Save Pioneer Forest Considers Legal Action

Claim City and School District 

Ignored Legal Requirements

Friends of Pioneer Forest has sent letters to Nanaimo City Council and the Board of Education of School District No. 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.

Currently in-force OIC 1035/1983 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.” It is signed by former Premier Bill Bennett, then Minister of Lands, Parks and Housing Anthony J. Brummet, and former Lieutenant Governor Henry Pybus Bell-Irving. A copy of the Order is available in PDF.

Officials Ignored Legal Requirements


Documents obtained by Friends of Pioneer Forest show that in 1997 when the City was trying to sell the Pioneer Forest property to the School District, provincial officials knew that 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 Cabinet approval or other legislative authority.

In addition, the City and School District knew that removing the park restriction was a problem. The transaction was delayed for months until the city and school district 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, the School District 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 the Premier 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 and SD68 to Protect Forest as Required by Cabinet Order

In light of OIC 1035/1983 and other facts, Friends of Pioneer Forest is now calling on the school board and Nanaimo City Council to step up and do the right thing by complying with the Cabinet order and working together to protect Pioneer Forest in a bylaw under s. 30 of the Community Charter without cost to city taxpayers. If the City Council and school board 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.”

Chronology of Events

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 receiving the land on December 10, 1984 “for so long as the land is used for a park for public recreation and enjoyment purposes.”

On November 18, 1996, the City passed a bylaw without a public hearing authorizing the transfer of the Pioneer Forest property to SD68, 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, SD68 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, 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 the School District that was signed in December 2011.

However, in May 2012 the School District and City 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 staff subsequently informed Council that the redesignation proposal will be submitted for third reading at a future meeting. The school board is currently in the process of identifying and selling surplus properties and has recently advertised two school sites for sale.