What is our Right to Roam?
Northern BC Tourism | Dylan Marek photo
The ability to wander in B.C. is increasingly constrained. Here’s what you can do about it.
Bob Day’s favourite place in the forest around Cowichan Lake is under the branches of a shaggy cedar tree. In the fall, he can watch salmon spawning in a small pool of Fairservice Creek and in the summer, tiny salmon fry swim in the towering tree’s shade.
“It doesn’t look like much but it’s a special spot,” he says. So much so, he’s installed a bench, so he can sit down and take it all in.
Day’s daily sojourn with nature may seem like a gentle and innocent act, but he doesn’t take it for granted. The bench sits on private property owned by Mosaic, a timber company. As president of the Cowichan Lake Trail Blazers Society, Day helped negotiate a land access agreement with Mosaic for mountain bikers and hikers to build trails in the Fairservice watershed.
The Trail Blazers example represents a positive outcome for recreational access to the backcountry. The freedom to wander on public land is a right in B.C., but with more interest in the land and an increasingly complex management system, recreation groups don’t always feel that way. Securing sustainable backcountry access is something the recreation sector needs to work harder on, say experts and access advocates.
"Public access to land is increasingly becoming an issue in the province," Deborah Curran, with the Environmental Law Centre at the University of Victoria, told the CBC. She believes that is partially due to an increase in resource development, and the fact that landowners and rights holders are "more broadly" restricting access than they did before.
Federal and provincial laws enshrine the right to travel on Crown land, the property owned by the provincial and federal governments, and even camp for up to 14 days. There are also laws that ensure unfettered travel on most rivers and lakes and up to the high tide line on the ocean. But those rights do not extend to privately owned property, which includes Indian Reserves and most First Nation Treaty lands, where landowners are free to decide who can travel on their property.
The rules are well established and recognized. Where access issues get complex is moving between the two. As an example, the Federation of Mountain Clubs of BC, a group that represents 50 hiking and climbing clubs across the province, points to one of the main access points to Garibaldi Provincial Park, the Singing Pass Trail. The trail cuts through a short section of land tenured to Whistler-Blackcomb resort. In recent years the resort has gated the access road to the trail. The FMCBC says the blockage is a violation of the laws that govern Crown land, while Whistler-Blackcomb argues it is protecting its private property from liability issues.
Similarly, on Vancouver Island, angling groups are routinely shut out of rivers and lakes by private landowners gating their logging roads.
Efforts to force access to public assets across private land were dealt a blow by the courts in 2021. Historically, members of the Nicola Valley Fish and Game Club had fished two lakes inside the Douglas Lake Cattle Company property. When a new owner shut anglers out the club took the ranch to court, but an appeal court judge eventually ruled in favour of the ranch.
FMCBC is also concerned about an increasing number of gates blocking publicly-owned backcountry roads. On Crown land, logging and other resource roads belong to the provincial government, but the province has allowed private companies to gate roads, which denies public access to provincial parks and Crown land, says FMCBC.
While each case includes unique nuances, FMCBC says they are part of a pattern.
“What is occurring today is a gradual erosion of access and this must be addressed,” says the FMCBC in a blog post.
More restrictions are likely as First Nations exert their aboriginal rights and title, says Norman Marcy, a former Treaty Negotiator and First Nation engagement professional who is now the Co-Vice-President and Chair of the First Nations Committee for the BC Marine Trails, a sea kayak access focused non-profit. The increased recognition of Aboriginal rights and title, ongoing treaty negotiations and the commitment to create Indigenous Protected and Conserved Areas will lead to a broader acceptance and recognition of First Nation land as private property.
“There’s a shift from a reliance on Crown title and rights codified in provincial and federal laws, to a recognition that in every First Nation territory there are aboriginal rights and titles that were never extinguished,” Marcy says. “That’s going to be the crux of the learning curve for outdoor recreation groups going forward.”
A relevant example is a land swap that was part of treaty negotiations with the Squamish First Nation. It included a parcel of land that included several popular climbing areas. In announcing the agreement the Nation also said they would close access to the climbing while they considered what to do with the property. Local climbers were upset they weren’t consulted or included in the negotiations. But just like with any private land owner, First Nations have no duty to consult with recreation groups over private property. They alone can decide whether treaty lands will be declared “public” or “private” in negotiations.
But there is also precedent for enshrining public access in treaty negotiations, says Marcy, when the parcels are popular recreation areas. That’s the case for Discovery Island near Victoria. An emerging agreement with the Songhees First Nation will likely include protecting public access to the island.
Moving forward Marcy recommends the recreation sector treat Crown land as having two equal managers – the provincial government and First Nations – and engage with First Nations just like they would the provincial agencies that manage forests, recreation sites or BC Parks.
“The courts have ruled that First Nation rights should come first,” Marcy says. “I think that should create more respect for the aspirations’ of First Nations.”
The BCMT acts that way. For the last five years, they’ve approached First Nations along the B.C. coast to find out where it’s okay for paddlers to go and where it’s not. The BCMT then approaches the provincial agencies when necessary and communicates that information on their online maps and information.
Steering visitors away from sensitive sites and developing alternative resting and camping locations shows respect to the traditional land owners, says Marcy. That’s the necessary base to build sustainable access agreements, he says.
A similar relationship helped Bob Day find his paradise in the shade. When the Cowichan Trail Blazers and Cowichan Valley Economic Development wanted to develop a new trail network, they started not with shovels in the ground, but by reaching out to the land owners. They approached Mosaic and Cowichan Tribes to identify a suitable area near Lake Cowichan. Together they collaborated on a master plan and continue to engage as volunteers build the network.
“We couldn’t invite the world until we had everyone on board,” says Day.
By showing respect for all the landowners, the Trail Blazers show that building trust is the best way to secure and protect access.