Moncton High School - Legality of Move

Legality of Move

Several factors leave the move on shifty legal grounds. First, the province's Education Act does not allow the Minister to move a school. Rather, the Act only provides for the closure of existing schools and the establishment of a new schools, both of which being two distinct DEC decisions, which the Minister may or may not approve. For the closure, Department of Education Policy requires the DEC to hold public consultations on a school's sustainability. The DEC must take into account the impact of a school closure on the local community, economic development, transportation, finances, among other factors. Such consultations were conducted for the O'Shaughnessy Report, an 8 month consultation process of all concerned stakeholders. Following the Report, the DEC resolved in November 2010 on the maintenance of MHS in its current location. However, the Minister of Education did not acknowledge the DEC's decision and declared in February 2011 that a new school would be built in a different location.

In addition to lack of jurisdiction to close and re-establish schools, several factors suggest that the Province cannot claim blanket immunity over city by-laws such as the serviceable boundary line. Contrary to popular sentiment, the Province does not have absolute jurisdiction over school location. The DEC is responsible for determining a school's "general location" within the school district while the Minister can only determine a "site" within that designation. In order to enable the choosing of the Royal Oaks site, the DEC would have had to designate the area beyond the serviceable boundary line. However, no exemption was requested by the DEC, nor is it entitled to override the City's bylaws. As a result, only the site selected by the Minister within the “general location” designated by the DEC, would be immune.

Last, the City of Moncton's Development Agreement with the Province pertaining the relocation could be vulnerable on the same grounds. According to this agreement, the City will receive provincial funding to extend roads, sewage and water beyond its own serviceable boundary line, even though this would be in violation of its own policies. On June 25, 2012, City management claimed that the development agreement it had been negotiating with the Province ever since the announcement of the new site was legal because the Province had immunity over the City's zoning by-laws. As a result, construction undertaken by the City would be covered the province's immunity. However, the development project did not require the City's participation and since the 1970s, municipalities such as Moncton do not have any immunity over their own by-laws.

On October 10, 2012, the New Brunswick Court of Appeal ruled that concerned citizens had a 90 day time limit to contest the Minister's decision to move the school. The deadline would have had to be May 15, 2011, or October 5, 2011, depending on the timeframe used. The Court did not rule on the merits of the application. A subsequent application under rules of public interest standing is being contemplated pending the Court's written decision. All these factors raise the question as to why, it spite of broad public support of the maintenance of MHS in its current location, authorities favoured a move that will be costly both economically and environmentally for many generations to come.