Legal Case

The McNeil government’s decisions to secretly delist and offer to sell Owls Head Provincial Park prompted wildlife biologist Bob Bancroft and local environmental group Eastern Shore Forest Watch Association (“the applicants”) to take the case to court on behalf of concerned Nova Scotians.

The applicants have launched an appeal, which you can read about further down this page.

The Core Issues

The Applicants in this judicial review challenge the following decisions:
a.the Minister of Lands and Forestry and Treasury and Policy Board’s March 13, 2019 decision to remove Owls Head Provincial Park from the Parks and Protected Areas Plan of 2013; and

b.the Minister of Lands and Forestry’s December 16, 2019 decision to execute a Letter of Offer with Lighthouse Links Development Corporation in order to sell the Owls Head Crown land for private development into resort residences and two or three golf courses.
Applicants’ Brief, Paragraph 2

The First Hurdle: Request for a Time Extension

The applicants were successful in the first round, which was a request for a time extension. Justice Coady of the Nova Scotia Supreme Court granted the applicants an extension to file an application for a judicial review because the secrecy of the government’s decisions “precluded any member of the public from legally responding within the six-month window.” In his decision, Justice Coady emphasized that “the public had every reason” to assume Owls Head Provincial Park was legally protected.

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.”
Interlocutory Decision, Page 3

Judicial Review Decision

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 paragraph 175, Justice Brothers characterized the government’s misrepresentation of Owls Head as “troubling.” 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)
Judicial Review Application Decision, Paragraph 186

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Appeal

Bob Bancroft and Eastern Shore Forest Watch Association hope that their case will be the first in Canada to usher in a new age in environmental law in Canada.

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.

“Governments that renege on a promised park designation and secretly offer public land to developers should understand that concerned citizens and environmental groups will take action.”
Bob Bancroft

“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,” said Jamie Simpson of Juniper Law, who will be representing the applicants. “We believe the answer is yes and that the courts play an inherent role in promoting fair government decision-making.”
Jamie Simpson, Juniper Law

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Stronger Together

Nature Nova Scotia (formerly the Federation of Nova Scotia Naturalists) is joining the fight and helping to fundraise for the legal appeal.

“Nova Scotians should not have to take their own government to court to ensure that our wild spaces are not secretly sold off to developers.”