plan also commits government to deliver an integrated, coordinated parks and protected areas program (PG 6 of Exhibit “L”).

c. A key recommendation of the NaturalResources Strategy (2011) is to engage Nova Scotians in “a focused dialogue about provincial parks.” The strategy outlines the need to inform people about the park system, ask what they value most, and involve them in setting priorities. In 2012, the province held public meetings in 20 communities and conducted nearly 1,500 interviews with park users and non-users to examine their perceptions and preferences. This plan reflects the extensive input received through that process. Specific properties in the plan are also based on comprehensive consultation with the public and Nova Scotia Mi’kmaq around land selection and use. This consultation was informed by the 2009 Colin Stewart Forest Forum report and the 12 per cent lands review process (2011), which included numerous stakeholder meetings and more than 700 written submissions. The final plan also reflects what we heard following release of the proposed plan early in 2013. This included more than 2,000 written submissions, and input from more than 1,300 people at 17 public open house sessions held across the province. (PG 6-7 of Exhibit “L”)

131. Third, the Minister assured Nova Scotians that the properties listed in the plan will be managed under “interim guidelines” until legally protected:

[These guidelines] will be consistently applied by the Department of Natural Resources […] to ensure that the areas included in the plan are managed in a manner consistent with their intended protection. […] This plan shows government decisions for this new system of protected area. Additional time is needed to complete the planning, legal, and survey work that will result in the final legal designation of the lands under protection legislation (PG 9-10 of Exhibit “L”).

132. In other words, the Minister promised Nova Scotians that the lands identified in the Plan would be managed in a manner consistent with the Minister’s decision to conserve these lands, until the necessary work was completed to formally designate the lands under legislation. Ironically, Owls Head Provincial Park was identified in the Plan, represented to the public, and thought by the Department of Lands and Forestry, to be already formally designated under legislation.133.The Minister also explicitly promised that Crown land generally as well as those Crown lands identified in the Plan for protection will remain in “public ownership” (PG 13 of Exhibit “L”).

134. For these reasons, it is clear that the Applicants had a reasonable belief that Owls Head Provincial Park was a park, and that the Applicants had a legitimate expectation that the Minister would not remove its status as a park and negotiate its sale to a private resort and golf-course developer, absent public notice and consultation.

135. It is apparent, then, that should this court find that a duty was owed, the nature of that duty should include notice and an opportunity to comment. Further, the ‘moderate’ nature of this duty suggests that any decision regarding the delisting and entering into an offer of sale requires a written rationale. Divestment of public lands with known high ecological value, especially lands identified as a provincial park for decades, is a drastic and highly significant decision and as such warrants a written rationale (Baker, supra, at paras. 38, 39 and 43).

136. As well, the majority in Vavilov, supra, reiterated the importance of reasons, noting that reasons “shield against arbitrariness as well as the perception of arbitrariness” (at para. 78); encourage administrative decision makers to “more carefully examine their own thinking” (at para. 80); and help to demonstrate the “justification, transparency and intelligibility” of the reasoning process and outcome (at para. 81). All of these points speak to the rationale for why the Minister ought to explain his analysis and decision with respect to Owls Head Provincial Park.

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