The following letter from Andrew Gage, Acting Executive Director at West Coast Environmental Law was sent to MNRO in Williams Lake on April 12th, 2011.
Ministry of Forests, Lands and Natural Resource Operations
Attn. Ken Vanderburgh, Director, Resource Authorizations
Re: Bridge Lake Crown Reserve Issues
I write at the request of Ms. Ann Blades regarding the proposal to swap portions of a Crown recreational Reserve located adjacent to Bridge Lake to a developer in return for an Island known as Rainbow or Heritage Island, located in the Lake. Although we have not been retained by her, we have agreed to write this letter setting out our view of the legality of the proposed land swap.
Ms. Blade believes that the current zoning on the Island, which does not allow for the type of intensive development which was proposed, is unlikely to be changed due to widespread public opposition. By contrast, the Crown land which is to be transferred to the developer in return for the Island will likely be rezoned and developed. If this background is correct, we agree with Ms. Blades’ position that the transfer will result in a significant financial gain for the developer, with only limited public benefit.
However, without expressing a view about the accuracy of Ms. Blades’ understanding of the facts and the political situation, we have agreed to provide some comments on the legal significance of the Crown Reserve designation on the lands proposed to be swapped. In our view this designation has created public rights in respect of the Reserve Lands which cannot and should not be easily set aside. To the extent that the Crown has any legal authority to extinguish these rights and sell the Reserve Lands, we believe it would be held to a high standard of public consultation and engagement.
The Crown Reserve Lands
As I understand it a substantial portion of the 18 hectares of lands which may be swapped were designated by Order in Council 1422 of 1945 (as part of a parcel that included 141.5 acres of land adjacent to Bridge Lake) as being “reserved and set apart for the recreation and enjoyment of the public.” This designation was made under the Land Act.
I am advised that this reserve is apparently still in place, and that the property in question has in fact been used recreationally by the public for many years.
If one reads the Land Act by itself, the legal effect of a reserve appears simply to be to reserve lands from disposition under the Land Act. The Act does not explicitly address what the impacts of reserved lands may be in law, beyond this restriction on disposition. It is perhaps understandable that your office may have assumed that this is merely an administrative designation which can be rescinded by the Lieutenant-Governor in Council at any time. Indeed, section 15(5) of the Land Act expressly allows the Lieutenant Governor in Council to amend or cancel reserves (a point we will return to in a moment).
However, at common law where an owner designates land for a public purpose, and the public uses that land for that purpose, a public right is created in respect of the land. This principle, known as “the doctrine of dedication and acceptance” (the “Doctrine”), is best established in regard to the creation of public highways. Nonetheless, the Supreme Court of Canada has ruled that a wider range of public rights may be created through this mechanism,1) and more recently the Ontario Court of Appeal2) has explicitly held that the Doctrine can result in the creation of public rights to recreation over lands set aside for public recreation.
The Doctrine applies equally to the Crown as to private land owners.3)
I have discussed the test for the Doctrine in relation to public recreation at some length in my paper, Highways, Parks and the Public Trust Doctrine,4) but in brief lands will be designated where:
There is an extensive body of case-law about when the courts will imply an intention to dedicate land. In this case it is quite arguable that the Order in Council explicitly dedicates the property for the purpose of public recreation.
It has been held that the filing of a subdivision plan under the Land Title Act has the legal effect of dedicating land as a road. I have suggested that the filing of plans and maps by the government under other legislation should have no less effect:
…[I]n Maple Ridge the BC Court of Appeal suggested that the filing of a subdivision plan showing the location of the road under the provincial Land Title Act amounted to a dedication of that land, but that public use of the land would be required to demonstrate acceptance of the dedication. It seems unlikely that government plans, whether indicated through the statute itself or through plans filed under a statute, would not have an equivalent effect.6)
The public has also apparently used the Crown Reserve for public recreation, thereby signifying its acceptance of the dedication. In my view the public likely has a right to the recreational use of the Crown Reserve.
What is the impact of this right on the ability of the Crown to dispose of these lands? And if the Crown can dispose of the land, will the rights act as a constraint on the ability of the new owner to develop these lands?
Interpreting the Land Act
It is a principle of law that, once public rights have been created, the government does not have the power to extinguish or interfere with such rights without a clear legislative power to do so.
… There is no question but that the Legislature … can by statute modify or abolish that [public] right; but, if it is to be modified and the rights of the public curtailed or affected, the will of the Legislature must be unequivocally expressed.7)
The Land Act itself does not give any explicit powers related to public rights of recreation. Rather, it is focused on the creation, amendment and cancellation of reserves, which can be used to set aside lands for a range of uses – both governmental and public.
Section 15 of the Land Act states in part:
(2) The Lieutenant Governor in Council may, by order, reserve Crown land from disposition under this Act for any purpose that the Lieutenant Governor in Council considers advisable in the public interest, including for the use of a government body. …
(4) An order under subsection (2) may be subject to any terms and conditions the Lieutenant Governor in Council considers necessary or advisable.
(5) The Lieutenant Governor in Council may amend or cancel all or part of a reserve established under this or a former Act.
While the Land Act does explicitly provide for the cancellation of a reserve (under s. 15(5)), it does not address a situation where public recreation rights have been created in a reserve. In determining how a court would interpret such a situation, it may be useful to refer to Maple Ridge v. New West Minister Registrar of Land Titles. The case concerned the correct interpretation of the then section 130 of the Land Title Act, which gave the Land Registrar explicit powers to cancel road allowances under the Act. The case concerned the ability of the Registrar to cancel one such road allowance which had been used by the public as a horse trail.
It seems to me that the filing of the 1952 plan on which the road allowance is shown must be taken to be an act of "dedication", binding on subsequent owners for so long as the plan remains in force and the road allowance continues to be shown on it: see Land Title Act, s. 107(1)(c). It follows that so soon as there is a public use sufficient to constitute "acceptance", a highway exists there at common law. While removal of the allowance in the course of a plan cancellation under Pt. 8 of the Land Title Act would, of course, serve to revoke an unaccepted dedication, it cannot have been intended that a highway already in existence there by reason of public acceptance of the dedication should by this process be closed.8)
In other words, a general power to cancel and revoke a dedication of land for the public purpose of a highway, should not be read as a power to extinguish a public highway (in that case a horse trail).
Applying that case to section 15(5) of the Land Act, there are many reserves that the Crown may make which would not give rise to public rights. This would, for example, include reservation for the purposes of a government agency. Similarly, the Lieutenant Governor in Council might reserve land for recreational use but explicitly indicate in the conditions of that reservation (under s. 15(4)) that the use for public recreation was temporary and would not amount to a dedication of the land for that public purpose. Finally, lands that were reserved for a public purpose, but for which the public did not “accept” the purpose would not create a public right.
Section 15(5), then, might be held to apply to reserves that were not tied to public rights, but, following the reasoning in Maple Ridge, not to reserves in which public rights were created.
In the alternative, it might be that section 15(5) does allow for the cancellation of the reserve, but that doing so does not revoke the public’s rights over that land. In addition to affecting how the Land Act should be interpreted, the common law has a lot to say about the obligations of governments which hold lands encumbered with public rights. Indeed, the courts have sometimes characterized the government as holding such lands subject to a fiduciary duty to the public. Thus at common law, government holding land that has been dedicated for a public purpose cannot sell those lands9) or even to rededicate such lands to another public purpose.10)
There is nothing in the Land Act indicating an intention to allow Cabinet or the Crown to extinguish the public’s rights or to dispose of the land on which the rights exist. In our submission no such power exists absent clear legislative authority.
Crown’s duty to consult
Even if there were an explicit power to extinguish the public rights and dispose of the land, we would submit that the courts would require such a power to be exercised in a procedurally fair manner and/or in a manner consistent with the Crown’s fiduciary obligations to the public in relation to the Crown Reserve.
We note that in his letter to Ms. Blades of January 6, 2009, Mr. Ken Vanderburgh committed to an:
… open, transparent process, which considers all relevant information, leading to a decision that is in the best interests of the province.
The promised transparency and openness is a good first step towards realizing the Crown’s duty to consult the public. Unfortunately, Ms. Blades feels that there has been little public consultation forthcoming since that letter was written.
Ms. Blades has recently provided us with a copy of Mr. Vanderburgh’s email to her dated March 22, 2011 answering a number of her questions. While it is clear that Mr. Vanderburgh took some time in preparing this response, the email also makes it clear that:
We believe that if the disposition of these lands is authorized in law at all (which, as discussed above, we doubt), the Crown must meet the requirements of procedural fairness and of a trustee in making a decision likely to impact the public’s right of recreation. While some steps have been taken, we have questions about whether they satisfy that test.
It appears that your office may not have appreciated either the existence of the Crown Reserve, or its legal significance, when you first considered the idea of a land swap. Without expressing an opinion about the value of a swap, we would like to observe land in a reserve that was set aside for recreational purposes may not be the best choice of lands for this swap. This trade raises complicated legal questions that the Crown may not want to see put before the courts. These questions include issues related to both the legality of the swap, and to the public consultation which needs to occur prior to such a swap.
We hope that you will re-examine the proposal accordingly.
WEST COAST ENVIRONMENTAL LAW
cc. Ann Blades