North Okanagan rail trail near Enderby in 2021.

Image Credit: SUBMITTED/The Shuswap Trail Alliance

Everyone agrees that creating the Shuswap North Okanagan Rail Trail was a great idea but owners of dozens of properties along the former CP Rail line are being forced to fight for the same access to their properties that they’ve always had.

“It’s going to be a beautiful trail and we all love biking, but there’s a whole other narrative about what’s going on,” Jeanette Love told iNFOnews.ca. “It’s very frustrating. It’s been very stressful because, all we want is the same access we were privileged to have when the railway was built in 1892.”

She and husband Ken Netzel own farmland near Armstrong that had permanent access when the line belonged to CP Rail. That access, they believe, is now at risk.

More than 100 other farms are in the same situation along the rail trail.

Another 23 property owners along Mara Lake fear they will lose access to their docks.

The 50 km former rail line runs from Sicamous to Armstrong.

It was bought from CP Rail by Splatsin First Nation, Regional District of North Okanagan, Columbia Shuswap Regional District and the province in 2017.

Funding is now in place to build most of the trail and some work has begun. Eventually it could connect with the Okanagan Rail Trail and the Trail of the Okanagans to reach all the way to Osoyoos.

READ MORE: 'Dream' of Sicamous to Kelowna Rail Trail quickly becoming a reality

It’s now been more than five years that both the farmers and the dock owners have been stressed out by how the two regional districts have handled their concerns and they're frustrated by the lack of communication during the process.

Both groups say that dozens of emails to the regional districts have gone unanswered.

Initially, the Rail Trail Governance Advisory Committee sent off 20+ page access agreements for farmers to sign. Those were for 10 years but also included a clause saying they could be cancelled with 90 days' notice, Love said.

“Why would anyone give up an entitlement letter, written by CP Rail, for access to their property that’s still valid?” Netzel said. “Why would they sign a contract that the rail trail owners can cancel in 90 days? To me, that’s just absurd.”

A handful did sign but the vast majority didn't.

Most owners are reluctant to speak up, Love said.

“Sometimes putting forward challenging things about such a huge project, people don’t want to get involved,” she said. “There’s people around here who don’t want the publicity or the negative impact.”

The Advisory Committee has dropped its initial agreement offering and has a new permit process on the way.

“We listened to the concerns and we made some pretty substantial changes to that process,” Ian Wilson, general manager of strategic and community services for the Regional District of North Okanagan, told iNFOnews.ca. “I think we’ve addressed all the major concerns that were brought forward.”

The committee recommended that the farmers be guaranteed permanent access and both regional districts agreed.

But the boards still want farmers to apply for a permit that has been simplified to two pages.

Today, June 15, the Columbia Shuswap Regional District will be presented with a report that references the permanent access guarantee along with a bylaw governing the permit process. That bylaw, however, does not contain the word ‘permanent’ in reference to agricultural permits.

“Adjacent property owners should have a registered easement over the rail trail,” Love said in an email to iNFOnews.ca after reviewing those documents. “However the Columbia Shuswap Regional District and Regional District of North Okanagan try to describe it, the reality is that a permit, bylaw, license, etc. can be changed. The only guarantee to access is a registered easement.”

She argues that when the rail line was owned by CP Rail, access was guaranteed to farmers in perpetuity under the Railway Act of 1888 and there is no reason they should give up those rights.

Love also cites a Government of New Brunswick rail trail policy adopted in 2011 after it acquired all the CN and CP rail lines in the province.

It allows people who owned affected land along the rail lines from before 1996 to apply for, and receive, easements.

The issue and legal status of the dock owners is different.

Of the 23 docks, 22 have legal tenure from the province, one of the owners told iNFOnews.ca. He did not want his name published out of fear of retaliation that would deny him a permit for access to his dock.

When the line was owned by CP Rail, he said, there was an agreement that the docks could only be removed for cause.

“Their agreement stated very clearly that, if the dock conflicted with their future development or we contravened any of their provisions, like if we were messy or the docks impeded access to the rail line by other parties, there were solid conditions as to how to proceed,” the owner said. “We would be given notice if there was a default. If we messed up, we would have 30 days to remedy such default. Then, if we couldn’t get along, we got to go to arbitration.”

The agreement also gave the dock owners riparian rights to Mara Lake. That means, in part, that they had unimpeded access to the lake.

The proposal from the Advisory Committee offers none of that.

The original offer to the dock owners was for a five-year permit that could be cancelled with 90 days' notice.

READ MORE: Shuswap residents raise $120K and lawyer-up in rail trail dock dispute

The new offer is a 10-year permit with a two-year cancellation option. There is no just cause provision or reference to riparian rights.

“The temporary permit is being issued with no renewal,” the dock owner said. “So, what happens after 10 years? If, after eight years, I put my property up for sale, what’s my house worth?”

He’s been told by realtors and bankers that, even now, the limitations on the new agreement cuts the value of all the affected properties in half.

What he wants is an agreement that has a just cause clause, a negotiation period and binding arbitration if disputes can’t be resolved.

Under law, he argued, property rights need to be treated the same regardless of who the owner is so the dock owners should not be treated any different than the farmers.

“If we were all given easements this thing’s over,” he said. “They lose nothing. An easement can be so restrictive but it goes with the land and it can be sold with the property. An easement would ensure an owner, that new purchaser, that easement to the lakefront is there forever.”

So, what happens if the regional districts dig in their heels and say this is it?

“We have tools in the tool kit, there’s no question,” the dock owner said. “But, it’s not pretty.”

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