Must...resist...arrrggh, resistance is futile!
I have too many opinions!
From the article Gary linked above:
Federal prosecutor Ian McFadgen told the court that park wardens at Pacific Rim National Park learned that a group of men were on the West Coast Trail without the required permits. Permits weren’t being issued at the time because of COVID, he said.
...
“They said they hadn’t appreciated that the park was closed. They said because they were on the water, in their view, they weren’t actually in the national park,” said McFagden. “That’s an incorrect understanding. The national park goes out in the nearby water portion of the park.”
...
“The biggest mistake they made was thinking that because they were camping on a beach below the high tide level, that was legal. However, that general rule does not apply to a park reserve,” [one of the convicted men's defense attorneys] said.
Prosecutor McFagden and the defense attorney are correct. Tidelands access is an extremely complicated issue in every jurisdiction on both sides of the border. Washington State is well-known for its complicated and generally unfriendly rules, but many people erroneously believe the rules in Canada are simpler and friendlier to kayakers. That's not necessarily the case.
Part of the problem is that there's a ton of bad information out there about public access to tidelands in Canada. Even the usually reliable John Kimantas gets it wrong in his otherwise excellent
BC Coast Explorer vol. 2. On pages 12 and 13 of the guidebook, he provides lengthy but largely erroneous legal advice regarding camping on tidelands in Canada. For example, Kimantas implies that camping on tidelands "on a public park's waterfront" is lawful. As the guys in Gary's article above have now discovered, Kimantas is not necessarily correct on this point. Kimantas also implies that camping on tidelands "on a First Nations reserve" is lawful. Again, not necessarily the case. In a passage that he seems to believe operates as a legal disclaimer, Kimantas explicitly but erroneously says that the "highest high tide line" is the boundary between public and private land, and therefore, "trespassing is not a factor." Again, that is not necessarily a complete or accurate statement of the law of water boundaries in Canada. Trespassing was very much "a factor" for the guys in Gary's article!
Parks Canada's
website for the West Coast Trail couldn't be more clear. "Reservations are mandatory ... Motorized and non-motorized vessels, including kayaks, are not permitted to land anywhere within the West Coast Trail Unit." The guys from Gary's article had no reservation (first because reservations aren't given to kayakers, and second because this was COVID times), and they also landed non-motorized vessels within the park. They have no defense—not even a "necessity" defense grounded in notions of safety, because the kayakers/paddleboarders did not have "no alternative but to break the law." Even if they had been in imminent danger they could have, for example, called the coast guard for a rescue rather than commit the trespass.
Judge Ron Webb accepted a joint submission to fine all the men except Emmett $1,750 to be paid within a year. Emmett, who had a prior allegation of being in Nahanni National Park without a permit, has been given three years to pay $3,500.
Ah-ha! Well, I think I figured out how these fellows ended up in this mess!
Editorializing now: I don't believe the kayak closure in the West Coast Unit actually achieves any anti-coronavirus protection, especially when contrasted against the fact that hikers are allowed in the West Coast Unit. I suspect Parks Canada has an ulterior motive in excluding kayakers. I've read unsourced, unsupported speculation elsewhere that Parks Canada sometimes imposes closures within the West Coast Unit under false pretenses. For example, a two-kilometer stretch of beach east of Clo-oose is closed to camping, supposedly "due to an abundance of wildlife activity in this area." But I've heard the true purpose of the camping prohibition is to protect First Nations cultural sites that aren't already protected within the boundaries of Claoose IR 4 and Cheewat IR 4A.
I don't begrudge Parks Canada its right to regulate the park as it sees fit. (Well, maybe I begrudge it a little bit...) But what does get my goat is the dishonesty. If you want to ban kayakers because you think we're too annoying to paddle in your precious park, just come out and say it. Bring forth your evidence, and give us an opportunity to rebut. Don't hide behind wildlife activity and the coronavirus.
Further, even less productive editorializing...some might even say ranting:
[Judge] Webb made an order prohibiting the men from publishing anything about their trip.
A gag order? Even for unremunerated publication? That grates against my First Amendment sensibilities, but I guess that's a lawful order under Canadian law. I question whether it's wise social policy in this instance.
A second order requires them to publish an apology article, approved by Parks Canada, in Mountain Life Magazine in the next year. Parks Canada will also be able to publish the apology article up to three times in the next year.
[Spits coffee across keyboard.] Compelled speech?! The
last people I would want serving as the editors of my mandatory apology are the staffers of a government agency! You can triple my fine, your honor, but please spare me this apology stuff!
Also, if I can get in one last snide little dig, aren't the judge's two orders contradictory?
OK, OK, I'll stop!
Alex
