Constitution foundation granted standing to challenge N.S. woods ban in court

A sign advising drivers of Nova Scotia's woods ban is displayed on the approach to the MacKay Bridge in Dartmouth, N.S. (CTV Atlantic / Andrea Jerrett)

The Supreme Court of Nova Scotia has granted the Canadian Constitution Foundation (CCF) the standing to challenge the provincial government’s ban on people entering wooded areas amid dry temperatures and wildfires.

The provincial government implemented the woods ban for the entire province on Aug. 5 under the Forests Act, citing concerns over dry conditions in forests.

“The Province of Nova Scotia is in an unprecedented period of drought, which poses serious risk to our people, natural resources, and industries,” reads a written decision from the Supreme Court. “The risk posed by potential (and actual) wildfires was met by urgent government action.”

Last week the government lifted the ban for all parts of the province except for Annapolis County. The ban will be entirely lifted by Oct. 15 or if conditions improve.

The fine for violating the ban is $25,000.

According to the written court decision by Justice Scott C. Norton, the CCF filed a notice of judicial review on the woods ban on Aug. 15, claiming it exceeded the authority of the Forests Act and failed to consider the “proportional impact” of Canadian Charter rights and values.

The group also filed a notice of motion for public interest standing, which, if granted, would allow them to argue against the ban in court.

Norton wrote that the decision to deny or grant public interest standing is discretionary and is dependent on if the matter raises a justiciable issue, if the party has a genuine interest in the matter and if the proposed suit is reasonable and effective.

The minister of the Department of Natural Resources, representing the province in the case, argued that the CCF’s mandate to defend constitutional rights is “not sufficient to establish a genuine interest in every issue involving rights.”

The minster also argued CCF, which is based in Ontario, has no direct connection to Nova Scotia and lacks the capacity to speak to the “lived experiences” of people impacted by the woods bans.

According to its website, CCF is a non-partisan charity that focuses on defending the constitutional rights and freedoms of Canadians.

“CCF says that this case is squarely about whether government is acting within its legal authority,” the written decision says. “CCF is a national organization with a 23-year record of advancing Charter arguments. There is no comparable organization in Nova Scotia. There is no case authority that geography should be a consideration.

“The fact that CCF is headquartered in Ontario is not in my view a disqualifying factor in this case. Had there been a competing claim for standing from a Nova Scotia organization with similar experience and stronger ties to the province, the respondent’s submissions may have bear more weight. In the circumstances of this case, I do not find that the CCF is a ‘busybody litigant’ wasting scarce judicial resources.”

Justice Norton said he was not convinced the CCF’s application will prejudice any subsequent proceedings and he ultimately granted the public interest standing.

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