Friends of Pioneer Forest obtained a Order in Council document signed by Premier Bill Bennett in 1983 that requires the Pioneer Forest property to be “limited to the specific purpose of use as a park and recreation, and subject to reversion if not so used.” There is no provision allowing for a transfer or re-zoning of the property.
Friends of Pioneer Forest has sent letters to Nanaimo City Council and the Board of Education of School District 68 (Nanaimo-Ladysmith) calling on them to comply with an Order in Council that requires the Pioneer Forest property in Nanaimo to be used for park and recreation purposes. An Order in Council (OIC) is a type of legislation. It is issued by the Lieutenant Governor of the Province on the advice of the Premier and Cabinet Ministers. It cannot be overridden by anything other than another OIC or an Act of the Legislature.
Officials Ignored Legal Requirements
Documents obtained by Friends of Pioneer Forest show that in 1997 when the City of Nanaimo was trying to sell the Pioneer Forest property to School District 68, provincial officials knew that the provincial cabinet’s approval and a new OIC were required to remove the park restriction. However, officials sought to transfer the property and remove the park restriction without provincial cabinet approval or other legislative authority. In addition, the City of Nanaimo and School District 68 knew that removing the park restriction was a problem. The transaction was delayed for months until the City of Nanaimo and School District 68 finally obtained a letter from an assistant deputy minister claiming to remove the park restriction. Even though that letter had no statutory authority or legal standing, School District 68 filed the letter with the Land Title Office in Victoria, which subsequently wrongly removed the park restriction from the Pioneer Forest property.
Friends of Pioneer Forest’s lawyer, Patrick C. Canning, who has been retained with support of a grant from the West Coast Environmental Law group, has notified the Registrar of Land Titles in Victoria about the improper removal of the park restriction and reversionary clause. Friends has also informed Premier Clark and provincial cabinet that the requirements of OIC 1035 have been ignored and undermined.
“OIC 1035/1983 is all the evidence anyone needs to know with certainty that Pioneer Forest is required to be used as a park or for recreation purposes only, otherwise it reverts to the Province,” said Mr. Canning. “The city and school district needed cabinet approval to remove the park restriction, but cabinet never gave that approval.”
Friends asks City of Nanaimo and School District 68 to Protect Pioneer Forest as Required by Cabinet Order
In light of OIC 1035/1983 and other facts, Friends of Pioneer Forest is now calling on School District 68 and Nanaimo City Council to step up and do the right thing by complying with the cabinet order and work together to protect Pioneer Forest in a bylaw under s. 30 of the Community Charter without cost to city taxpayers. If the Nanaimo City Council and School District 68 refuse, Friends of Pioneer Forest will consider taking legal action to protect the forest as a park.
“Our goal is the long-term protection of Pioneer Forest as a park,” said Mike McCammon, chair of Friends of Pioneer Forest. “We trust our elected city councillors and school trustees will see the wisdom of righting the wrongs of the past and take steps to ensure Pioneer Forest is properly protected for future generations.”
Friends of Pioneer Forest’s Legal Research Committee has been researching the history and transfer of the forest property for several months. Information has been obtained from official sources, interviews, archival records, and freedom of information requests. The 3.36-hectare Pioneer Forest property has been used as a park continuously since 1966 when the Provincial Cabinet first reserved the land as part of a larger parcel for a park or recreation purposes. On June 30, 1983, the Lieutenant Governor in Council (the provincial Cabinet) approved a free Crown Grant of the property to the City of Nanaimo in OIC 1035, with the City of Nanaimo receiving the land on December 10, 1984 “for so long as the land is used for a park for public recreation and enjoyment purposes.”
Who was on Nanaimo’s City Council in 1997?
On November 18, 1996, the City of Nanaimo passed a bylaw without a public hearing authorizing the transfer of the Pioneer Forest property to School District 68 , on condition that the property revert to the province if it was no longer needed for school purposes. However, in August 1997 the bylaw was amended to remove reference to any reversionary clause. Despite being informed that a new OIC was required to remove the park restriction, officials sought to transfer the property free of any restrictions without a new OIC. On July 18, 1997, a request was made for a ministerial order, but when that was not forthcoming a letter was signed on November 4, 1997 by then assistant deputy minister Don A. Fast purporting to remove the restriction. Even though the letter had no legal standing, School District 68 filed it in the Land Title Office in Victoria on December 12, 1997. The Land Title Office then wrongly removed the park restriction and reverter over the Pioneer Forest property.
In the 15 years since it was transferred to the School District 68, the community has continued to use Pioneer Forest as a park and it has remained undeveloped. The property has been designated as Parks and Open Space through successive Official Community Plans and is currently occupied as a city park under a 5-year license from School District 68 that was signed in December 2011. However, in May 2012, both School District 68 and City of Nanaimo tried to remove the Pioneer Forest property from the “Parks and Open Space” designation, a move that would increase the property’s value by enabling an owner to apply to rezone it for higher density development.
After withdrawing the redesignation proposal on June 7, 2012 to investigate an issue on the property’s title, City of Nanaimo staff subsequently informed Council that the redesignation proposal will be submitted for third reading at a future meeting. The School District 68 is currently in the process of identifying and selling surplus properties and has recently advertised two school sites for sale.
For more information visit Save Pioneer Forest.