Horseback River Cross Credit Ivan Matthews

Unlocking the Nature of Public Access

Horseback River Cross Credit Ivan Matthews
Photo credit: Ivan Matthews, provided by the Outdoor Recreation Council of British Columbia

With the goal of empowering citizen groups to defend access to the wild spaces they care about, the ELC and the Outdoor Recreation Council released Wild Places and Green Spaces: A Citizen’s Guide to Proving Public Access this August.

Three in four Canadians said in a recent poll that time spent outdoors is more important to them now than ever before, and more than 85% of people in the same survey said that access to nature has been important to maintaining their mental health. However, more and more people may find they are locked out of the very places they used to access for relief.

In many cases, the public is being deprived of a perfectly legal right to use the trail, road or public way. And this is a growing problem across the province.
Calvin Sandborn, QC

Across the province, gated roads and trails are closed to hikers and other nature-lovers, dozens of lakes and streams are no longer accessible to kayakers and fishers, and in urban areas, public pathways to waterfront have been usurped by adjacent private landowners.

Wild Places and Green Spaces is designed to assist British Columbians who want to prove a public right to access to outdoor spaces for public recreation and nature enjoyment,” says Calvin Sandborn, QC, Senior Counsel with the Environmental Law Centre. “It is important to abide by the access requirements of Indigenous communities on whose traditional territory outdoor enthusiasts roam. At the same time, under provincial law, access is increasingly curtailed. In many cases, the public is being deprived of a perfectly legal right to use the trail, road or public way. And this is a growing problem across the province.”

Executive director of the Outdoor Recreation Council of BC Louise Pedersen says, “We are very concerned that access to outdoor places for fly fishers, hikers, birdwatchers, kayakers and other recreationists are gradually disappearing in both rural and urban areas as roads, trails and paths are being blocked by gates, fences and no-trespassing signs.”

The Guide provides information about how citizens can determine whether the public has a legal right to access a particular beloved place.

First, the Guide informs citizens how to gather the evidence they need to prove public access – how to document the history and status of the access route. It lays out specific tips on finding government maps, land registry documents, land grants, survey records, public works and other government records, orders-in-council, legal notices, community history accounts, archive documents, and other documents needed to prove public access.

Second, the Guide discusses legal principles you can invoke to prove a public right to travel the route. It provides a basic introduction to some of the laws governing public access and specifically describes circumstances where the law mandates public access. It focuses on some of the most common ways that public access rights can be established, such as the creation of public “highways” and creation of certain types of forestry and industrial roads.

For example, many citizens will be surprised to find that if government money was ever used to maintain a road in the past, it is likely a public route today. Others will be surprised to learn that multitudinous unsigned public routes to waterfront exist in their subdivisions. Still others will learn that many public accesses found in original Crown grants and “highway” designations are being ignored – as are routes that were informally “dedicated” to public use by historic landowners but are illegally closed by current property owners. 

“We are hugely grateful to the team of legal specialists and students at UVIC’s Environmental Law Centre for their support in creating a practical guide for recreation groups to help determine whether there is a public right to access the trail, road or public way,” says Pedersen.

Workshops on the Guide will be presented to recreation groups and lawyers throughout the fall.