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Judge grants extension to apply for judicial review into Owls Head decision

Owls Head Provincial Park Reserve and Long Cove (private land in foreground).  - Vision Air
Owls Head Provincial Park Reserve and Long Cove. - Vision Air
HALIFAX, N.S. —

A Nova Scotia Supreme Court judge has granted opponents of the province's decision to delist Owls Head as a provincial park reserve an extension to file for a judicial review of the matter.

Justice Kevin Coady heard arguments from Jamie Simpson, the lawyer for Bob Bancroft and the Eastern Shore Forest Watch Association, on June 29. They were seeking permission to file their review application even though the six-month time limit to file after the decision was made had passed.

In his decision released Wednesday, Coady noted that the delisting of Owls Head as a provincial park reserve, which is sort of a “holding pen for lands that, in the future, may become provincial parks,” occurred March 13, 2019, by way of a provincial Treasury Board minute letter at the request of Lands and Foresty Minister Iain Rankin.

An American development company has proposed to build a golf resort on the 285 hectares of Crown land on the Eastern Shore.

"We believe that we have an important case to bring forward that there's some important legal issues around the minister of lands and forestry's decision-making process regarding Owls Head Crown lands.”

- Jamie Simpson, lawyer for Bob Bancroft and the Eastern Shore Forest Watch Association

It wasn't until a journalist's freedom of information request for the province's plans for the development of the property was published Dec. 18, 2019, that the decision became known.

“Subsequently, on December 23, 2019, the same information was published on the province’s freedom of information portal,” Coady's decision said. “I accept the applicants' position that this represents the earliest date that this information was available to the public. Mr. Bancroft filed his notice on January 30. 2020. Eastern Shore Forest Watch Association joined the application on January 31. 2020.”

Coady said there was no question that the deadline had passed since the decision, but “the secrecy of the decision precluded any member of the public from legally responding within the six-month window. There is nothing in the evidence that suggests the applicants were dragging their feet.”

Similarly, the notice of judicial review was filed Jan. 30, outside of a 25-day limit to do so after Dec. 18, the earliest day the decision could be considered to be communicated to the public, Coady wrote.

Coady cited previous court decisions in concluding that the “discoverability principle” applies.

He said the applicants had a bona fide intention 10 appeal, that the delay amounts to only a matter of days, that the secretive nature of the process amounts to a reasonable excuse for the delay, that they will “suffer prejudice if the extension is not granted,” and that they have a well-reasoned application for a review that should be heard.

Late Wednesday afternoon, Simpson said he had not yet discussed the decision with his clients.

“We're very pleased,” he said. “We think that we have a worthwhile case to bring forward, assuming that my clients decide that they wish to continue. We believe that we have an important case to bring forward that there's some important legal issues around the minister of lands and forestry's decision-making process regarding Owls Head Crown lands.”

Simpson said there are roughly 100 areas in the province that potentially could end up in the same boat as Owls Head.

“Technically, the same that happened with Owls Head could happen with Herring Cove provincial park or any other of these 100-odd 'parks' that aren't actually parks,” Simpson said. “So we're concerned that … given that this happened with Owls Head, this could happen with any of these other properties as well.”

Bancroft and the association have 14 days to file their notice of judicial review, Coady's decision said.

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