Bancroft v. Nova Scotia (Lands and Forestry), 2021 NSSC 234

SUPREME COURT OF Nova Scotia Citation: Bancroft v. Nova Scotia (Lands and Forestry) , 2021 NSSC 234 Date: 20210726 Docket: Hfx , No. 496023 Registry: Halifax Between: Robert Bancroft and Eastern Shore Forest Watch Association Applicants v. Nova Scotia Minister of Lands and Forestry -and- Attorney General of Nova Scotia Respondents -and- Lighthouse Links Development Company Intervenor Judicial Review Application Decision Judge: The Honourable Justice Christa M.

Brothers Heard: April 1, 2021, in Halifax, Nova Scotia Final Written Submissions: June 18, 2021, in Halifax, Nova Scotia Counsel: Jamie Simpson and Michael Cofahl, for the Applicant Jack Townsend, for the Respondents Richard Norman and Jacob Che, for the Intervenors By the Court: Introduction [ 1 ] For more than four decades, the Province of Nova Scotia (the Province) represented to the public that the Owls Head Crown lands were a provincial park, and openly treated them like one.

In 2013, when the government introduced its “Our Parks and Protected Areas” plan (the PAPA) – a policy document intended to guide the government's exercise of its discretion under the Provincial Parks Act , R.S.N.S. 1989, c. 367 , and other land protection statutes to fulfill its goal to legally protect 12% of Nova Scotia’s land mass by 2015 – Owls Head was identified as an existing provincial park. In other words, according to the PAPA, the Owls Head Crown lands were already protected.

However, when a developer inquired about purchasing the lands to turn them into golf courses, it became apparent that Owls Head had never been formally designated as a provincial park under the Provincial Parks Act . [ 2 ] In March 2019, without informing the public, the Treasury and Policy Board issued a confidential minute letter removing Owls Head from the PAPA. In December 2019, Iain Rankin, then Minister of Lands and Forestry, reached a conditional agreement to sell the developer the Owls Head Crown lands.

The public did not learn about the de-listing of Owls Head, or about the conditional sale, until after the agreement was signed. If Owls Head had been formally designated as a provincial park, as was represented to the public, any change to its status as protected land would have required an order-in-council, and would therefore have been public knowledge. Ultimately, the government’s own misrepresentation of the status of the lands shielded its actions from scrutiny and allowed purportedly

protected lands to be considered for sale, out of the public eye. [ 3 ] Predictably, the Province’s conduct did not sit well with some members of the public. An application to this court has ensued. It was clear from the applicants’ submissions that they attribute the public’s lost opportunity to be heard on the potential de-listing of Owls Head to the government’s misrepresentation that the lands were already a provincial park. That said, the applicants did not file a claim in negligent misrepresentation.

Instead, they filed an application for judicial review in which they ask the court to be the first in Canada to hold that the government owns property in trust for the public, and that it owes the public a duty of procedural fairness when making decisions about lands that have been identified as having public value beyond the value of Crown lands generally, including lands with conservation value. Judicial acceptance of this “public trust doctrine” would mean that Owls Head, and any other lands the government has recognized as having such public value, could not be sold without public consultation.

The applicants also ask the court to hold that the decision to de-list Owls Head, and the decision to execute the conditional agreement for its sale, were unreasonable and must be struck down. [ 4 ] I conclude that recognition of the public trust doctrine proposed by the applicants would not represent the kind of incremental change to the common law that this court is permitted to make. Nor can the court allow the application on substantive grounds. [ 5 ] Elected officials on occasion make decisions, and use procedures, that leave some constituents feeling betrayed and even incensed.

Where those officials exceed their power, judicial review may provide a remedy. But where the decisions are within their lawful authority, as in this case, the court cannot intervene. 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. Background [ 6 ] On December 18, 2019, CBC investigative reporter Michael Gorman published an

article with the headline, “N.S. won’t protect land with ‘globally rare’ ecosystem that company eyes for golf resort”. Mr. Gorman reported that in March 2019, the Treasury and Policy Board had “quietly removed” Owls Head Provincial Park from the list of properties awaiting legal protection under the PAPA. According to the article, the decision to de-list Owls Head was made “after several years of lobbying by and discussions with a private developer who wants to acquire the land as part of a plan to build as many as three golf courses”. [ 7 ] The CBC

article was the first time that the general public learned of the decision to remove Owls Head from the PAPA, paving the way for its potential sale to Lighthouse Links Development Company.

Through a freedom of information request, Robert Bancroft and Eastern Shore Forest Watch Association (the applicants) later discovered that on December 16, 2019, the Minister of Lands and Forestry executed a conditional Letter of Offer (LOO) to sell the Owls Head Crown lands to Lighthouse Links for the development of “a recreational and residential community, which is expected to include one to three world class golf courses, club house, single family homes, and short term accommodations, enhanced seasonal and recreational activities (including hiking, kayaking, and boating)”.

Lighthouse Links signed the LOO on December 19, 2019. [ 8 ] The applicants have applied for judicial review of the decisions to remove Owls Head from the PAPA and to execute the LOO to sell the Crown lands to Lighthouse Links. The applicants attribute both decisions to the Minister of Lands and Forestry, and challenge them on procedural and substantive grounds.

They say the Minister owed a duty of fairness which required him to inform and consult the public before he made the decision to request that the Treasury and Policy Board remove Owls Head Provincial Park from the PAPA, and before he executed the LOO to sell the lands for private development. According to the applicants, this duty of fairness also required the Minister to provide reasons for both decisions.

The applicants further submit that the decisions were unreasonable because the Minister failed to consider relevant factors, including his responsibilities under the Crown Lands Act , R.S.N.S. 1989, c. 114 , the Provincial Parks Act , and the Endangered Species Act , S.N.S. 1998, c. 11 . [ 9 ] The Minister of Lands and Forestry and the Attorney General of Nova Scotia (the respondents) and Lighthouse Links (the intervenor) oppose the application on multiple grounds.

They attribute the decision to remove Owls Head from the PAPA to the Treasury and Policy Board, not the Minister, and say the availability of judicial review of a Cabinet-level decision involving matters of public policy is extremely limited. The respondents and the intervenor submit that the applicants have failed to raise a justiciable issue (and therefore have no standing), that there is no common law duty of fairness owed to the public at large, that the application is premature, and, in the alternative, that the decisions were reasonable.

The applicants and the intervenor [ 10 ] Robert Bancroft is a wildlife biologist who was employed by the Nova Scotia Department of Lands and Forestry from 1967 to 1968, and from 1973 to 1991. He was also an extension biologist for the Province’s inland fisheries program from 1991 to 1999. He has worked as an independent forestry and wildlife consultant since 1999, and, since 2009, has been president of the Federation of Nova Scotia Naturalists. Mr. Bancroft promotes the preservation and restoration of important natural habitats throughout the province.

He has been involved in various government-initiated public consultations regarding the protection of land in Nova Scotia for conservation purposes. [ 11 ] The Eastern Shore Forest Watch Association was founded in 1998 and is dedicated to promoting sustainable forestry practices and the protection of ecologically important lands on the Eastern Shore of Nova Scotia. Barbara Markovits has been an active member of the Association since 2003, was co-chair of the Association from 2006 to 2016, and, since 2016, has been the Association’s membership coordinator and a member at large on its Board.

The ESFWA has participated in numerous public consultation processes undertaken by the Province in relation to parks and protected areas. [ 12 ] Lighthouse Links Development Company is a Nova Scotia limited liability company incorporated and registered on September 21, 2016. The company is a wholly-owned subsidiary of Lighthouse Links Holdings, a U.S. subchapter corporation. G.S. Beckwith

Gilbert is the sole shareholder of Lighthouse Links Holdings, and the president of Lighthouse Links Development Company. Over the years, Mr. Gilbert and his wife have acquired land along the Eastern Shore and currently own approximately 340 acres adjacent to the Owls Head Crown lands. The history of Owls Head [ 13 ] The Crown lands at Owls Head consist of 705.2 acres of coastal land near the communities of Little Harbour and Owls Head on Nova Scotia’s Eastern Shore. The former Owls Head Provincial Park occupied 703 of the 705.2 acres. [ 14 ] Uncontested affidavit evidence filed by Ms.

Markovits shows that Owls Head has been represented as a provincial park by the Nova Scotia government for decades. It was first identified as a park in a 1978 brochure produced by a committee initiated by the Department of Lands and Forests (as it then was known), in which Owls Head is described as part of “The Island & Headlands Natural Environment Parks”. A 1980

article in the Department of Lands and Forests’ N.S. Conservation publication includes a map that identifies Owls Head as a “Natural Area” within the Eastern Shore Seaside Parks System. A 2012 map by the Department of Natural Resources (as it was then known), titled “Owls Head Provincial Park and Park Reserve Series” identifies Owls Head as a “Park Reserve”.

The map identifies the data source used as “Restricted and Limited Use Lands 2007: NS Department of Natural Resources.” This map is no longer available on the Department’s website. [ 15 ] An information sheet published in 2013 by the Province of Nova Scotia, titled “Owls Head Provincial Park”, notes that the property has “exceptional bedrock-ridged topography”, that piping plover (a designated “species at risk” pursuant to s. 12 of the Endangered Species Act ) has nested on the Owls Head property, and that the land was “assigned to parks program as part of the Province’s commitment to develop the Eastern Shore Seaside Park System”.

This information sheet describes Owls Head Provincial Park’s status as “Reserve” and says it is managed as a “Supporting Park”. This information sheet is no longer available on the Department’s website. [ 16 ] In 2013, the Department of Natural Resources (DNR) and Nova Scotia Environment published the “Our Parks and Protected Areas” plan. The PAPA describes Owls Head Provincial Park as an “existing” provincial park, not a new one, and notes that it was to be managed as a “supporting park”. [ 17 ] On June 24, 2015, DNR issued a research permit to researchers Caitlin Porter and Dr. Jeremy Lundholm (St.

Mary’s University), and to Sean Basquill (DNR-Wildlife Division). The permit states, in part, “Locations of Proposed Research: Provincial Parks”, and lists several provincial parks, including Owls Head. [ 18 ] An online, interactive map published by the Province of Nova Scotia titled “Parks and Protected Areas: A System for Nova Scotia” identifies Owls Head as “Owls Head Provincial Park”. According to Ms. Markovits, when she accessed the map on February 19, 2020, Owls Head was not depicted in the colour used to identify provincial parks.

She said, however, that when she viewed the map on previous occasions, the colour used for Owls Head identified it as a provincial park. [ 19 ] An online map published by the Province of Nova Scotia and visited by Ms. Markovits on March 8, 2020, titled “Nova Scotia Registry of Claims” shows mineral claims in the province and identifies Owls Head as “Owls Head Provincial Park”.

The PAPA [ 20 ] In 2007, the Legislature passed the Environmental Goals and Sustainable Prosperity Act , S.N.S. 2007, c. 7 , (the EGSPA ). [ 21 ] Generally, the EGSPA contemplates that the Province will attempt to strike a balance between environmental considerations and economic development. Section 3(2) provides that the statute is based upon the following principles: (

a) the health of the economy, the health of the environment and the health of the people of the Province are interconnected; (

b) environmentally sustainable economic development that recognizes the economic value of the Province’s environmental assets is essential to the long-term prosperity of the Province; (

c) the environment and the economy of the Province are a shared responsibility of all levels of government, the private sector and all people of the Province; (ca) to achieve objectives that span both environmental and economic aims, government departments need to collaborate across the Province using a whole systems approach; (

d) the environment and economy must be managed for the benefit of present and future generations, which is in keeping with the Mi’kmaq concept of Netukulimk , defined by the Mi’kmaq as the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community by achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity or productivity of our environment; (

e) innovative solutions are necessary to mutually reinforce the environment and the economy; (

f) a long-term approach to planning and decision-making is necessary to harmonize the Province’s goals of economic prosperity and environmental sustainability; (

g) the management of goals for sustainable prosperity, such as emission reduction, energy efficiency programs, climate change adaptation and increasing the amount of legally protected land will preserve and improve the Province’s environment and economy for

future generations. [ 22 ] The Act defines “sustainable prosperity” at s. 2(

h) as “seizing today’s opportunities without compromising tomorrow, while working together for a strong, competitive economy, a healthy environment and vibrant, thriving communities.” [ 23 ] The need to strike a balance between environmental considerations and economic development is further underscored by s. 4(1), which provides as follows regarding the Province’s long-term objectives: The long-term environmental and economic objective of the Province is to achieve sustainable prosperity and to this end to (

a) establish clear goals that foster an integrated approach to environmental sustainability and economic well-being; and (

b) work towards continuous improvement in measures of social, environmental and economic indicators of prosperity. [ 24 ] In turn, s. 4(2) sets out a number of environmental and economic goals for the Province to pursue in order to achieve these long-term objectives, including the following: (

v) at least 12 per cent of the total land mass of the Province is legally protected by 2015… [ 25 ] The EGSPA leaves it to the Province to determine how to achieve these goals and objectives and, ultimately, strike an appropriate balance between environmental considerations and economic development. The legislation does not identify specific lands to protect, nor does it specify a process for the Province to follow in determining whether a particular parcel should receive legal protection so that it counts toward the goal in s. 4(2)(v). [ 26 ] In 2013, DNR and Nova Scotia Environment published the PAPA.

One of the PAPA’s purposes was to help the Province achieve the land mass protection goal set out in s. 4(2) (

v) of the EGSPA . The PAPA states at p. 7: Our natural landscape and cultural heritage are protected by both legislation and policy in numerous ways, but Nova Scotians have expressed a desire for a more comprehensive plan to address long-term viability. Two documents in particular reflect that desire: 1. Environmental Goals and Sustainable Prosperity Act , which requires a. the creation of a sustainable parks system b. the legal protection of at least 12 per cent of the total land mass of the province by 2015 2.

The Path We Share: A Natural Resources Strategy for Nova Scotia 2011–2020 , which lays out five goals for provincial parks: shared stewardship, far-sighted planning, protection, education, and recreation. This plan responds to both these documents; it exceeds the protected lands goal of at least 12 per cent and takes specific actions to address the goals of the natural resources strategy.

This plan also commits government to deliver an integrated, coordinated parks and protected areas program. [ 27 ] The Province’s decisions as to which lands should be protected were based in part on extensive public consultation: A key recommendation of the natural resources strategy (2011) is to engage Nova Scotians in “a focused dialogue about provincial parks.” The strategy outlines the need to inform people about the park system, ask what they value most, and involve them in setting priorities.

In 2012, the province held public meetings in 20 communities and conducted nearly 1500 interviews with both park users and non-users to examine their perceptions and preferences. This plan reflects the extensive input received through the natural resources strategy. Specific properties proposed for protection are also based on extensive consultation with the public and Nova Scotia Mi’kmaq around land selection and use.

This consultation was informed by the 2009 Colin Stewart Forest Forum report and the 12 percent lands review process (2011), which included numerous stakeholder meetings and more than 700 written submissions. (p. 7) [ 28 ] The PAPA identifies approximately 206,000 hectares of lands to be added to the existing parks and protected areas system. These new lands were planned to be legally protected by 2015. There were also delayed designation lands that were planned to be protected by 2020.

Those lands proposed for protection were to be managed under interim guidelines until final decisions were made respecting their protection. [ 29 ] Appendix “A” to the PAPA sets out “a complete list of new protected areas, as well as provincial park properties.” Owls Head is listed as site #694 in Appendix “A” where it is described as “Owls Head Provincial Park”. [ 30 ] At the time the PAPA was drafted, it was believed that Owls Head had already been formally designated as a provincial park under the Provincial Parks Act .

To the surprise of both the public and government, that understanding turned out to be incorrect. In fact, as the applicants point out, more than 100 of the “existing” provincial parks identified in the PAPA, including Pomquet Beach Provincial Park and Herring Cove Provincial Park, are not legally designated as parks. Due to the lack of formal designation under the Provincial Parks Act , management of Owls Head falls under the Crown Lands Act . The proposal from Lighthouse Links

[ 31 ] The application to purchase the Owls Head Crown lands was initiated by Sean Glover, a lawyer at Cox & Palmer and the secretary and registered agent of Lighthouse Links. On September 23, 2016, Mr. Glover submitted an application to purchase Crown lands to DNR, on behalf of the company. In his email attaching the application, he requested that “reasonable steps be undertaken to keep the application confidential”. [ 32 ] In the correspondence accompanying the application, G. S.

Beckwith Gilbert explained that his company wishes to acquire the Owls Head Crown lands “to construct two or more world-class 18 hole oceanfront links golf courses – Lighthouse Links – in Little Harbour, at the heart of Nova Scotia’s Eastern Shore, to bring major economic benefits to the area by enhancing tourism and increasing employment.” Mr. Gilbert continued: Fifteen years ago, my wife, Kitty, and I fell in love with Little Harbour.

We initially acquired 255 acres in two parcels in Little Harbour, approximately 3 miles of ocean shoreline with many beautiful white, sandy beaches, and have since added another 19 properties, almost all vacant land, as part of our program to preserve the area’s unspoiled beauty and protect the environment, bringing our total holdings to approximately 340 acres. We built a home about nine years ago and bought several other houses in the area to use for guests. We value the friendships we have made in the area and are sad that a number of our favorite restaurants, stores, and our gas station have closed.

Kitty and I would like to do something for the area which has brought us to much pleasure. One of our guests who had played at Bandon Dunes in Oregon said our property was very similar to Bandon Dunes and suggested we construct a golf course. After the great success of Cabot Links and Cabot Cliffs, the idea of world-class links golf courses on Little Harbour’s magnificent seaside seemed more and more feasible. Cabot Links and Cabot Cliffs have oceanfront sites very similar to Little Harbour.

Little Harbour has the additional benefit of being easy to access, within a little more than an hour’s drive from Halifax and its international airport. … Multiple diverse oceanfront courses with unique holes could make Little Harbour and Lighthouse Links a major golf destination and, together with other great courses nearby in Nova Scotia, benefiting employment and the economy of the Eastern Shore.

Our objective is to build one of the world’s finest golf complexes with other facilities, preserving and enhancing the natural beauty of the area, while making it accessible to the public, to Canadians and tourists from around the world. Currently, there is no public road access to the spectacular sandy beaches, dramatic ocean coastline, and spectacular vistas in Little Harbour. The only access is over private lands, or by kayak or boat.

Given the economic benefits of Cabot Links and Cabot Cliffs to Nova Scotia, another world-class golf course complex in Nova Scotia – this time on the spectacularly beautiful Eastern Shore ocean coastline – would build on the success of the Cabot Links model, further enhance Nova Scotia as a world-class golf destination, and boost employment on the Eastern Shore. The acquisition of the Provincial lands is essential to the feasibility of the project by providing enough land to make the Lighthouse Links golf complex possible.

As shown in the attached map, after a careful review, no other comparable, suitable, or reasonable property alternative exists. [ 33 ] Staff subsequently prepared briefing notes for the Minister and Deputy Minister. In the briefing note to the Deputy Minister, the author wrote that “[t]o remove the lands from the PAPA a Memorandum to Executive Council (MEC) would be required.” [ 34 ] In September 2017, Lighthouse Links delivered a presentation to the Province regarding its proposal. Later that month, the then-Minister of Natural Resources, Margaret Miller, wrote to Mr. Gilbert “to provide a

summary of the various steps that are required to proceed with your proposal to acquire Crown lands for your Lighthouse Links project at Owls Head”. The Minister noted that: As discussed at the September meeting, the first step that must be taken before the transaction can proceed is DNR obtaining authorization from Cabinet to remove the Crown lands from the Parks and Protected Areas Plan (PAPA). The PAPA was issued by the Minister of Environment and the Minister of Natural Resources in 2013 and lays out the commitment by the Province to work towards protecting lands identified in the Plan.

All other processes are subject to this step being successfully completed. [ 35 ] The Minister then stated that “(i)f approval is received from Cabinet to remove the Crown lands from the PAPA, staff advise that these are next steps that will be required for your proposal”. She noted that an environmental assessment (or EA) might be required before any conveyance of Owls Head could be completed: A development project such as yours, must be screened to determine if it requires an environmental assessment (EA), which falls under the jurisdiction of the Department of Environment (NSE).

The types of projects that require an EA are listed in the Environmental Assessment Regulations. For example, if there are significant wetland impacts, the Lighthouse Links golf course could trigger an EA… Due to the nature of an EA, it is initiated at the beginning of a project and it includes other steps such as public consultation and aboriginal consultation.

We recommend that you speak directly with NSE regarding potential EA requirements… Please note that steps required by DNR can be ongoing while an EA and other authorities are in process, but the conveyance of Crown lands would not be finalized until an EA is complete. [ 36 ] The Minister went on to note that Lighthouse Links might also have to obtain a number of other approvals from other agencies and levels of government:

Typically for a project of this nature, various authorizations/approvals will be required from various sources other than DNR.

The following are additional authorizations/approvals that appear likely based on information received to date (the list may change as more project details become available): • Approvals from Transportation Infrastructure and Renewal ( sic ) depending on increases in traffic volume, required road work and public road access; • Municipal approvals including: development approvals (sewer, subdivision, condominium or facilities development); • Additional approvals would be required from Transport Canada and other approvals related to aircraft operations and safety if the project includes the development of a helipad or facilities to access the site by air; and • Approvals from NSE pursuant to the Environment Act (e.g. watercourse/wetlands alterations) [ 37 ] The Minister proceeded to set out several additional steps that “will be required as part of the DNR process before a request for approval to convey the requested Crown lands can be presented to Cabinet”, including an Integrated Resource Management report : A preliminary records research report was conducted prior to the initial meeting in 2016 to identify encumbrances on the land, but a full report is required, which will take approximately 2 weeks.

While that research is being conducted, the Integrated Resource Management report (IRM) can be conducted. The IRM is a planning and decision making tool used by DNR to ensure a mix of land use activities, minimize conflict and balance social, economic, and environmental benefits from activities on Crown lands. Within the Regional Services Branch of DNR there are three Regional IRM Teams comprised of resource sector professionals including Crown forest planners, wildlife biologists, GIS specialists and other specialties.

IRM is used to provide input into decisions regarding proposed activities on Crown lands and resource use, including legal authorities issued by the Land Services Branch and authorizations issued by other DNR Branches. This step will take approximately 30 days. [ 38 ] The Minister then said the following about aboriginal consultation: The Government of Nova Scotia is committed to making decisions in a manner that is consistent with the recognition and affirmation of existing and asserted Aboriginal and treaty rights.

Consultation with the Mi’kmaq of Nova Scotia and accommodation where required, and appropriate, occurs when contemplating conduct that has the potential to adversely impact established and/or asserted Mi’kmaw Aboriginal rights. If an Environmental Assessment is not required for the project, then DNR will lead consultation with the Mi’kmaq of Nova Scotia. In that case, the consultation would be initiated at the same time the IRM is started.

The timing to complete consultation will depend on the potential impacts identified and options for addressing those impacts. [ 39 ] The Minister closed by noting that additional approvals would be required if Lighthouse Links intended to develop a marina, build wharves, or install shoreline protection measures: If there is an intention to develop a marina, build wharves or put in place shoreline protection measures (e.g. armourstone), approvals would be required from DNR for work on any submerged Crown lands as well as possibly from NSE (e.g. if depositing any dredged materials and for any watercourse alteration).

It could also require permits from the Federal Department of Fisheries and Oceans, Navigation Protection and Transport Canada. For DNR, the permit process can up ( sic ) to 6 months, but it would depend on the scope of the project (wharf vs. marina). [ 40 ] On October 23, 2017, Leslie Hickman at DNR emailed Mr. Gilbert to inform him that “a more detailed project/business plan is being requested in order to fully assess your plans for the Crown lands being requested.” On November 27, Sean Glover emailed Ms.

Hickman, stating in part: I know we’d had some discussion on your understanding that a business plan would be required before we could go any further, but such a plan would be difficult to prepare in the absence of property specific knowledge that we can only gain by accessing the property. [ 41 ] Ms. Hickman replied to Mr. Glover on November 28 as follows: Hi Sean, I spoke with the Deputy today and she confirmed that an updated business plan is still required as the next step.

Please feel free to contact me if you want to discuss options to allow access to the site to gather information required for the plan development or any other matters related to the request. This updated business plan was apparently never provided to the Province. [ 42 ] In July 2018, Lighthouse Links delivered a “Proposal for Exchange or Purchase of Lands” regarding Owls Head.

The proposal explained that Lighthouse Links wished to use land from the Provincial Crown, the Federal Crown (40 acres, including the Owls Head automated lighthouse), and parties affiliated with the company to construct a series of golf courses and “to develop a destination residential or resort community, with the intent of encouraging more tourists, visitors, and others to visit and live in the Eastern Shore”.

Lighthouse Links noted that it had engaged a well-known golf course architect who had developed preliminary plans for three courses, set out in a series of exhibits attached to the proposal. [ 43 ] Lighthouse Links went on to note: This development should encourage more native Nova Scotians, along with tourists, visitors, and others, to come to the Eastern Shore, in expectation of creating a bedroom community for families working in the Halifax/Dartmouth area, could attract industry, and provide additional jobs for up to 150-200 people for the golf courses alone on an ongoing basis.

Spin-off businesses should provide other

economic benefits to the Eastern Shore. This project would tie in well to the current housing and tourism boom being experienced in and around Halifax and elsewhere in Nova Scotia. Additional jobs would be created to construct the residential and commercial buildings. We estimate that it would take approximately three (3) years from breaking ground to complete the first course… [ 44 ] Lighthouse Links also provided details of the cost estimates it had received for the development.

The company estimated the cost to construct the first course at $12.6 million, excluding the cost of building the infrastructure – the club house, lodging, a maintenance shed, parking, etc.

Lighthouse Links explained that the costs would be much higher than the typical golf course because “it would have to be built on ledge and sand is not easily available.” The company noted that it would not be able to refine its cost estimates without an onsite evaluation of the terrain: Refining our cost estimates requires an onsite evaluation of the terrain over which the courses would be built – which currently can’t be accessed by construction because there are no roads. We anticipate finding additional savings as well after an onsite evaluation.

In order to refine the cost estimates, two roads capable of handling construction vehicles from the existing road in Southwest Cove, would be required, one on either side of Long Cove. We estimate that about 2.5 miles of roads will be needed at a cost of approximately $370,000. [ 45 ] In September 2018, Lighthouse Links provided DNR with an appraisal report from Turner Drake & Partners, which attributed a market value of $250,000 to the Owls Head lands.

Turner Drake explained that its appraisal was premised upon the basis that the property would be used for its highest and best use, which it defined as “that use which will produce the greatest net return for the foreseeable future.” Turner Drake’s opinion on the highest and best use is set out at p. 12 of the report: The majority of the property is zoned as regional parkland which precludes most development. Any development would require alteration of the municipal planning strategy and zoning.

The majority of the property is identified as part of an existing Regional Park, it is similarly recognized as a park in the recently adopted (August 2018) Green Network Plan. The use of the Subject Property for anything other than what it is currently enabled under its zoning would require significant policy changes at the highest levels of municipal planning authority. Requests for amendments to policy at this level carry no guarantee that they will even be considered by Council, and no opportunity for appeal to the UARB if denied. Such changes would be highly unlikely.

Having regard to the foregoing, we are of the opinion that the Highest and Best Use of the subject property is for recreational or conservation purposes. [ 46 ] In December 2018, representatives of Nova Scotia Environment and the Department of Lands and Forestry (as it is now called) met with representatives of Lighthouse Links. Notes from the meeting suggest that the Province reiterated the need for Cabinet approval to remove Owls Head from the PAPA, and raised other outstanding issues including municipal approvals, an IRM, aboriginal consultation, and, if necessary, an environmental assessment.

The Treasury and Policy Board Decision [ 47 ] In February 2019, the Minister of Environment and the Minister of Lands and Forestry submitted a Memorandum to Executive Council (MEC), entitled “Decision on whether to withdraw Crown lands at Owls Head identified for protection in the Parks and Protected Areas Plan”, along with a Communications Plan. Both the MEC and the Communications Plan in the record have been substantially redacted.

The MEC indicates that it was prepared by Matt Parker, Director, Parks, Outreach and Service Delivery, and was reviewed by several other staff at the Department of Lands and Forestry and Nova Scotia Environment. [ 48 ] The MEC

summary indicates that “[a] decision is being sought whether to withdraw Crown lands identified for potential protection as ‘Owls Head Provincial Park’ under the 2013 Parks and Protected Areas Plan.” It goes on to note that if Executive Council decides to remove Owls Head from the PAPA, “the required review processes would be conducted to assess the request, including consultation with the Mi’kmaq of Nova Scotia, and a subsequent approval to sell the Crown lands would need to be submitted to Cabinet” (p. 1). [ 49 ] The MEC outlines the proposal from Lighthouse Links at p. 2: The Company is proposing to build two or three world-class oceanfront links public golf courses, a clubhouse, inn and other related facilities.

The balance of the land will be used to develop a destination residential or resort community and provide public access to environmental/recreational features on the lands, with the intent of encouraging more tourists to visit and people to live in the Eastern Shore. … The Company states that the proposal would have economic benefits for the area by enhancing tourism and increasing employment on the Eastern Shore. The Company projects that the golf courses could attract industry and provide additional jobs for 150-200 people on an ongoing basis.

The Company anticipates spin-off businesses and the development of a bedroom community to result in the creation of additional jobs to construct the residential and commercial buildings, and further economic benefits for the area. [ 50 ] The MEC then provides information about the PAPA and its relationship to the EGSPA and other government policy: Prepared jointly by NSE and L&F and approved by Executive Council in 2013, the PAPA Plan was developed to support government in meeting and maintaining the EGSPA goal to legally protect at least 12% of the total land mass of the province by 2015.

The PAPA Plan includes enough lands to also achieve government’s more recent mandate to move towards 13% protected land across the province while

ensuring a balance so there are no negative recreational or economic effects. … The development of the PAPA Plan took into account scientific research, consultations involving members of the public and Nova Scotia’s Mi’kmaq, and work with key stakeholders. NSE and L&F sought feedback on a proposed PAPA Plan (February 2013) to determine how well the plan reflected what was heard in the past and to find out what changes various groups and individuals wanted for a final parks and protected areas plan for Nova Scotia.

The PAPA Plan is being implemented in a phased approach working towards the Province’s protected lands commitment. Government indicated to the public that all provincially owned lands included in the PAPA Plan will be managed under interim guidelines until they are legally protected or released from further protection consideration. As sites come forward for designation, NSE and L&F undertake additional planning, legal, and survey work prior to the final legal designation of the lands under protection legislation.

The Provincial Parks Act sets out the process required to obtain legal status as a “park reserve” through Governor in Council approval. (p. 2) [ 51 ] The protection and broader ecological values of the Owls Head lands are detailed at pp. 2-3: In the approved PAPA Plan, Owls Head was proposed for designation as a provincial park. The protection values for Owls Head identified in the PAPA Plan include a variety of coastal barrens and wetlands; exceptional bedrock-ridged topography; coastal access; and, occurrences of nesting Piping Plovers.

L&F biologists have identified two occurrences of Species at Risk – the Piping Plover (listed endangered provincially and nationally) and the Barn Swallow (listed as provincially endangered; nationally threatened). Part of Owls Head was confirmed as significant habitat for nesting Piping Plovers. Occurrences of other species of conservation include Ruby- crowned Kinglet and Common Eider. Owls Head includes one of nine sites in the province for the globally rare Coastal Broom Crowberry Heathland Ecosystem .

Broader ecological values of the area are similar to other coastal areas of Nova Scotia, offering foraging, breeding and migratory habitat for birds and other faunal species, as well as unique borsal and temperate plants and lichens. There are local interests in land and conservation and community-based economic development associated with the natural and cultural assets along the Eastern Shore, including those of the Wild Islands Tourism Advancement Partnership (WITAP).

The remaining four pages of the MEC are redacted. [ 52 ] The Communications Plan, prepared by Steven Stewart, Communications Officer at the Department of Lands and Forestry, is heavily redacted but includes the following information under “Background/Context”: While Owls Head has been managed by Lands and Forestry as a park reserve, it is not legally designated as a provincial park or reserve. Lands and Forestry has not prioritized designation of these lands and has no plans to develop parks infrastructure at this site.

Protection values associated with the Owls Head lands include both typical and unique coastal habitat, and several species of conservation concern.

The potential park has also been highlighted as supporting the goals of the community based Wild Islands Tourism Advancement Partnership (WITAP) that is focused on expanding regional economic opportunities through experiential tourism development associated with the natural and cultural assets of the coastal islands, headlands, and related tourist offerings. (p. 1) [ 53 ] It was against this factual and informational backdrop that the Treasury and Policy Board decided, by way of a minute letter, to remove Owls Head from the PAPA in March 2019.

The Letter of Offer [ 54 ] After the Treasury and Policy board made its decision, Turner Drake provided Lighthouse Links with a revised appraisal report in which the Owls Head property’s market value was assessed at $216,000 ($306 per acre). [ 55 ] As in the first report, the effective date of the valuation and the date of inspection is August 21, 2018. An examination of the two reports indicates that the first report assessed the value of 744.12 acres of land, while the second assessed only 705.21 acres.

This suggests the first appraisal report included the lands owned by the Federal Crown. [ 56 ] In December 2019, the Minister of Lands and Forestry and Lighthouse Links signed the LOO. The LOO is subject to a variety of terms and conditions, including the following: 1. This Offer is subject to the approval of Cabinet and/or the Minister of the Department. … 4. The sale of the Property is subject to the Department completing an Integrated Resource Management Review. … 6.

The Property will be sold for $306 per acre, as determined by the report prepared by an Accredited Appraiser Canada Institute (AACI) qualified appraiser, dated August 26, 2019. The final purchase price to be determined when the approved survey plan has been completed. 7.

It is the Purchaser’s responsibility to obtain all applicable permits, authorizations or approvals required from the applicable level of government required for the Purchaser’s intended use of the Property… The Department does not, by the act of issuing this offer, covenant or provide any assurance that any other required permits, authorizations or approvals will be issued by the Province of Nova Scotia, any other level of government or any other body.

… 10. The Purchaser represents and warrants to the Department that the Purchaser’s intentions for future use of the Property including with respect to the Project have been fully disclosed to the Department, including any information it has or obtains including any project report detailing the Project that could affect the Province’s approval to proceed with the proposed sale of the Property as all such information is needed in order to complete the Department’s reviews and consultations and before cabinet approval can be sought. … 17.

The sale of the Property is subject to the Province being satisfied that it has fulfilled its duty to consult with the Nova Scotia Mi’kmaq Chiefs under the August 31, 2010 Mi’kmaq-Nova Scotia-Canada Consultation Terms of Reference (TOR) regarding the proposed sale of Crown lands… 18. The sale of the Property is subject to public engagement being concluded to the satisfaction of the Department. … 20.

In the event the sale does not receive approval of Cabinet or the Minister, the Purchaser will be notified by the Department that the sale of the Property cannot proceed, and the Offer shall immediately terminate… [ 57 ] It was around this time that the general public learned of the removal of Owls Head from PAPA by way of Mr. Gorman’s article. On January 1, 2020, Ms. Markovits wrote to the Premier to voice her concerns.

The then-Minister of Lands and Forestry, Iain Rankin, replied on the Premier’s behalf, and stated: When the Department receives an application to sell Crown lands, it is reviewed following relevant processes. The transaction under review to sell the Crown lands referred to as Owls Head will undergo the usual due diligence reviews and assessments, including seeking approval by Cabinet before it would be sold. … If the Crown lands are sold, any proposed development would be subject to all applicable Municipal, Provincial and Federal legislation, approvals and authorizations required for the proposed development.

In addition, lands are screened for any records of species-at-risk known to occur on site; and destroying or disturbing endangered or threatened species or their nesting and denning habitats is prohibited by federal and provincial law. It is government’s role to balance the need to protect land with the need to allow economic activity in an area. We continue to examine areas both inside and outside the Parks and Protected Areas plan for designation. Government remains committed to protecting the province’s most valuable biodiversity and habitats.

That is why we recently designated 17 more sites as protected areas. We are also working to finalize another group of sites. All together, these sites will protect more than 14,000 hectares and bring our total land protected to about 12.75%. That brings us closer to our goal of 13%. [ 58 ] The applicants subsequently brought this application for judicial review. Issues [ 59 ] This application raises a host of issues including justiciability, standing, prematurity, procedural fairness, the public trust doctrine, and substantive review.

Some of the issues apply to both impugned decisions, while the issue of prematurity relates only to the applicant’s challenge to the LOO. In addition, some of the issues are interrelated. For example, whether the applicants have raised a justiciable issue is also relevant to whether they can establish public interest standing. [ 60 ] This decision will consider the following issues: 1. Was the decision to remove Owls Head from the PAPA made by the Minister of Lands and Forestry, or by the Treasury and Policy Board? 2. Are the decisions justiciable? 3.

Does the Treasury and Policy Board’s decision raise a jurisdictional issue? 4. Do the applicants have standing to bring this application? 5. Were the applicants owed procedural fairness in relation to the decisions under review? 6. Were the decisions under review reasonable? Who made the decision to de-list Owls Head? [ 61 ] In their pre-hearing brief, the applicants argue that, for the purposes of judicial review, the decision to remove Owls Head from the PAPA should be attributed to the Minister of Lands and Forestry, not the Treasury and Policy Board.

Essentially, they submit that although the Treasury and Policy Board issued the minute letter, the decision was made at the request of the Minister. The applicants

note that it is the Minister, not the Board, who is responsible for the management and control of Crown lands and provincial parks. The applicants write at p. 23 of their brief: The Applicants question whether the Minister needed approval from the T&PB to remove Owls Head Provincial Park from the Parks and Protected Areas Plan. There is no indication that the TP&B approved the creation of the Parks and Protected Areas Plan before the Plan was released to the public, so why did the Minister seek approval from the T&PB to remove Owls Head from the PAPA?

The Applicants submit that seeking approval from the T&PB was an attempt by the Minister to insulate himself from public accountability and possibly from legal review. [ 62 ] The respondents and the intervenor say the Treasury and Policy Board is the policy-making committee of the Executive Council, and the decision whether to remove Owls Head from the PAPA was within its mandate.

The respondents further note that, according to p. 2 of the MEC, the PAPA was put before and approved by Executive Council in 2013. [ 63 ] In my view, the record clearly demonstrates that the decision to remove Owls Head from PAPA was made by the Treasury and Policy Board. If the Board acted without jurisdiction, its decision would be a nullity.

It is not open to the court to simply deem the decision to have been made by the Minister when the record indicates otherwise. [ 64 ] Before moving on, I note that my decision on this point is consistent with Justice Chipman’s finding on a preliminary evidentiary motion in this matter. In dismissing the applicants’ motion to supplement the record, Chipman J. rejected the applicants’ position that both decisions were made by the Minister: [6] In the main the Applicants argue that the Record is incomplete.

They submit that it must be expanded to have all of the documents they say were before the Minister when he decided to request de-listing of Owls Head from PAPA and to enter into a LOO with the Intervenor, Lighthouse Links Development Company. At this juncture, I pause to again point out that the Applicants have characterized the decision as one of the Minister; however, based on the totality of the material before me, I have concluded differently.

That is to say, I am of the firm view that the material establishes that there were two decisions; one made by the T&PB on March 13, 2019 and the other by the Minister on December 16, 2019. ( Bancroft v. Nova Scotia (Minister of Lands and Forestry), 2020 NSSC 370 ) The applicants did not appeal Justice Chipman’s decision. Are the decisions justiciable? [ 65 ] The parties disagree on whether the decisions raised by the applicants are justiciable – that is, whether they are reviewable by the court.

If the decisions cannot be reviewed, that obviously ends the matter. [ 66 ] The Federal Court of Appeal explained the concept of justiciability in Hupacasath First Nation v. Canada (Minister of Foreign Affairs) , 2015 FCA 4 : [62] Justiciability, sometimes called the "political questions objection," concerns the appropriateness and ability of a court to deal with an issue before it.

Some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government. [63] Whether the question before the Court is justiciable bears no relation to the source of the government power. … [ 67 ] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall , 2018 SCC 26 , Rowe J., for the court, described it this way: [32] … Justiciability relates to the subject matter of a dispute.

The general question is this: Is the issue one that is appropriate for a court to decide? [33] Lorne M. Sossin defines justiciability as a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life.

In short, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable. ( Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p. 7) Put more simply, “[j]usticiability is about deciding whether to decide a matter in the courts”: ibid., at p. 1. [34] There is no single set of rules delineating the scope of justiciability.

Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter : see Sossin, at p. 294. In determining this, courts should consider “that the matter before the court

would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis forthe claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or politicalbody has been given prior jurisdiction of the matter by statute” (ibid.). [Emphasis added] [68] The Nova Scotia Court of Appeal recently applied Highwood Congregation in Sorenson v.

Swinemar, 2020 NSCA 62, where itconcluded that the court had neither the institutional capacity nor the legitimacy to review MAID assessments: [62] I will now consider the two factors underlying justiciability—legitimacy and the institutional capacity of the courts. [63] A court’s legitimacy to adjudicate a matter includes a consideration of whether the subject matter advanced for judicial scrutinyhas been placed with another decision maker.

As I will explain below, it is clear Parliament fully intended, provided it is undertaken in amanner consistent with the law, the determination of MAID eligibility should rest with authorized medical and nursing professionals notwith judges. The Province of Nova Scotia has not enacted legislation that contemplates judicial intervention in assessing MAIDeligibility.

I am also satisfied the institutional capacity of the courts is not well-suited to respond to the time-sensitive nature ofchallenges advanced in relation to MAID eligibility assessments. [69] The respondents argue that the court’s authority to review Cabinet-level decisions involving matters of public policy isextremely limited, and does not include assessing the reasonableness of those decisions.

They say the applicants are asking the court toexamine the internal policy-making process of the legislature and to scrutinize the adequacy of its policy decisions regarding thedesignation of provincial parks or park reserves. The respondents rely on Thorne’s Hardware Ltd. v. The Queen, (SCC),[1983] 1 S.C.R. 106, Dixon v. Canada (Governor in Council), (FCA), [1997] F.C.J. No. 985 (C.A.), and David SuzukiFoundation v. British Columbia (Attorney General), 2004 BCSC 620. [70] In Thorne’s Hardware, the appellants sought judicial review of a federal order in council that extended the limits of the Port ofSaint John.

As a result of the extension, the appellants’ water lot was brought within the port limits and their vessels were subjected tosubstantial harbour tolls. Dickson J. (as he then was), writing for a unanimous court, cautioned that the courts’ ability to review adecision of this nature is limited: The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review... I have nodoubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there is thereforefatal jurisdictional defect.

Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutoryprocedures have been properly complied with… Decisions made by the Governor in Council in matters of public convenience andgeneral policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an orderin council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action.

This is notsuch a case. (p. 111) [71] The appellants asked the court to examine and weigh the evidence of the Governor in Council’s motives in passing the order incouncil, and argued that it was passed for an improper purpose (namely, to increase the National Harbour Board’s revenues). JusticeDickson declined this invitation, noting that “[i]t is neither our duty nor our right to investigate the motives which impelled the federalCabinet to pass the Order in Council”: p. 112.

He also noted that “governments may be moved by any number of political, economic,social or partisan considerations”, and that although there were no reasons for the decision, the evidence indicated that there were othermotivating factors, such as the rationalization of maritime activity in the region: pp. 112-113. Justice Dickson ultimately concluded that: …the issue of harbour extension was one of economic policy and politics; and not one of jurisdiction or jurisprudence.

The Governor inCouncil quite obviously believed that he had reasonable grounds for passing Order in Council P.C. 1977-2115 extending the boundariesof Saint John Harbour and we cannot enquire into the validity of those beliefs in order to determine the validity of the Order in Council. (p. 115) [72] The Federal Court of Appeal in Dixon relied upon Justice Dickson’s reasoning in Thorne’s Hardware. In Dixon, a federalcommission investigating certain aspects of a peacekeeping mission to Somalia requested several extensions to the deadline to completeits report.

The first two requests were approved by the Governor in Council, who issued orders in council moving the deadline fromDecember 22, 1995, to March 31, 1997. When the commission requested to further extend the deadline to September 30, 1997, however,the Governor in Council issued an order in council pushing the deadline back only until June 30, 1997. The respondent was a formerspecial advisor to the Minister of National Defence who sought standing to participate in the inquiry. The commission refused therespondent’s request, citing the truncated deadline as a reason for the denial.

The respondent then brought judicial review proceedings toquash the order in council. Although he was successful in the Trial Division, the Court of Appeal set aside that decision, and restored theorder in council. In doing so, the Court of Appeal noted: 17 It may well be that the refusal of the Governor in Council to extend the life of the Commission for the entire period requested by theCommissioners was motivated by political expediency, but that is simply not the business of the Court.

It is a well-establishedprinciple of law and a fundamental tenet of our system of government, in which Parliament and not the Judiciary is supreme,that the courts have no power to review the policy considerations which motivate Cabinet decisions. Absent a jurisdictional error ora challenge under the Canadian Charter of Rights and Freedoms, where Cabinet acts pursuant to a valid delegation of authorityfrom Parliament, it is accountable only to Parliament and, through Parliament, to the Canadian public, for its decisions.

In otherwords, the validity of an Order in Council is measured against the statutory conditions precedent to its issuance, and not by its content.Dickson J. (as he then was) made this point clear in Thorne's Hardware v. The Queen… [Emphasis added] [73] The reasoning in Thorne’s Hardware was also cited by Justice Hood of the British Columbia Supreme Court in David SuzukiFoundation. In that case, the petitioners applied for judicial review of a provincial order in council exempting timber from northwesternBritish Columbia from an export prohibition.

In determining the degree to which the order in-council could be judicially reviewed,

Justice Hood reviewed the leading cases and summarized their essential points as follows: [ 119] …in the exercise of a legislative power given to it by statute, the LGIC must stay within the boundary of the enabling statute, both as to empowerment and purpose. It is otherwise free to exercise its statutory power without interference by the Court, except in an egregious case or where there is proof of an absence of bona fides .

The Court has a jurisdictional supervisory role to determine whether the LGIC acted within its boundary. [120] Additionally, Thorne’s Hardware , supra, reminds us that decisions made by the Lieutenant Governor in Council in matters of pure public convenience and general policy, which are not matters of law or jurisdiction, are final and not reviewable by the Court. In order to strike down such an Order in Council there must be remarkable or shocking reasons for doing so.

I would suggest that Roncarelli , supra, might be an example of this perhaps rare occasion. [121] The important factor is the subject matter of the decision. Where it involves the consideration of political, economic, social, and other matters so vital to the legislators, but which the Courts are ill-equipped to weigh or consider, the Court must defer to legislators where no error in law or jurisdiction is found… [ 74 ] Justice Hood went on to state, in relation to the leading cases: [138] … None of these cases say that "legislative" orders of the Governor in Council under a statute are immune from review.

They do say that if the enabling provision and the purpose of the statute entitles the Governor in Council to do what it did, there is no jurisdictional or other error of law and there is an end to the matter. [139] In my view, and with respect, in a sense it was not necessary for Dickson J. to go on to say, at 111 in Thorne's Hardware , that "decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings." I say this because he had already set the parameters of the Court's review, being law and jurisdiction.

If no legal or jurisdictional error was found that ended the matter. At 115, when he speaks of his purpose in referring to the "several pieces of evidence", what he is saying is that he confirmed that the issue before the Court was not one of jurisdiction or jurisprudence and that ended the matter; although he went on to say what it actually was, matters of economic policy and politics which were not reviewable by the Court. [140] I think that this

interpretation explains what Estey J. was saying in Inuit , supra at 758. While acknowledging that the questions before him were legislative in nature, he did not find it necessary to reiterate the well-known principle that economic policy, politics, and the like are matters solely for consideration by the legislature, not the Courts. He simply focussed on the narrow issue, which was determinative that the Court's only role was to see that the executive did not act outside the terms of the enabling statute.

This principle also brings home the significance of his advice that the Courts should not continue to search for words that will clearly and invariably differentiate between administrative and legislative decisions, because the characterization of the decisions does not really matter when the issue to be decided is whether the Council performed its function within the boundary of the legislative grant and mandate. [Emphasis added] [ 75 ] After reviewing these authorities, the respondents note at p. 34 of their brief: 113. At this juncture, it bears emphasizing that the Minister is a member of Executive Council.

Accordingly, the principles governing review of a Cabinet-level decision are also persuasive in the context of a policy-laden exercise of Ministerial discretion. See, for example, the following comments by Sara Blake at page 223 of Administrative Law in Canada , 5th ed.: Query whether the standard of review analysis should apply at all to the merits of discretionary decisions by elected officials, such as Cabinet or a Minister. Elected officials are accountable to the legislature and, ultimately, to the ballot box.

Historically their decisions were reviewable only if they acted outside the terms of the enabling statute or abused their powers. Their motives are not justiciable. 114. To summarize, discretionary decisions of policy at the Cabinet or Ministerial level should not be judicially reviewed unless the applicant can point to proof of bad faith or other shocking circumstances (e.g., intentional misfeasance in public office), or unless the decision-maker committed a jurisdictional error by exceeding the bounds of (or failing to comply with) their enabling legislation.

The court cannot review the wisdom, merits, or motives of the decision, and must instead defer to the executive branch on these issues. [ 76 ] The applicants say the respondents’ authorities are distinguishable because the decisions in those cases were specifically authorized under legislation. For example, in Thorne’s Hardware , the National Harbours Board Act, R.S.C. 1970, c. N-8, authorized the Governor in Council to set the boundaries of the Port of Saint John by way of an order.

In David Suzuki Foundation , the Forest Act, R.S.B.C. 1996, c. 157 , authorized the Lieutenant Governor in Council to make an order in council regarding “blanket standing timber exceptions”. The applicants say there is no such similar legislative direction to the Executive Council concerning the management of Nova Scotia’s Crown lands. [ 77 ] The intervenor, for its part, suggests the decisions are not reviewable at all. It cites Tanudjaja v.

Canada (Attorney General) , 2014 ONCA 852 , where the Ontario Court of Appeal considered an application brought by four individuals and an organization devoted to human rights and equality rights in housing, alleging that actions and inaction on the part of Canada and Ontario have resulted in homelessness and inadequate housing. They argued that the governments had taken an approach that violated their s. 7 and s. 15 rights under the Charter . The appellants did not challenge any particular legislation or policy.

Instead, they alleged that the social conditions created by the overall approach of the federal and provincial governments violated their rights to adequate housing. The motion judge struck the application on the basis that it disclosed no reasonable cause of action and was not justiciable. The majority of the Court of Appeal, affirming the motion judge, defined justiciability as follows: [19] I would uphold the motion judge's conclusion that this application is not justiciable.

In essence, the application asserts that Canada and Ontario have given insufficient priority to issues of homelessness and inadequate housing.

[20] As indicated in Canada (Auditor-General) v. Canada (Minister of Energy, Mines & Resources), (SCC), [1989] 2S.C.R. 49 at 90-91, "[a]n inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter ofconstitutional judicial policy of the courts deciding a given issue, or instead deferring to other decision making institutions of the polity." [21] Having analysed the jurisprudence relating to justiciability in Lorne M.

Sossin, Boundaries of Judicial Review: The Law ofJusticiability in Canada, 2d ed. (Toronto: Carswell, 2012), the author identified several relevant factors, at p. 162: Political questions, therefore, must demonstrably be unsuitable for adjudication. These will typically involve moral, strategic,ideological, historical or policy considerations that are not susceptible to resolution through adversarial presentation of evidence or thejudicial process.

Justiciable questions and political questions lie at opposing ends of a jurisdiction spectrum. ... [T]he political nature of a matter raises two related dilemmas for courts. The first is the dilemma of institutional capacity. Courts aredesigned to make pronouncements of law. Arguably, they accomplish this goal more effectively and efficiently than any other institutioncould.

Where the heart of a dispute is political rather than legal, however, courts may have no particular advantage over other institutionsin their expertise, and may well be less effective and efficient than other branches of government in resolving such controversies, as thejudiciary is neither representative of the political spectrum, nor democratically accountable. [78] The majority went on to note: [33] Finally, there is no judicially discoverable and manageable standard for assessing in general whether housing policy is adequate orwhether insufficient priority has been given in general to the needs of the homeless.

This is not a question that can be resolved byapplication of law, but rather it engages the accountability of the legislatures. Issues of broad economic policy and priorities areunsuited to judicial review. Here the court is not asked to engage in a "court-like" function but rather to embark on a course moreresembling a public inquiry into the adequacy of housing policy. [34] Were the court to confine its remedy to a bare declaration that a government was required to develop a housing policy, that wouldbe so devoid of content as to be effectively meaningless.

To embark, as asked, on judicial supervision of the adequacy of housing policydeveloped by Canada and Ontario takes the court well beyond the limits of its institutional capacity. All agree that housing policy isenormously complex. It is influenced by matters as diverse as zoning bylaws, interest rates, procedures governing landlord and tenantmatters, income tax treatment of rental housing, not to mention the involvement of the private sector and the state of the economygenerally. Nor can housing policy be treated monolithically.

The needs of aboriginal communities, northern regions, and urban centresare all different, across the country. [35] I add that complexity alone, sensitivity of political issues, the potential for significant ramifications flowing from a court decisionand a preference that legislatures alone deal with a matter are not sufficient on their own to permit a court to decline to hear a matter onthe ground of justiciability: see, for example, Chaoulli, at para. 107. Again, the issue is one of institutional competence.

The question iswhether there is a sufficient legal component to anchor the analysis. [Emphasis added] [79] I will start with Tanudjaja, which is clearly distinguishable from the present case. In Tanudjaja, the appellants did notchallenge any specific legislation or policy. Instead, they asserted that the federal and provincial governments had given insufficientpriority to issues of homelessness and inadequate housing. The matters raised were not capable of resolution through the application oflaw. In the present case, the applicants have challenged two specific decisions.

They say that both decisions were procedurally unfair andsubstantively unreasonable. In addition, in Hupacasath First Nation, the Federal Court of Appeal noted that truly non-justiciable casesare very rare: [67] These cases show that the category of non-justiciable cases is very small. Even in judicial reviews of subordinate legislationmotivated by economic considerations and other difficult public interest concerns, courts will still assess the acceptability anddefensibility of government decision-making, often granting the decision-maker a very large margin of appreciation.

For thatreason, it is often said that in such cases an applicant must establish an “egregious” case: see, e.g., Thorne’s Hardware v. Canada, (SCC), [1983] 1 S.C.R. 106 at page 111, 143 D.L.R. (3d) 577; Katz Group Canada Inc. v. Ontario (Health and Long-TermCare), 2013 SCC 64, [2013] 3 S.C.R. 810 at paragraph 28. But the matter is still justiciable. [Emphasis added] [80] The cases referred to by the respondents, Thorne’s Hardware, Dixon, and David Suzuki Foundation, held that the court has nopower to review the policy considerations which motivate Cabinet decisions.

The court’s review is limited to issues of law andjurisdiction. Again, in Thorne’s Hardware, Dickson J. wrote at p. 111: I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there istherefore fatal jurisdictional defect.

Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see thatstatutory procedures have been properly complied with… [81] Likewise, in Suzuki, Justice Hood noted at para. 119: [119] …in the exercise of a legislative power given to it by statute, the LGIC must stay within the boundary of the enablingstatute, both as to empowerment and purpose. It is otherwise free to exercise its statutory power without interference by the Court,except in an egregious case or where there is proof of an absence of bona fides.

The Court has a jurisdictional supervisory role todetermine whether the LGIC acted within its boundary. [Emphasis added]

[82] In my view, the scope of review prescribed by these decisions is consistent with more recent case law on judicial review andthe reasonableness standard. The rule of law dictates that “all exercises of public authority must find their source in law”, and that “[a]lldecision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution”:Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 28.

Judicial review is the means by which the courts ensure that statutory decision-makers act within the boundaries of their legal authority, which includes exercising that authority reasonably. [83] In Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, McLachlin C.J., for the court, rejected the distinctiondrawn in Thorne’s Hardware between policy and legality and held that delegated legislation is in fact subject to review forreasonableness: [14] Against this general background, I come to the issue before us -- the substantive judicial review of municipal taxation bylaws. InThorne's Hardware Ltd. v.

The Queen, (SCC), [1983] 1 S.C.R. 106, at p. 115, the Court, referring to delegatedlegislation, drew a distinction between policy and legality, with the former being unreviewable by the courts: The Governor in Council quite obviously believed that he had reasonable grounds for passing Order in Council P.C. 1977-2115extending the boundaries of Saint John Harbour and we cannot enquire into the validity of those beliefs in order to determine the validityof the Order in Council. (See also pp. 111-13) However, this attempt to maintain a clear distinction between policy and legality has not prevailed.

Inpassing delegated legislation, a municipality must make policy choices that fall reasonably within the scope of the authority thelegislature has granted it. Indeed, the parties now agree that the tax bylaw at issue is not exempt from substantive review in this sense. [Emphasis added] [84] Chief Justice McLachlin continued: [15] Unlike Parliament and provincial legislatures which possess inherent legislative power, regulatory bodies can exercise only thoselegislative powers that were delegated to them by the legislature. Their discretion is not unfettered.

The rule of law insists on judicialreview to ensure that delegated legislation complies with the rationale and purview of the statutory scheme under which it isadopted. The delegating legislator is presumed to intend that the authority be exercised in a reasonable manner. Numerous caseshave accepted that courts can review the substance of bylaws to ensure the lawful exercise of the power conferred on municipal councilsand other regulatory bodies … [16] This brings us to the standard of review to be applied. The parties agree that the reasonableness standard applies in this case.

Thequestion is whether the bylaw at issue is reasonable having regard to process and whether it falls within a range of possible reasonableoutcomes (Dunsmuir, at para. 47). [17] Where the parties differ is on what the standard of reasonableness requires in the context of this case. This is the nub of thedispute before us. … [18] The answer lies in Dunsmuir’s recognition that reasonableness must be assessed in the context of the particular type ofdecision making involved and all relevant factors. It is an essentially contextual inquiry (Dunsmuir, at para. 64). As stated inCanada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59, per Binnie J., “[r]easonableness is asingle standard that takes its colour from the context.” The fundamental question is the scope of decision-making power conferredon the decision-maker by the governing legislation. The scope of a body’s decision-making power is determined by the type ofcase at hand. For this reason, it is useful to look at how courts have approached this type of decision in the past (Dunsmuir, at paras. 54and 57). To put it in terms of this case, we should ask how courts reviewing municipal bylaws pre-Dunsmuir have proceeded.

Thisapproach does not contradict the fact that the ultimate question is whether the decision falls within a range of reasonable outcomes. Itsimply recognizes that reasonableness depends on the context. [19] The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionallyaccorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects theircommunity as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions.

Rather, theyinvolve an array of social, economic, political and other non-legal considerations. “Municipal governments are democratic institutions”,per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, at para. 33.

Inthis context, reasonableness means courts must respect the responsibility of elected representatives to serve the people whoelected them and to whom they are ultimately accountable. [20] The decided cases support the view of the trial judge that, historically, courts have refused to overturn municipal bylawsunless they were found to be “aberrant”, “overwhelming”, or if “no reasonable body” could have adopted them (para. 80, perVoith J.). … [21] This deferential approach to judicial review of municipal bylaws has been in place for over a century. … [Emphasis added] [85] The Chief Justice rejected the appellant’s position that Dunsmuir changed the law, displacing the traditional deference owedby the court when reviewing municipal by laws: [22] Catalyst argues that Dunsmuir has changed the law and that the traditional deferential approach to the review ofmunicipal bylaws no longer holds.

The bylaw, it argues, must be demonstrably reasonable, having regard to objective criteria relatingto taxation. The reasonableness standard in Dunsmuir, it says, means that all municipal decisions, including bylaws, must meet the test of

demonstrable rationality in terms of process and outcome. … [23] This argument misreads Dunsmuir . As discussed above, Dunsmuir described reasonableness as a flexible deferential standard that varies with the context and the nature of the impugned administrative act. In doing so, Dunsmuir expressly stated that the approaches to review developed in particular contexts in previous cases continue to be relevant ( Dunsmuir , at paras. 54 and 57 ). Here the context is the adoption of municipal bylaws.

The cases dealing with review of such bylaws relied on by the trial judge and discussed above continue to be relevant and applicable. To put it succinctly, they point the way to what is reasonable in the particular context of bylaws passed by democratically elected municipal councils. [24] It is thus clear that courts reviewing bylaws for rea

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