Paradise Active Healthy Living Society v. Nova Scotia (Attorney General)

Paradise Active Healthy Living Society v. Nova Scotia (Attorney General) Court Supreme Court Date 2012-04-11 Citation 2012 NSSC 99 Docket Hfx 308491 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Relations Library Sheet - Paradise Active Healthy Living Society v. Nova Scotia (Attorney General) - 2012 NSSC 99 - 2012-04-11 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: [Paradise Active Healthy Living Society v. Nova Scotia (Attorney General), 2012 NSSC 99] Date: 20120411 Docket: Hfx.308491 Registry: Halifax Between: Paradise Active Healthy Living Society (PAHLS) Applicant v. The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia Respondent Judge: The Honourable Justice C. Richard Coughlan Heard: July 21, 2011 and November 1 , 2011 in Halifax, Nova Scotia Written Decision: April 11, 2012. Counsel: W. Dale Dunlop and Sean MacDonald, for the Applicant Alexander Cameron, for the Respondent Coughlan, J. [1] Paradise is in the Annapolis Valley. As the name suggests it is a lovely community. The abandoned rail corridor passing through the community has been developed as a trail which allows the use of motorized off-highway vehicles. The Paradise Active Healthy Living Society (PAHLS) was incorporated and its members oppose the use of motorized vehicles on the trail in Paradise. [2] In the last part of the twentieth century many railroad corridors in Nova Scotia were abandoned and subsequently acquired by the provincial government. The Province of Nova Scotia (Province) developed a policy document, “A Provincial Policy for Rails to Trails in Nova Scotia” (Rails to Trails Policy), to establish a broad framework for government response as to how to deal with abandoned railway corridors. [3] By Quit Claim Deed dated October 2, 2002 from Trans Canada Trail- Sentier Transcanadien, the Province acquired the Dominion Atlantic Railway Company railway corridors in the Counties of Annapolis, Digby and Yarmouth, Nova Scotia. The grantee in the deed was described as follows: HER MAJESTY THE QUEEN in right of the Province of Nova Scotia represented in this behalf by the Honourable T.A. Olive, Minister of Natural Resources, duly authorized by Order in Council 2002-343 dated July 26, 2002. [4] A proposal was received by the Province from the Annapolis County Trails Society (ACTS) to develop the Dominion Atlantic Railway Corridor into a multi- use recreational trail through Annapolis County. The town of Annapolis Royal notified the Province, by letter dated November 25, 2003, it wished to manage the railway corridor within its town limits as a walking and cycling trail. [5] In April, 2004, two public meetings were held concerning the ACTS proposal. Representatives of the Women’s Institute of Paradise attended and spoke against a motorized trail on the abandoned railway corridor within the village of Paradise and stated an alternative route for a motorized trail in Paradise would have to be found. [6] The Municipality of the County of Annapolis, in which Paradise is located, passed a motion supporting the ACTS proposal as well as a motion requiring if the ACTS proposal was accepted, an alternate route for all-terrain vehicles around Paradise be established. [7] The Province notified ACTS by letter dated June 1, 2005 it was not prepared to accept the ACTS proposal to develop a motorized trail, but could only support a multi-use trail from the Annapolis/Kings County line to the village of Lawrencetown for reasons set out in the letter, including the following concerning Paradise: “During the Public Meetings that were held in April 2004, the Women’s Institute of Paradise voiced their objection to a motorized trail and since that time has solicited support of the community in general and have lobbied their Municipal Government and local MLA. The response from the Municipality was such that is (sic) supported both causes, unanimously consenting to support the issuance of a Letter of Authority by our Department to ACTS and at the same time the group of residents in the Paradise area by sending notice to the Minister of Natural Resources “if a Letter of Authorization is granted: that ACTS find an alternate route around Paradise for use by all terrain vehicles (off highway vehicles).” I was invited to attend a presentation by the group of residents in the Paradise area on May 26, 2005. Unfortunately these citizens do not want a motorized trail in their community.” [8] The Minister of Natural Resources, Richard Hurlbert, was lobbied by residents of Paradise to erect barriers to the east and west of Paradise to prevent use of the railway corridor by motorized vehicles. The Minister replied by letter dated August 23, 2005, stating the ACTS application was being assessed adding: “As stated in the Western Region Outdoor Recreation Coordinator, Mr. Chris Allen’s August 3, 2005 letter to you that if the public recreation trail is approved for the Annapolis County Trail Society, it would be with the provision that the section in the community of Paradise be non motorized. If there is no trail developer for Paradise, my department would then post signs on the Paradise portion of the abandoned rail line indicating that it is for non motorized use.” [9] The Minister, in a letter dated January 11, 2006 addressed to Mrs. Jeanette Foster of the group Concerned Citizens of Paradise, set out the approach developed to address the Paradise trail issue: × The Office of Health Promotion is taking the lead in resolving this rail issue through Paradise. They will be involving the people of Paradise, off-highway vehicle users, land owners, Transportation and Public Works, and Natural Resources in the process to find the alternate route which could be used by ATVs and snowmobiles. × Non-motorized signs will not be posted on the Paradise section of the DAR rail bed until the alternate route is found or by January 2008. This provides up to a two-year time frame to develop the alternate route at which time the non-motorized signs will be erected. × Natural Resource’s ATV Enforcement staff will be giving the Paradise section of the abandoned DAR rail line their priority. This will involve both patrols and education to help ensure all laws are followed and any trail users are respectful of adjoining landowners and other trail users. × Rules of Use for the Paradise section of the abandoned DAR rail line will be developed and posted in the very near future. This will be an interim measure for the period of time until the non-motorized signs are placed and could include a low speed limit for any motorized trail users, noise restrictions, and possible hours of use. × Staff from the Office of Health Promotion with assistance from Natural Resources staff will be open to input from all interested parties in finding the resolution to this trail issue through the community of Paradise.” [10] In January, 2008, barriers were erected and signs posted prohibiting the use of motorized vehicles in that portion of the abandoned railroad corridor within Paradise. The Concerned Citizens of Paradise thanked the Minister of Natural Resources and in response the then Minister, David M. Morse replied to the groups’ spokesperson Reverend Barbara Bishop by e-mail on February 14, 2008: “Thank you for your e-mail regarding the abandoned rail corridor in Paradise. As you are no doubt aware, the Department of Natural Resources announced the closure of the Paradise trail on January 10, 2008. I appreciate your kind words regarding the action taken. Please be assured that we understand that this has been a contentious issue for the community, and we will work to find a solution that both addresses the broader community’s concerns and balances the needs of the specific groups involved. My department, and the Department of Health Promotion and Protection, stand behind the principles established some time ago to manage the abandoned rail corridors. “A Provincial Policy for Rails to Trails in Nova Scotia” endorses a ‘good neighbour’ policy with respect to adjoining landowners, while upholding the overarching management principle to maintain the continuity of the abandoned railway corridor for public recreation. Despite the good intentions of these guiding principles, issues can, and do, arise and we are ready to work with the community to find a solution. We will continue to monitor the situation in Paradise and remain open to working with interested groups to further explore viable options for an alternate route. I clearly would like to see a resolution that allows for a continuous trail, yet addresses the legitimate concerns of the property owners.” [11] The proponents of a motorized trail in the Paradise section of the railroad corridor continued to lobby the government. The Concerned Citizens of Paradise realized the fight over motorized use of the railroad corridor in Paradise was not over and decided to incorporate a Society. In a letter to Minister Morse, dated March 12, 2008, Reverend Bishop, as Chair of the Paradise Active Healthy Living Society, stated the group’s intention; “... to begin the process of applying for a Letter of Authority for non-motorized use of the trail, as mandated by both the Annapolis County Council, and the Department of Natural Resources in 2005.” On April 2, 2008, PAHLS was incorporated. PAHLS did not apply for a Letter of Authority for the railroad corridor within the village of Paradise. [12] The Province continued to deal with the issue of the conflicting views as to whether the railroad corridor should be opened or closed to use by motorized vehicles. The then Premier, Rodney MacDonald wanted the issue opened. In an e-mail to Minister Morse on June 18, 2008 the Premier stated: “I forget (sic) to indicate that Stephan MacNeil is agitated about the trail in his riding.....Given that they have not been able to solve this issue locally.....I’d like to open it up again–MacNeil and I discussed this and agree on the direction–I gave him my word that this would be done as it relates to earlier committments (sic) from this past winter.” [13] Members of PAHLS heard rumours the barriers were to be removed and Reverend Bishop contacted Patricia MacNeil, Executive Director, Planning Secretariat, of the Department of Natural Resources. In an e-mail of June 26, 2008 Ms. MacNeil informed Reverend Bishop the Department intended to undertake a consultation process to attempt to resolve the issue of use of the Paradise railroad corridor. [14] The Province wanted the issue of the use of the Paradise section of the railroad corridor reopened. Patricia MacNeil conducted a series of e-mail correspondence with representatives of off-highway groups concerning the establishment of a committee to address the Paradise situation and what action could be taken to resolve the issue. [15] A meeting of the “Paradise Working Session” was held on July 24, 2008 which included representatives of various off-highway vehicle groups and the Department of Natural Resources (Department) and Nova Scotia Office of Health Promotion and Protection. The first recommendation of the group was to make it clear the policy was to develop shared use of the trail on the abandoned rail line. [16] The Government was looking for a way to deal with the politically charged issue of its decision not to allow motorized vehicles on the railroad corridor within Paradise. [17] The Department hired Jim Neale of Peak Performance Consulting Services to conduct a “Consultation with Paradise Community Groups Regarding OHV Use of Abandoned Rail Lines”. Mr. Neale met with some adjacent landowners, individuals in favour of motorized use, and individuals who did not live in Paradise. [18] Mr. Neal did not meet with individuals opposed to motorized use. PAHLS had retained Mr. Dale Dunlop as counsel. On counsel’s advice, members of PAHLS did not participate in the consultation process. Instead, various property owners signed statements opposing motorized use of the rail bed. Mr. Dunlop provided Mr. Neale with copies of the statements prior to the consultation. Mr. Neale informed Mr. Dunlop by e-mail on September 3, 2008, that his was a consultation process and the statements were outside his process, adding perhaps, Patricia MacNeil could be contacted with responses outside his process. The statements were sent by Reverend Bishop to Minister Morse by letter dated September 4, 2008. The report by Peak Performance was presented to the Department. [19] In a letter to Ms. MacNeil dated September 24, 2008, Laurie Cranton, chair of the Off-highway Vehicle (OHV) Ministerial Advisory Committee, reported the Committee made the following comments concerning the report prepared by Peak Performance: “During the discussion a number of points were made and are summarized as follows: – The process was undermined by one group that refused to attend and this is very disappointing; – Liked the process but it may not be suitable in every case; – The process may be better suited for more extreme situations; – The process was very professional; and – The community needs to be further educated on what a managed trail means.” .... “The results of the consultations lean towards opening a multi-use managed trail which would include OHV use. This would be the Minister’s decision to make. If the Minister decides to reopen this route to motorized users he should do so only by providing a letter of authority to a responsible trail group willing to develop it as a multi-use trail including OHV use. As part of a trail group’s approval process, they should be required to: – Define, with input from the community, rules, regulations and parameters for trail use to address all concerns such as appropriate time of day trail use restrictions, et cetera; – Develop and follow a project plan; – Visit adjacent landowners to discuss the decision made, and what is being done or could be done to address all of their concerns; – Implement a Trail Warden program and request vigorous Department of Natural Resources enforcement; – Provide within a reasonable period of time (two to three years) an opportunity to review with residents the operations of the managed trail which would include an option to close the trail to a particular use if it is not properly functioning; and, – Monitor problems and continue to address issues of all residents. The Committee continues to discuss the provincial community consultation process as it relates to OHV trail development and will be making future recommendations to the Minister.” [20] The Province decided to remove the barriers, and on October 8, 2008 the barriers were removed, thereby opening the abandoned railway corridor in Paradise to motorized vehicles. [21] PAHLS filed a Notice of Application in court seeking certain declaratory relief. In a further amended Notice of Application in court filed March 30, 2011, six questions were placed before the court. The Attorney General of Nova Scotia moved for summary judgment and Wright, J. granted the Motion with regard to questions four and five. During the course of the hearing of the application PAHLS withdrew question six leaving three questions before the court: 1. Did a consultation conducted by the Department of Natural Resources leading up to the grant of a Letter of Authority to the Annapolis County Trails Society constitute a legal process that determined the future usage of that portion of an abandoned rail bed that runs through the village of Paradise? 2. What is the legal status of the consultation conducted by the Department of Natural Resources after the grant of the Letter of Authority referred to above and did such consultation follow the policy guidelines established for rails to trails? 3. Does the province have legal authority to permit certain usages of land in the village of Paradise that prima facie violate the noise by law of the County of Annapolis prohibiting such usages? [22] The Crown Lands Act, R.S.N.S. 1989 c. 114, s.1 provides: Interpretation 3 In this Act, ... (c) “Crown lands” means all or any part of land under the administration and control of the Minister; ... (n) “Minister” means the Minister of Lands and Forests;... Powers of Minister 5 The Minister has supervision, direction and control of ... (b) the administration, utilization, protection and management of Crown lands, including (I) access to and travel on Crown lands, ... Title to land acquired 9 All land acquired pursuant to this Act is vested in the Crown and is deemed to be Crown lands under the administration and control of the Minister, R.S., c. 114, s. 9. ... Offences 38(1) A person who without legal justification or without the permission of the Minister or a person authorized by the Minister, the proof of which rests upon the person asserting justification or permission, (a) enters upon Crown lands where entry is prohibited by notice; (b) engages in an activity which is prohibited on the Crown lands by notice; or ... is guilty of an offence. [23] The railroad corridor situated in Paradise was conveyed to the Province as represented by the Minister of Natural Resources. The Department of Natural Resources is the successor to the Department of Lands and Forests. The railroad corridor in Paradise is Crown lands as defined in the Crown Lands Act, supra. The Minister of Natural Resources has control of the use and management of Crown lands. [24] The Department commonly issues “Letters of Authority” to persons to carry out specified activities on specific Crown lands. Prior to the commencement of this proceeding, the only Letter of Authority issued which included that portion of the abandoned railroad corridor within the village of Paradise was issued November 3, 2008 to the Annapolis Valley Trails Coalition to “carry out construction and safety measures related to the creation of a multi use trail on Crown lands, specifically, the former Dominion Atlantic Railway located in Paradise, Annapolis County, Nova Scotia.” The Letter of Authority expired on December 31, 2009. [25] Here, the Minister determined the use which could be made of the railroad corridor within the village of Paradise, first prohibiting the use of motorized vehicles on the railroad corridor, then by allowing the use of motorized vehicles. The first question before the court is: 1. Did a consultation conducted by the Department of Natural Resources leading up to the grant of a Letter of Authority to the Annapolis County Trails Society constitute a legal process that determined the future usage of that portion of an abandoned rail bed that runs through the village of Paradise? [26] The Department had input from residents of Paradise and others before the decision was made to prohibit use of motorized vehicles on the railroad corridor within the village of Paradise. Prior to that decision being made there was no Letter of Authority which dealt with the railroad corridor within Paradise. The Minister of Natural Resources made the decision concerning the use of Crown land and prohibited by notice use of motorized vehicles on the railroad corridor within Paradise. The action was the Minister controlling the use of Crown land - the right of an owner of real property concerning the use of its real property, a decision an owner has the right to make. [27] The second question before the court is: 2. What is the legal status of the consultation conducted by the Department of Natural Resources after the grant of the Letter of Authority referred to above and did such consultation follow the policy guidelines established for rails to trails? [28] There was no letter of authority issued by the Province concerning the abandoned railroad corridor within Paradise prior to the Province’s decision to allow the use of motorized vehicles on the railroad corridor. The Province continued to be lobbied concerning the use of the railroad corridor. The Province decided to allow the use of motorized vehicles on the railroad corridor. It was a decision of the owner of real property regarding the use of its property. [29] The third question before the court is; 3. Does the province have legal authority to permit certain usages of land in the village of Paradise that prima facie violate the noise by law of the County of Annapolis prohibiting such usages? [30] In addressing when declaratory relief should be granted, Saunders J., as the then was, in Bremner v. Nova Scotia (Attorney General), [1993] N.S.J. No. 284, stated at paragraph 18: “18 Municipal Contracting Limited v. Nova Scotia (Minister of Finance) (1991), 110 N.S.R. (2d) 45 was a case where I granted certiorari and declaratory relief from a decision of the Provincial Tax Commissioner. In reversing my decision I was reminded by Jones, J.A. that that was not an appropriate case for summary relief. While discretionary in nature, there are significant restrictions on its application. Mr. Justice Jones quoted with approval the following passage from the text, The Law of Declaratory Judgments, 2nd ed by Lazar Sarna at p. 22: “While the court has an extremely wide jurisdiction, it will not entertain an action or a motion seeking relief where there is no dispute between the parties, or where the dispute does not reveal any difficulty with respect to the rights vested in one of the parties. Proof of a dispute is in effect proof that judicial intervention is not only helpful but indeed necessary for resolution of the issue. The court is nevertheless justified in hearing a claim even where the cause of action has ceased to exist, or where the disputed right goes beyond the strict legal relationship of the parties, so long as it concerns a real question of substance, and the applicant and respondent demonstrate some necessity for judgment. Unless the judgment will be of some use, the court will not issue an order determining defunct rights under a statute which has been repealed, enter into an investigation and decision concerning stale contracts, or discuss the merits of a spent judgment. Neither will it entertain a prayer for relief on summary motion if the material facts are disputed or where evidence must be weighed in order to determine the matters in issue. The proceeding must allege facts underpinning the claim; to allege a conflict of laws, bereft of facts, is insufficient.” I am not convinced that the questions raised by Judge Bremner clearly demonstrate some necessity for judgment. While I can well understand Judge Bremner’s interest in personal estate planning, that is not reason enough to invoke the Court’s discretionary power to order declaratory relief.” [31] Here there is no factual basis established for the court to deal with the issue posed in the third question. If I did answer the question, it would have no effect. The third question is not one for which the court should exercise its discretion to order declaratory relief. [32] The application is dismissed. [33] If the parties are not able to agree I will hear them on the issue of costs. _____________________ Coughlan, J.