Friends of Pioneer Forest say it will challenge the City of Nanaimo and Nanaimo school district in court if officials don’t recognize a provincial cabinet order they say requires the forest to be used as a park or be returned to the province.
The organization says it has found evidence that the 3.2-hectare urban forest was wrongly relieved of its park designation in 1997 when the city sold it to the school board for about $800,000. It says a deputy minister issued the school board a letter then stating the park restriction had been removed, but argue that the letter “had no statutory authority or legal standing.”
The school board then filed the letter with the Land Title Office in Victoria, which “wrongly removed the park restriction from the Pioneer Forest property.”
Friends of Pioneer Park chairman Mike McCammon said the organization wants the city and school board to correct past mistakes.
“Our goal is the long-term protection of Pioneer Forest as a park,” said McCammon. “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.”
In May, while performing its asset management assessment, the school district notified the city that a recent overhaul of the city’s zoning designations wrongly zoned Pioneer Forest with an open parks and spaces designation instead of a neighbourhood designation.
That request prompted the Friends of the Pioneer Forest to form as residents became worried the property, under the neighbourhood designation, could become open to development. Nanaimo city council passed the first two readings, but pulled the issue from a public hearing in June due to confusion surrounding the property.
Jamie Brennan, Nanaimo school board chairman, said the land is designated neighbourhood, is owned by the school board and that the interests of the school board’s students will be put first.
“Our main goal is to realize as much from that property as we can for the school district. But that isn’t to say that we’re not agreeable to that piece of land reverting to parkland under different ownership,” said Brennan. “In the city’s plan they called it a park because, I guess, in their view there were people using it as such. So we asked the city to correct it and that’s when the city blinked, I guess you’d say, because of the opposition from the neighbourhood.”
Brennan added that legal action by Friends of Pioneer Park would be cumbersome for all parties.
It’s up to them. For us it’s a distraction,” he said. “We don’t want this to become a legal battle because the only people who benefit from that are lawyers, not kids, and our first interest is our kids.”
Friends of Pioneer Forest secured environmental lawyer Patrick Canning through a grant provided by the West Coast Environmental Law’s Environmental Dispute Fund. Canning said the evidence he has found says the land, under past agreements, should only be used as park land.
“Order in Council 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,” said Canning. “Otherwise it reverts to the province. The city and school district needed cabinet approval to remove the park restriction but cabinet never gave that approval.”
In 1984 the province sold all of May Bennett Pioneer Park to the city for $1 under the condition the property be used for public recreation.
In 1997 the city sold Pioneer Forest to the school district which considered building an elementary school on the site, but later deemed it unnecessary.
Friends of Pioneer Forest say the currently in-force OIC 1035/1983 requires 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”.
The document is signed by former Premier Bill Bennett, then Minister of Lands, Parks and Housing, and former Lieutenant Governor Henry Pybus Bell-Irving.
The site is mostly forested and is also used as one of the city’s designated off-leash dog parks.
“We don’t own parks and any attempt by any group to confiscate that piece of land would be unwelcome by the school district,” said Brennan. “We own it and we don’t foresee we’ll be needing it for a school site in the future so for us it’s a matter of how can we realize some benefit from this property for our students. For the city it’s probably more political than for us and that’s for them to deal with, but we’re hoping we can work out an agreement with them.”
The school board is in discussions with the city over a number of properties to erase confusion over titles, though Brennan added Pioneer Forest’s ownership and title is clear.
Nanaimo Mayor John Ruttan said the city is talking to the school board to come up with a solution that addresses the concerns of all parties. He said all options are on the table, including a possible swap of land between the city and school board.
“If we have property we can exchange, that’s what we’re exploring. We understand the community’s desire to retain that as a park and the city is working with that view in mind, to keep it as a park,” said Ruttan, adding he felt it was premature for a citizen organization to threaten legal action. “But at the same time it’s important to remember it’s not the city’s property. It was sold legally to the school board and the solution will come from them.”
Brennan said the school board won’t allow the deadlines of outside interests to interfere with the process.
“Any artificial deadline that this group presents are really simply just that based on their own view of things,” he said. “We’re hopeful we’ll have a successful agreement with the city ... that will serve the best interest of both the City of Nanaimo citizens but also the students of our school district.”