[sust-mar] fight for Sperrys Beach on yet again ...

Tom Daly tom_d at chebucto.ns.ca
Sun Feb 26 19:38:31 EST 2017

Diana Whalen
NS Minister of Justice and Attorney General

Dear Minister Whelan;

2017 will mark the 150th anniversary of Confederation in Canada. It  
will also mark the 150th anniversary of the earliest  
thus-far-documented appeal from the citizens of Petite Riviere  
(Lunenburg County) to the Provincial Government for help.

It was in 1867 that our forefathers appealed to the Legislature for  
the construction of a coastal road from Petite Riviere to our  
neighbouring community of Broad Cove. While one section has since been  
de-listed as a public highway, the full length remains today as public  
land and a tribute to our heritage and history.

In the early 1990's, public access to one section of that public road  
was barred with four-strand barbed wire cattle fencing and a padlocked  
gate by an abutting landowner named Himmelman. The community appealed  
to our newly-elected MLA (and newly-appointed Minister of the  
Department of Natural Resources) for a meeting to raise our concerns.   
He sent the local DNR office manager in his place: who announced that  
the Department had successfully negotiated a win-win-win solution: the  
government would trade the public road to Himmelman in exchange for  
_his_ beach (known locally as Sperry's Beach). As successive  
generations of Himmelman had never once asserted title to the beach  
since the family acquired the abutting property in 1949, the concept  
of this 'trade' was immediately and forcefully rejected.

Amidst ongoing and escalating controversy, DNR staff continued to  
promote and defend Himmelman's claim to title until 2008, when we  
applied to the Nova Scotia Supreme Court for an 'in chambers' hearing  
to adjudicate the competing positions. Himmelman's lawyer argued that  
the particulars of the situation were too complex to be decided 'in  
chambers' and requested a full Supreme Court trial.  The Court granted  
their request.

We waited for five years- Himmelman never pursued their granted  
opportunity.  Eventually time-limitations came into effect, and both  
sides were contacted by The Supreme Court with a deadline to proceed.  
On the last day of this grace period, Himmelman withdrew. Himmelman  
had tacitly refused to either support their claim to title or to  
refute ours: in a Supreme Court trial which _they_ had successfully  
requested. Having been advised the the principles of "Res Judicata"  
were now in effect (in lay-person's terms: one cannot claim to be true  
that which one's previous actions and decisions in Court have already  
demonstrated to be false) we did so as well.

We never heard from either Himmelman or DNR staff again: until last  
week when community members were informed by a DNR survey team setting  
survey markers at Sperry's Beach that a "land swap" had been completed  
between the Himmelman family and DNR.

I am writing to request your immediate intervention in this  
transaction, to bring it immediately to full halt pending full  
disclosure of the circumstances leading to and particulars of this  
"land swap": including relevant enabling legislation which authorizes  
DNR staff to over-ride the outcomes of Supreme Court processes.

I hope to hear from you at your earliest convenience.


Tom Daly

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