Higgins v. Nova Scotia (Attorney General), 2012 NSSC 436

SUPREME COURT OF NOVA SCOTIA Citation: Higgins v. Nova Scotia (Attorney General), 2012 NSSC 436 Date: 20121210 Docket: Tru No. 403759 Registry: Truro Between: Forrest C. Higgins, Jr. Appellant v. The Attorney General of Nova Scotia representing Her Majesty The Queen in Right of the Province of Nova Scotia and D.D.V. Gold Limited, a body corporate Respondent DECISION (On Applications for Intervenor Status) Judge: The Honourable Justice J. E. Scanlan Heard: November 19, 2012, in Truro, Nova Scotia Counsel: Robert H. Pineo John A. Keith Darlene Willcott Jeremy P.

Smith Jeffrey Flinn Solicitor for The Solicitors for Forrest C. , Solicitors for D.D.V. Gold Attorney General Higgins, Jr. Limited of Nova Scotia Mr. Geoffrey Saunders Solicitor for The Mining Association of Nova Scotia

By the Court : [ 1 ] I have been asked to consider a request for intervenor status in a matter as between Forrest C. Higgins, Jr. v. The Attorney General of Nova Scotia and D.D.V. Gold Limited . That matter involved a dispute as to the validity of a vesting order which, if upheld, will result in the expropriation of approximately eight acres of forest lands together with an uninhabited dwelling. BACKGROUND [ 2 ] D.D.V. Gold Limited has, for many years, worked on exploration and feasibility studies for a mining operation on a large parcel of land in the Moose River area of Nova Scotia.

D.D.V. is now proposing the development of an open pit mine comprising approximately 1432 acres in the area. Although the owners of some parcels of land on the proposed site have not been ascertained, where owners have been identified, the company has negotiated agreements to acquire all lands necessary to proceed with the project; all that is, except for the eight acres owned by Forrest C. Higgins Jr.. [ 3 ] D.D.V. argues that it is not feasible to proceed with this $700,000.000.00 project unless it includes the eight acres owned by Forrest C. Higgins Jr. Counsel for D.D.V. notes that Mr.

Higgins has refused an offer of $300,000.00 for the eight acre wilderness parcel and that all efforts to negotiate have failed. The $300,000.00 they submit is many times the market value of the property and the uninhabited house located thereon. [ 4 ] The son of Forrest C. Higgins Jr., who is also named Forrest C. Higgins, submitted an affidavit and testified during the hearing on the issue of intervenor status. Counsel for Mr. Higgins Jr., the Appellant, consents to the granting of intervenor status for the Nova Scotia Federation of Agriculture and the Mining Association of Nova Scotia and Moose River Resources.

The request for intervenor status by two Christmas Tree Producer Associations has been withdrawn on the basis that they fall under the umbrella of the Nova Scotia Federation of Agriculture. [ 5 ] The Attorney General agreed to withdrawal by the two Christmas Tree Producer Associations on a “ without costs ” basis. D.D.V. has not consented to a withdrawal on a without cost basis. I am satisfied it would be a waste of resources to have the Christmas Tree Producer Association continue if they are included in the umbrella organization.

The Christmas tree producers are not saying they have no interest, but they are otherwise represented if the Agriculture Federation is granted intervenor status. I agree that it is appropriate that the producer groups now bow out. I further agree that this should occur on a “ without costs ” basis. [ 6 ] Counsel for D.D.V. Gold Limited carried out extensive cross-examination of Forrest Clarence Higgins, the son of the owner of the lands in question.

That cross-examination leads the Court to have concerns that there may indeed be different agendas and issues of concern as between the Nova Scotia Federation of Agriculture and, at least the son of the Appellant. On the one hand Forrest Higgins (the son) represented that the lands at issue have been in his family for several generations. The family or its companies have been involved in the Christmas tree industry as producers and wholesalers for many years. Their holdings are extensive, including lands in Nova Scotia and the United States.

That witness has portrayed the eight acre parcel in question as being an integral part of their Nova Scotia operations. He said the land was being used as a tree plantation and storage area for fertilizer.

D.D.V. challenges that assertion noting that only about 50 trees have actually been sheered, suggesting that shearing was only done as part of a news stunt organized by the Appellant or his son for a T.V. news broadcast. [ 7 ] It was made clear that Forrest Higgins (the son) has been active in Canada and internationally drumming up opposition to Canadian and international mining companies throughout many parts of the world.

Although he has been actively involved in organizing opposition to mining projects through the world, he has, according to his evidence, never known of a Canadian company or any mine he could support anywhere in the world. [ 8 ] I do not pretend to fully understand Mr Higgin ’ s (the son) philosophy or reasoning on the issue of mining. Nor do I yet fully understand his position on this particular mine operation. I did hear enough evidence to appreciate that he is highly intelligent and principled.

I expect a more thorough hearing would flush out a very complex philosophy and the deeply held beliefs of that witness. He

referenced the fact that the colonial past history of many parts of the world has influenced the financial structures of mining companies from Canadian, UK, Australian and other former colonies. I have enough evidence to convince me that his issues, concerns, and objectives may not be the same, perhaps not even close to those of the Federation of Agriculture or its members. By virtue of the fact that farmers depend on and utilize vast tracts of rural lands in Nova Scotia, it is inevitable that they will sooner or later come to interact with mining companies operating in those same rural locations.

The agricultural community has a vested interest in understanding the operation and application of any legislation that has the potential to deprive them of the one asset they all depend upon; land. [ 9 ] I do not understand Mr. Higgins (the son) to be saying that he wants there to be appropriate legislation that allows for an orderly transfer of lands from farmers for mining purposes in appropriate situations. In some situations it may well be of mutual benefit for farmers and mining companies to see some lands diverted to mining use.

In those cases it would be appropriate for government, miners and farmers to all understand the operation and application of relevant legislation. That is different than a philosophy which takes the position of no mines anywhere, under any circumstances. In saying that I am not suggesting that is the Appellant ’ s position. It may only be the position, or at least the goal of his son, Forrest Higgins. If Mr. Higgins (the son) wants mining by Canadian or “ Colonial Companies ” stopped everywhere at any cost that may not be the same objective as the Agriculture Federation.

As noted, some members of the Agriculture Federation may simply wish to better understand the rules and reasoning behind vesting orders. This is different than saying “ stop the mining no matter what the logic ” approach. [ 10 ] There is a realistic risk that the interests of the Agriculture Federation may, in the end, be completely at odds with the objectives of the Appellants, or at least the Appellant ’ s son.

That is more than sufficient reason to satisfy the court that their interests and objectives are sufficiently distinct as to warrant the granting of intervenor status to the Agriculture Federation. [ 11 ] Having ruled that the Agriculture Federation may intervene, and because of the reasons stated, I feel compelled to state a separate concern. Counsel for the Appellant also spoke for the Agriculture Federation at the intervenor application. As noted above, I am concerned that the interests and objectives of the Federation of Agriculture may be so divergent from that of Mr.

Higgins (the son) that there is more than a slight risk that they may take polar opposite positions on the issues to be dealt with by the Court. It may be in the interest of farmers, or at least some of them, that they simply understand the operation of the vesting process so as to best take advantage of what they see as opportunities. That is very different than stopping mining at all cost. Given the potential conflict of interest the court has serious concerns as to how one law firm could represent both of those parties.

If the court did not perceive the potential for divergence then intervenor status would not have been granted to the Federation of Agriculture in the first place. [ 12 ] The granting of intervenor status to the Federation of Agriculture is a method to give them a voice, not just to allow them to pile on in support of a party. That party may be simply challenging the validity of a particular vesting order or, alternatively, may just want to stand in the way of mining everywhere at all cost. Only time will tell.

The court cannot envisage a situation where it would be in the interest of the Federation, or its members, to use this opportunity to mount a challenge to Canadian or International mining companies throughout the world. If that were their objective then it would appear, at least at first blush, that Mr. Higgins (the son) is very capable of mounting such a campaign on his own. If the Federation is to be involved it is on the condition that it has independent counsel, separate from the Appellant. [ 13 ] Mr. Saunders, counsel for the Mining Association of Nova Scotia (MANS) asks for intervenor status.

MANS seeks to be joined as a party pursuant to Civil Procedure Rule 35.01 and Civil Procedure Rule 35.08. In considering the requests of that Applicant, I am mindful of the test applied by Coady, J. In Parker Mountain Aggregates Ltd. v. Nova Scotia (Minister of Environment) 2010 NSSC 277 Justice Coady asked:

(1) Does the moving party have an interest in the issues which form the subject matter of the appeal?

(2) If yes, there is a rebuttable presentation that the moving party will be joined as a party unless each of the following is answered in the affirmative: (

i) Joining a person as a party would cause serious prejudice to that person, or a party;

(ii) The prejudice cannot be compensated in costs; and (iii) The prejudice would not have been suffered had the party been joined originally, or would have been suffered in any case. [ 14 ] The Court agrees with MANS that issues, including the issue of whether the matter proceeds as a trial de novo are matters of public concern. The process of vesting orders and appeal of such orders has broad implication for the entire mining community.

The potential implications for the mining community are much larger than the issue of whether this particular vesting order is valid. [ 15 ] The Court does not accept the position of the AGNS that MANS will simply echo the position taken by DDV Gold. I am concerned that DDV Gold may focus on the present vesting order only, without addressing the broader issues and concerns of the mining community at large.

That interest and possible divergence is sufficient to meet the test in part one of Justice Coady ’ s comments in Parker. [ 16 ] I am satisfied that joining MANS or the Federation of Agriculture will not slow the process or prejudice any party in a way that cannot be compensated for in costs. Both of those Applicants will be granted intervenor status. J. 12/10/12