What rights do the public have to access private and crown lands? What rights do the public have to use publicly funded roads to access crown lands?
The Federation of Mountain Clubs of BC has had long-standing concerns about the public’s ability to access land for backcountry recreation. In February 2017, Andrew Weaver, leader of the Green Party of BC, introduced a bill in the BC Legislature: Bill M 223 – 2017 - Right to Roam Act. This bill sought to ensure the right of citizens “to access public lands, rivers streams and lakes and to use these spaces to hunt, fish and enjoy outdoor recreation in accordance with the law.”
Although extinguished when the May 2017 election was called, the proposed legislation fit with the long-held concerns of the Federation. Public access to public lands has steadily eroded under agreements endorsed by the previous provincial government according to the Federation’s research. Some government agreements allow private parties to restrict the public from accessing Crown lands. The Federation’s members have also noticed increasing numbers of gates across publicly funded resource access roads. These curtail the public’s rights to provincial Crown lands—including provincial parks. The Federation believes that it would be valuable for everyone to understand the public rights and provincial obligations as they relate to access to, and over, public and private lands.
Therefore, as an apolitical body, the Federation will collaborate with all political parties in BC to address this. As almost 95%—or ~880,000 square kilometers—of the province of BC is designated Crown land. It is a significant area. Establishing the legal right to access Crown lands by accessing and crossing private lands or by traveling on publicly funded resource roads is what is sought.
In several European countries, including Scotland, Sweden, and Norway, access to nature is a constitutionally protected right. The legislation varies from country to country and requires everyone to behave responsibly, but essentially, residents and visitors have the freedom to roam on both public and private lands.
Here in British Columbia, we do not seek “carte blanche” access to all lands. We appreciate that safety, environmental stewardship, and liability are concerns that must be recognized. The rights of First Nations and private property owners must also be acknowledged and respected. However, what is occurring today is a gradual erosion of access and this must be addressed, whether through Right to Roam legislation, appropriate provisions in tenures or policy.
Degradation of Access
A simple example of specific access issues that have arisen and that have motivated the Federation’s work and the need for legal clarity is Whistler Blackcomb (now owned by US company Vail Resorts, Inc.). This corporation has been granted tenure in, and adjacent to, Garibaldi Provincial Park. It is the Federation’s opinion that traditional access to Garibaldi Park has been actively and deliberately restricted through declining cooperation with the public, gating public roads and parking lots, and expecting backcountry users to use the facilities of the resort to attain access. This has been accommodated through tacit acquiescence of previous provincial governments. The Federation’s members believe these acts—as examples—contravene the rights of the public to have access to public lands. To illustrate this the Federation has gathered supporting accounts from our many member clubs across the province.
The Future of Right to Roam in BC
We anticipate that with the refreshing attitude of the new government—and MLA Weaver’s ardent belief in the principles of one’s “Right to Roam”—there is an opportunity to advance the rights of the public to access Crown lands, by writing these rights into law.
The understanding and collaboration of Ministers Heyman and Donaldson and their government are critical. Should we receive a positive response from government we would join with likeminded outdoor recreation, conservation and environmental organizations across the province and plan a provincial strategy to advance this initiative.
We expect to raise awareness, organize and/or campaign around the issue of public access with the intention of assisting government to establish Right to Roam legislation and to ensure fair and reasonable access agreements with private tenure holders and commercial backcountry operators. While we understand the realities of safety, security and liability we firmly believe that the public does have rights here.
The Latest on Right to Roam - News and Updates
Douglas Lake Cattle Company Appeals Access to Lakes
As mentioned below, in December of 2018, the BC Supreme Court sided with the rights of the public to access lakes in the Nicola region of the province—and the long-standing dispute between the Nicola Valley Fish and Game Club and the Douglas Lake Cattle Company concluded with the Club winning the case and costs.
It is no surprise that the Cattle Company and its owner, Stanley Kroenke (purportedly worth $4BN…), have now chosen to seek appeal to this decision. They certainly have the resources and they know that the Fish and Game Club has little—a real-life David and Goliath conflict.
It has been suggested that the FMCBC become an intervenor—a serious matter for the Board to consider. While intervening is fairly straight-forward and safe it would involve, in this case, informally asking the Nicola Valley F&G Club if they would support our intervention. If the Club were to agree, the FMCBC would apply to the court to intervene. The FMCBC would not be allowed to provide evidence or argue new aspects, and only argue different aspects that the main parties might not be considering. Generally, interveners are also protected from costs. So, our only costs would be our own legal fees and disbursements such as the court application fees and printing, etc.
Legal fees, however, depend on the amount of work the FMCBC would want to insert into the intervention. The more critical the legal point to be made the more complicated the arguments. Legal fees could be between $5,000 - $20,000, depending on how important the legal point being made is, so it’s unlikely the FMCBC will be jumping into this fray.
In any event, the FMCBC staff and membership will review the decision, the notice of appeal, response to the appeal and advise our members as the case proceeds.
A Precedent-Setting BC Supreme Court Decision
In early December 2018, a group of BC anglers won a longstanding "David and Goliath" court battle against billionaire American ranch owners, who had been blocking public access to two fishing lakes and a road near Merritt, BC. The BC Supreme Court ruled that the public should be able to access the lakes via the road, and criticized the province for failing to "prohibit what was an illegal obstruction of a public road by a corporate entity, for its own benefit."
This is a huge win in the battle for public access to public land and a major milestone for the Right to Roam initiative.
Backcountry Access Report
In March 2018, we attended a backcountry access meeting hosted by NDP Mid Island-Pacific Rim MLA Scott Fraser. The purpose of the meeting was to find solutions to backcountry access restrictions that have been increasing on Vancouver Island, and MLA Fraser addressed the group to help define the issues and seek support for improving public access across private forest lands.
MLA Fraser released the final backcountry access report in October 2018—the product of the well-attended community meetings in Port Alberni. Some of the ideas are good and dovetail nicely with the Right to Roam initiative. All in all, this document will help to serve as a reminder to government that it has unresolved access issues and Right to Roam legislation could assist in settling them.