Supreme Court mulls whether to review controversial Owls Head decision

The Supreme Court of Nova Scotia is mulling whether to grant a judicial review of the province's controversial decision to remove a swath of Crown land from the list of properties awaiting protection.

Owls Head, a 285-hectare piece of Crown land on Nova Scotia's Eastern Shore, was delisted from the Parks and Protected Areas Plan in March 2019 after the province agreed to enter into negotiations with an American development company, which has proposed buying the land and building three golf courses on it.

Owls Head is commonly known as a provincial park — although it formally isn't one — and was in the queue for provincial protection for six years. The province has noted that it's one of nine sites in Nova Scotia with a "globally rare" ecosystem and home to several endangered species.

Two parties — former provincial biologist Bob Bancroft and the Eastern Shore Forest Watch Association — filed papers with the Nova Scotia Supreme Court in January seeking the review.

In the submission, the lawyer for the applicants argued for an extension to the usual six-month time limit for requesting a judicial review.

Justice Kevin Coady presided over a nearly two-hour long hearing on Monday, which focused on the possibility of an extension, as well as the overall merit of a judicial review into the case.

The province's decision to delist Owls Head was made privately by cabinet and didn't become public knowledge for nine months, until it was reported by CBC News on Dec. 18.

The argument for an extension

Jamie Simpson, the lawyer representing Bancroft and Eastern Shore Forest Watch, argued that Dec. 23 should be considered the date when the decision was communicated to the public, because that's the date when the results of CBC's access-to-information request were released publicly. (The information is released to whomever requested it two weeks before it's released to the public.)

"I don't believe it's necessary for interested parties to have to rely upon the facts presented in a media article," Simpson said. "They should be allowed to rely upon the facts that come, pardon the expression, from the horse's mouth."

Before the province's lawyer, Jack Townsend, delivered his arguments to the court, Coady asked him why an extension should be fought, if the review was worthwhile.

"Don't you think it's always best to decide issues such as this on the merits, rather than on the procedural obstacles that can pop up because of people dragging their feet or inadvertence or complacency or something of that nature?" Coady said.

To that, Townsend argued there are actually "big problems" with the merit of the review, as requested. Among them, he pointed to the fact that the land has not been sold and, he said, may never be.

In February, in the face of mounting community pressure to stop the plan, the lawyer for Lighthouse Links issued a statement to CBC saying the company was hitting pause on its plan to "explore multiple options" for the property and consider public feedback. No clarification was given, however, about whether that pause was temporary or permanent.

Earlier this month, the company's lawyer said they remain interested in making the project happen and continue to work on their public engagement plan. The effort has been slowed by the pandemic, according to a statement from the lawyer.

Province says a review 'would be a waste of time'

Townsend said that to challenge the province's decision at this stage, "respectfully, would be a waste of time."

He also argued that any interested parties would have an opportunity to consult on the proposed project at Owls Head because in a letter of offer, signed by the province and Lighthouse Links, the company is required to create a public engagement plan.

Simpson responded by saying that public engagement should have been done before the province entered into an agreement with the developer, and the province should have been solely responsible for the process.

Coady said he would release his decision within 10 days to two weeks.