University of Victoria publishes guide to help residents fight for public land access

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For decades, the residents on B.C.’s quaint Lasqueti Island have relied on a key boat launch on the east side of the island. The ramp is in an area protected from inclement weather, could be used during all levels of tide, and is vital for people getting to properties that can only be accessed by water, or to the nearby provincial park.

The caveat was the access road went through private property. The previous owners were fine with the public using the ramp, but when new owners took over the land in 2014, the situation turned sour. The new owners started blocking the road with large excavators, boulders, and log piles to prevent people from using the boat launch, said Andrew Fall, the director of the small island’s regional government, which is located in the northern part of the Strait of Georgia. They also placed signs on the road calling it private property.

“People were very stressed, very uncomfortable with signs telling them they can’t go down there, and they’ve had negative interactions with the landowners,” Mr. Fall said.

Mr. Fall is legally challenging the property owners alongside the Lasqueti Island Ratepayers Association (LIRA) to get the province to recognize the road as public property, since government maintenance and cataloguing of the road has dated back to the early 1900s.

In court documents from 2018, Tucker Bay Holdings Ltd., the company that owns the property in question, responded to LIRA’s civil claim by denying its arguments and imploring the complainants to provide strict proof around their claims.

It’s one of many examples across B.C. of residents trying to protect their access to water and green spaces, which in some cases have been mandated as public land by the provincial government. In some instances, residents have been able to come to an understanding with landowners around access issues before going to court.

But if that isn’t possible, the University of Victoria’s Environmental Law Centre released a guide this week meant to help community members organize, research provincial documents and prove legal points in their battle to retain public access to green and blue spaces.

“This is a tool for citizens to discover the undiscovered existing legal accesses that they’re being denied,” said Calvin Sandborn, legal director at UVic’s Environmental Law Centre, who said the guide is designed for the general public to use, and includes footnotes that can help lawyers build a case.

“We’re encouraging citizens that if they find information that leads them to believe there’s a public trail or road or access, that they gather the info and come to us or other lawyers and see if they can prove public access.”

These kinds of land claims are not always successful, however, and landowners say they sometimes feel demonized amid what can be a convoluted process.

Darren Cichy, a spokesperson for the holding company at the centre of the boat launch dispute in Lasqueti Island, said the property has been vandalized during the years-long disagreement in the community, and that people have left boulders blocking the doorways to one of his vehicles and harassed his family.

Mr. Cichy maintains there is evidence of the government corresponding with the property’s previous owner and concluding that the road was indeed private property.

“After over a year of investigation into the matter the Ministry of Transportation came to the conclusion that they had no interest in a road extending past the property line and wrote letters to the community explaining such,” Mr. Cichy wrote in an e-mail.

However Mr. Fall said his organization has met with multiple transportation ministers who agreed with LIRA’s position, but decided it was too complicated to change the status quo.

One high-profile attempt to secure access to public lakes that were reached by crossing private property failed in court in 2021, when the B.C. Court of Appeal overturned a lower court’s ruling and gave the Douglas Lake Cattle Company the right to block access to Crown-owned lakes within the ranch’s property near Merritt, B.C.

The B.C. Court of Appeal pointed out that B.C. does not have public-access legislation unlike other jurisdictions, and said that while the lower court’s decision may have won public support, “it has no support in our law.”

Nevertheless, Mr. Fall believes that the University of Victoria’s guide will help streamline the process of building a legal case when there is a land dispute.

The arguments around Lasqueti Island’s boat launch have stretched on since 2014, and Mr. Fall said having access to the University of Victoria’s guide would have shaved roughly two years off their efforts. Their own work involved intensive research around the province’s maintenance and mapping of the road, as well as meetings with provincial cabinet ministers in current and previous governments.

The guide says the foundation of any access battle is developing a core group of people that can commit time to the cause. It instructs activists to keep detailed research journals as they consult area residents, and it guides people through researching B.C. websites to find information that could prove a given road is public, or to access land title records.

In the case of Lasqueti Island, Mr. Fall said the boat launch was not only important for access to nature, but also for the island’s infrastructure, since the island’s local internet service provider relied on it to access a site on a nearby island. The island’s two other boat launches are situated farther away and are much rockier, meaning they cannot be used in all weather conditions.

Residents have fought to protect their access to the waterfront in larger communities too. In Saanich, B.C., John Roe, the founder of the Veins of Life Watershed Society, has worked for decades to protect “pocket parks,” which are pieces of waterfront land near an inlet in the city that are set aside for public access to water. These green spaces are usually accessed from dead-end roads near the water.

Mr. Roe said homeowners directly beside these public lands will sometimes block access by dumping piles of garbage to make them undesirable to people trying to reach the water. Others will build fences that block entrance to these lands, even though Mr. Roe said owners know the property isn’t theirs.

“A lot of people don’t realize their rights to access – this belongs to you and me,” Mr. Roe said.

“That’s what I find disappointing, so many people should get access to water and our streams and lakes, and along come people with money, and our councils … they tend to ignore it.”

Mr. Roe said the decades-long battle in Saanich is one example of a victory. Many of these green spaces along the Portage Inlet are now accessible to people who wouldn’t otherwise be able to easily experience B.C.’s water, such as people who live in nearby apartment buildings.

However, he said the issue is something that requires constant attention, because all it takes is a new homeowner to try to subversively fence off a piece of public land that isn’t heavily monitored.

With UVic’s legal guide, Mr. Fall in Lasqueti Island and others are hoping that will make it a little easier for the average B.C. resident to compel the government to act when a new landowner threatens decades of access to public areas.

“These are public assets, it was the government’s job to protect it for the public good and they failed,” Mr. Fall said.

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