N.S. Supreme Court dismisses application for judicial review of Owls Head delisting

A Nova Scotia Supreme Court judge has dismissed the application for a judicial review of the Liberal government's decision to remove Owls Head from the list of Crown properties pending legal protection, noting the potential sale is not a done deal.

In a decision released Friday, Justice Christa M. Brothers acknowledged the public outrage following the discovery of the provincial government's actions, which were first revealed by CBC News. 

But Brothers said the court could not intervene because the decision by the government's treasury and policy board to delist the property, and by cabinet to enter into the letter of offer with prospective developers for the land, was within the government's lawful authority.

"In such circumstances, 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," she wrote.

Bob Bancroft and the Eastern Shore Forest Watch Association went to court in response to the provincial government removing the 285-hectare coastal property in Little Harbour from the province's parks and protected areas plan in 2019. 

• Read the judge's full decision

The property was delisted so the government could enter into a conditional agreement to sell the land to Lighthouse Links, a development company owned by seasonal residents Beckwith and Kitty Gilbert.

The matter has pitted people concerned about the destruction of a globally rare ecosystem against people in favour of economic development.

The Gilberts, who own a large amount of property adjacent to the Crown land, have been working behind the scenes since 2016 to buy Owls Head in order to advance a development that would include three golf courses, housing and tourist accommodations.

Judge's decision does not green-light sale

Brothers noted her decision does not mean the land will automatically be sold.

Before the Gilberts can proceed with their plans, they must first satisfy provincial government requirements for public engagement and First Nations consultation, along with other government-required environmental assessments. Assuming that work is completed, at that point it would fall to the provincial cabinet to decide whether to proceed with the sale.

The land would also need to be rezoned by the Halifax Regional Municipality, something the developers' own land-appraisal documents said would be a challenge. That document identifies the "highest and best use" of the land to be for recreational or conservation purposes.

Sale 'depends on future events'

Brothers's decision acknowledges these remaining criteria before the land could be considered for sale.

"At this point, whether Owls Head is ultimately sold to Lighthouse Links depends on future events. It is a matter of speculation. For this reason, the minister's decision to enter into the [letter of offer] is not reviewable on either substantive or procedural grounds," she wrote in her decision.

The applicants argued the government had a duty of fairness to inform and consult the public before delisting the property and entering into the letter of offer, a doctrine Canadian law does not yet recognize.

Brothers ruled that to make such a change would require "a substantial recasting of the current law, the ramifications of which this court is not in a position to accurately predict."

"If the public trust doctrine is to become part of the law in Nova Scotia, that kind of substantial change must be introduced through legislation, not the common law," she said.

Company hopes to begin consultation in September

A statement on behalf of Lighthouse Links said the company was pleased with the ruling and hopes to begin public engagement in September.

"We'll be highlighting the benefits and opportunities of the project through our public outreach," said the statement, sent via public relations firm National.

"Lighthouse Links is an exciting opportunity for the community of the Eastern Shore and the province of Nova Scotia, creating an ecotourism destination that will be an environmentally responsible source of up to 200 rural jobs. We look forward to being a positive example for sustainable and safe rural economic growth."

Jamie Simpson, the lawyer for Bancroft and Eastern Shore Forest Watch, said the applicants were disappointed with the outcome.

'An injustice such as Owls Head'

He disagreed with the idea that the ballot box is the appropriate place to deal with the matter.

"The ballot box is a pretty blunt tool, and a once-every-four-years-trip to the ballot box is just not the appropriate way to deal with an injustice such as the Owls Head situation."

Simpson said the shift in common law his clients were asking for was "small," and that a situation such as this is rare.

"These things generally don't happen because most of the time, government does let people know and give people an opportunity to comment on things like protected areas and parks," he said.

"I don't think it would open any kind of floodgates for litigation, contrary to what Justice Brothers has decided."

Could come back to court

In her ruling, Brothers acknowledged this might not be the final time the matter comes before the courts.

"If, for example, cabinet were to approve a sale of Owls Head without adequate information to determine whether the proposed development is likely to disturb or destroy the habitat of a species at risk, an offence under the Endangered Species Act, the respondents and the intervenor may find themselves right back here," she wrote.

"As the government is aware, there is no exception under the Endangered Species Act for golf courses, regardless of the economic benefits associated with them."

Liberal Leader Iain Rankin was minister of lands and forestry in 2019 when Owls Head was removed from the parks and protected areas plan and the letter of offer was signed with Lighthouse Links.

He's faced criticism during the election campaign for allowing that process to continue even after he became premier last February. During the leadership debate on Wednesday, Rankin said there is a process in place to evaluate the project, but that he would not support any proposal that has long-term effects on a sensitive ecosystem.

He reiterated that position while talking to reporters on Friday.

"We need to follow the science here and have feedback," he said. "There is a process here to be followed and I'm very confident that we are following the right process."