The right to roam? Not in B.C. you don't | iNFOnews | Thompson-Okanagan's News Source

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The right to roam? Not in B.C. you don't

File photo.

For a province known for its stunning vistas and awe-inspiring scenery, British Columbia gets a failing grade when it comes to allowing its citizens to access it.

A recent B.C. Court of Appeal decision barring the Nicola Valley Fish and Game Club from crossing private land to fish in publicly-owned lakes has grabbed national headlines, but according to many, the issue is nothing new and is widespread across the province.

"There continues to be dozens of lakes that are closed to people that used to be open," University of Victoria Environmental Law Centre director Calvin Sandborn told "This is a long-standing problem."

Outdoor Recreation Council of B.C. executive director Louise Pedersen reiterated the law professor's comments.

"We get lots of reports every week," Pedersen said. "One of our member organizations or another outdoor recreation group or just a concerned individual letting us know that ... they've (been) excluded from accessing areas that they've been able to use before."

It's difficult to know how many publicly-owned pieces of land are not accessible because they are surrounded by private land, as most cases don't end in long-drawn-out public court battles like the Nicola Valley Fish and Game Club versus the Douglas Lake Cattle Company.

The 2016 paper, Enhancing Public Access to Privately Owned Wild Lands, co-authored by Sandborn, highlights roughly six-high profile cases. The paper says these are the "tip of the iceberg."

Sandborn points to the Freshwater Fisheries Society of B.C. which stocks lakes with fish for recreational use. The group no longer stock about 30 lakes, mainly on Vancouver Island, as the lakes are on private forest lands and public access has been restricted.

"They've got publicly owned fish in them but the public can't get to them, in essence, they've been privatized," Sandborn said.

The issue of the public being cut off from public land by private landowners falls down to legislation and Sandborn says there's no good reason the laws shouldn't be changed giving people the freedom to access wilderness.

And it has been discussed previously.

In 1962, a B.C. Special Committee on Public Access to Private Roads considered this issue of "right to roam" legislation although shelved the plan when forest companies granted recreational access to their Crown and privately-held properties.

Sandborn says this access has been eroded over the years and the legislation needs to be changed.

After the 2019 David and Goliath victory for the Nicola Valley Fish and Game Club against the billionaire-owned Douglas Lake Cattle Company, Justice Joel Groves even pressed the government to amend the law.

The Justice noted that in 18 years of being a judge he'd never felt the need to comment to the government that change needed to be made.

"The remedy I am urging on government is this. First off, look at the Trespass Act. Is that what you really intend in today's world?" the justice said in a five-page epilogue after the case.

However, the Justice's words fell on deaf ears. The Nicola Valley Fish and Game Club had its victory overturned by the B.C. Court of Appeal and the Trespass Act remain unchanged.

While the "right to roam" might sound concerning to some homeowners who fear hordes of people suddenly having the right to wander around their yard, the reality is far different.

And some may be surprised to hear that current laws around trespassing are far from ironclad. Largely trespassing isn't a criminal code offence, with the exception of doing it at night.

The Canadian Criminal Code states "Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence."

But wander through private property during the day and it gets more complicated.

"What would actually happen and what technically could happen, are two different things," Vernon criminal defence lawyer Clare Mastop said.

Daytime offences would be dealt with under the B.C. Trespass Act and Mastop said it's very rare for a person to be charged under the Act to end up in a criminal court.

"If they have clear motive and they have been previously warned and preconditions... are in place, and it was intentional that the person knew that they weren't supposed to go there and went there anyway, then yes you could be looking at a criminal act," Mastop said. "But there are a lot of hurdles to cross first before you get to that."

So if the Criminal Code allows for people to be prosecuted for criminal behaviour, why can't the B.C. Trespass Act be amended to allow the public access to privately owned wilderness?

The question is often thought to be one of liability for the landowner.

However, Sandborn's paper states that "this once-significant concern" has been substantially reduced, "if not almost eliminated" by B.C. legislation passed in 1998.

"If a (landowner) has fulfilled their basic duty to not create a danger with intent to harm and to not act with reckless disregard to safety and property, they generally have a defence against liability," Sandborn's research found.

And the right to roam legislation does exist in plenty of other countries.

In England and Wales, private land classified as "mountain, moor, heath or down," which is approximately four million acres, is accessible to the public for "hiking and picnicking."

In Scotland, the law goes even further, giving everyone the right to cross land for purposes of recreation, education and some commercial activities.

While the initial thought may be that the laws are in place because they date back to the Magna Carta – which does give commoners access to land to gather wood and honey – both pieces of the new right to roam legislation were adopted within the last 20 years.

Similar laws exist in various Scandinavian countries as well as New Zealand.

The laws don't allow strangers to picnic in other people's yards and have provisions to protect landowners' privacy and only give individuals access right if they behave responsibly.

And British Columbians don't need to look as far as Europe for an example of how things can be done.

The U.S. state of Maine has similar laws as do parts of Washington State.

However, even closer to home, those living in Nova Scotia have fishing access laws giving them the right to cross private land to lawfully fish in the province's rivers and streams.

If B.C. had the same laws as Nova Scotia, the Nicola Valley Fish and Game Club wouldn't have had to have spent the better part of a decade battling a U.S. billionaire tycoon for their right to fish in publicly-owned lakes.

Sandborn's paper called for the B.C. government to use the Nova Scotia legislation as a potential model to help B.C. fishers access fishing spots currently out of bounds.

Five years after Sandborn's paper was published, the law remains unchanged.

In the meantime, The Nicola Valley Fish and Game Club have said it hopes to take its case to the Supreme Court of Canada.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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