Judge reserves decision in Owls Head matter
Applicants want province to revisit decision to remove land from parks plan
Owls Head might never have been a provincial park, but the fact so many Nova Scotians believed it was — and, indeed, even government officials — should have made public consultation a requirement before the province considered selling it, Nova Scotia Supreme Court heard Thursday.
Lawyer Jamie Simpson made the argument on behalf of his clients, Bob Bancroft and the Eastern Shore Forest Watch Association.
The hearing comes more than two years after the province signed a letter of offer with Lighthouse Links Development Company to potentially sell the private developer 285 hectares of Crown land in the Little Harbour area on Nova Scotia's eastern shore for the purpose of a proposed golf development.
Simpson told Justice Christa Brothers that his clients' issue is not with the company or the proposed development, but how the government reached the decision to remove Owls Head from the parks and protected areas plan — a decision that included no public notice or public consultation.
Although discussions between company and government officials started in 2016, it wasn't until 2019, when CBC News first reported on the proposal, that the public was made aware of what was happening.
"The heart of this issue is really the secret removal of a park's [pending] protected status," Simpson told the court.
He provided a variety of examples that showed members of the public and provincial government officials believed for decades that Owls Head was a provincial park. Only recently was it learned the land did not carry that designation.
As such, Simpson argued the public was owed a duty of fairness and the chance to comment before members of the treasury and policy board made the decision to delist the property and potentially sell the Crown land at the recommendation of Iain Rankin, who was lands and forestry minister at the time.
Request is premature
Lawyers for the Crown and Lighthouse Links argued that the applicants' request is premature, given that a final decision has not been made on the sale.
Crown attorney Jack Townsend noted the decision of whether to sell the land may never even make its way to cabinet, given the number of requirements the letter of offer contains and challenges facing the land. That includes the fact it is zoned municipally as regional parkland, a designation that prevents most development.
"[The developer is] going to have to jump through a lot of hoops at the municipal zoning level, as well," he said. "That approval might never be obtained."
Townsend argued there is nothing in law that says the government owed the applicants notice before making the decision to delist Owls Head. Members of the treasury and policy board were acting within their mandate to make a policy decision based on information presented to them, he said.
The lawyer representing Lighthouse Links, Richard Norman, pointed out the conditions in the letter of offer include the requirement for the company to conduct a consultation process, which must be approved by the Lands and Forestry Department first, with First Nations and members of the public.
"That process is where the accountability and the transparence that the applicants are seeking, and that they make submissions that they are concerned about. That's where they will find the accountability and transparency," he said.
"For it to occur any earlier would be a waste of everybody's time."
But Simpson said such a consultation plan would not actually be between the public and government, and would not be focused on whether to delist the property and ultimately remove it as Crown land. He said the company could have informed the public of its intentions at any time, but in fact requested the government keep the proposal confidential throughout the negotiation process.
Brothers reserved her decision.
A spokesperson for Lighthouse Links said the company would await the outcome of the court process before submitting its consultation plan to the government for consideration.
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