The McNeil government’s decision to secretly delist and offer to sell Owls Head Provincial Park first prompted applicants Bob Bancroft and Eastern Shore Forest Watch Association to take the case to the Nova Scotia Supreme Court on behalf of concerned Nova Scotians. Next, they headed to the Nova Scotia Court of Appeals, but the court dismissed the appeal as moot in December 2022, given that the park was already protected at that point.
Since Owls Head Provincial Park is legally protected, why did the applicants feel the court case was still necessary?
“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. We believe the answer is yes and that the courts play an inherent role in promoting fair government decision-making.”
Jamie Simpson, Juniper Law
The underlying issues that allowed politicians to secretly remove Owls Head Provincial Park from Our Parks and Protected Areas Plan remain a threat to transparency, public fairness, and the province’s network of protected areas.
Issue Arising Again
“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.”
Francis Campbell, saltwire
A Dangerous Precedent
At the time that the applicants submitted their brief, nearly half of what Nova Scotians consider provincial parks weren’t legally protected parks at all. In June of 2020, the Chronicle Herald reported, “Of 206 provincial parks in Nova Scotia, 102 are awaiting official designation.”
Thankfully, we have made progress since then. But between provincial parks, nature reserves, and wilderness areas awaiting designation, there are roughly 125 “protected areas” that are still missing—you guessed it—legal protection. And in most cases, it’s very hard for the public to tell the difference. As the applicants’ brief pointed out (in paragraph 129), “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.”
Nova Scotia Supreme Court Justice Kevin Coady agreed that the public “had every reason” to believe that Owls Head Provincial Park was a designated provincial park:
“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.”
Bancroft v. Nova Scotia (Land and Forestry) 2020 NSSC 214: Interlocutory Decision, Page 3
“When it comes to our undesignated provincial parks & park reserves, “the exact same state that befell Owls Head could potentially happen. ” Furthermore, “we have no assurance that the department would let the public know that a sale was pending.”
Lawyer jamie simpson
Closing the Loophole
Our legal system is a combination of common law and civil law. Thus, there were two different ways that we could resolve the legal loophole putting these lands at risk:
1. Civil law: By introducing and passing a bill that addresses the underlying issue(s)
2. Common law: By setting a new precedent through the courts
The Owls Head Act, introduced by the NDP, would have dealt with this very issue. Unfortunately, the PC Party defeated the bill. However, the Houston government could still resolve this issue through legislative means.
Had Owls Head been legally designated, the situation would have been quite different, as the Honourable Justice Brothers explained:
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
The pre-trial brief submitted by Jamie Simpson argues that the “applicants were owed a duty of procedural fairness.”
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.
Applicants’ Brief (Paragraphs 126-127)
[…] 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.
“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.”
JUDICIAL REVIEW APPLICATION DECISION, PARAGRAPH 186
*Our emphasis in bold
The applicants had hoped that Justice Brothers would be the first judge in Canada to recognize the public trust doctrine.
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.”
JUDICIAL REVIEW APPLICATION DECISION, PARAGRAPH 92
Justice Brothers wrote in her decision that the “fundamental defect” in the applicants’ case was 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.
Public Interest Still Needs to be Protected
“New laws to protect the public interests are needed,” stressed applicant Bob Bancroft, who worked for the provincial government for almost three decades. Otherwise, “developers across Nova Scotia will be asking to buy other vulnerable public park lands at bargain-basement prices.”
“Without stronger legal protections, Nova Scotia’s parks and protected areas will perpetually be at risk,” agreed Lindsay Lee, Secretary of Eastern Shore Forest Watch Association. “And in the midst of rapid biodiversity loss and climate change, that’s not good for the public or the planet.”
Journalist Richard Bell described the public trust doctrine as follows:
The public trust doctrine is fairly well developed in U.S. law, but has not yet been accepted in Canadian law. The doctrine, which is rooted in common law, grew out of a growing recognition that existing laws were not sufficient to deal with a number of environmental problems where the public as a whole were threatened by air pollution, global warming, etc.
Richard Bell, The Eastern Shore Cooperator
Bringing the public trust doctrine into the law necessarily places limitations on both private interests and on the government itself. In holding resources like lakes or parks “in trust,” governments assume a different relationship and responsibility towards those resources than under current interpretations of Canadian law. If Canadian courts were to recognize the public trust doctrine, then future Ministers of Lands & Forestry could more easily be held responsible if they failed to consult the public on critical decisions that appeared to be in violation of the public trust.
“We think that it’s time to make that shift in common law,” said lawyer Jamie Simpson. “The environment has become such an important issue for Nova Scotians and Canadians generally that it is time to recognize that the government does have an obligation to be transparent when it comes to important lands with ecological values.”
Court Records and Related Documents
- Justice Coady’s Decision on the request for a time extension (Granted: August 5, 2020)
- Justice Chipman’s Decision on the Applicants’ Motion (Dismissed: December 16, 2020)
- Record on Judicial Review (Province, Record)
- Applicants’ Brief (March 1, 2021)
- Judicial Review Decision from Justice Brothers (Dismissed: July 26, 2021)
- Statement on the Decision (August 1, 2021)
- Press Release: Applicants Headed to Court of Appeal (October 8, 2021)