Thinking Out Loud with Sheldon MacLeod
Saltwire
August 4, 2021
A group of environmentalists lost in its application to the Nova Scotia Supreme Court to have a judicial review of a decision to delist Owls Head as a provincial park. The group also wanted to challenge the government’s decision to offer the 285 hectares of land to be developed into a golf course along the Eastern Shore.
In her ruling, the justice said “…If a remedy is sought by the public, the proper recourse in our constitutional democracy is not through the courts, but at the ballot box.”
Jamie Simpson is with Juniper Law and represented the parties that made the application for the review.
On the procedural fairness argument, we were making basically a novel legal argument. We’re saying that if it had been a private individual affected by this decision in a significant way, then government would have owed a duty of fairness to that person, to let that person know that the decision was being made and give an opportunity to comment.
Jamie Simpson
But because it affected basically the public at large—or at least the segment of the public who care about parks and protected areas and Nova Scotia’s natural history—it was not restricted to an individual person. Canadian law doesn’t recognize an obligation or duty on the part of government to act in a fair way. And we wanted to change that.
In many of the states in the USA, there is an expectation—a legal expectation—that when government makes decisions about public land that has some sort of public value associated with it, then they are legally obligated to let people know and to do so in a transparent manner. And we think it’s time in Canada for the courts to have that same legal expectation on our politicians and our governments.
