The West Coast Environmental Law Research Foundation put out a terrific treatise in December 2020, “
Guide to Coastal and Ocean Protection Law in British Columbia.” The treatise is primarily concerned with the establishment of protected zones, ecological reserves, parks, and the like, but it also discusses some of the issues we’ve touched on here with regard to use of the tidelands (or, in British Columbia parlance, “the foreshore”).
The treatise affirms that,
in general, the tidelands are Crown land. “In BC the foreshore is usually provincial Crown land, regulated under the Land Act…”
Id. at 29.
And, in happy news, the province has chosen to allow transient recreation, including camping, on Crown land.
Id. at 30 (citing British Columbia, Ministry of Forests, Lands and Natural Resource Operations, Land Use Policy: Permission,
File: 11000-00/PERM (8 May, 2014)). The province’s 8 May 2014 policy explicitly says that “Any person may camp on Crown land for up to 14 consecutive calendar days.”
However, there are many important caveats.
First, the tidelands of federal or reserve lands are not provincial Crown land.
Id. at 30. This is where our friends the paddleboarders got into trouble on the West Coast Trail Unit.
Second, there is a small number of “water lots” in BC where the tidelands are privately owned, although it is no longer provincial policy to grant these.
Id., n. 127.
Third, the province can adopt site-specific regulations for the land it controls. For example, in provincial parks or ecological reserves, the province often prohibits camping, or relegates camping to a specific area.
Id. at 176–177. A provincial park manager would be acting well within the scope of her powers to prohibit camping on the tidelands in the park.
Fourth, the province can grant licenses to use the tidelands for activities like building docks or running shellfish operations.
Id. at 30. These licenses have the potential to exclude the public—although not every license need be exclusive. (Folks may remember the Northeast Bay shellfish farm scandal on Texada Island from
three years ago.)
Fifth, local jurisdictions have the power to regulate activities in the tidelands (and the surface of the water!) through zoning.
Id. at 30. “Within a zone, a local government may regulate the use of land, the density of the use of land, the siting, size, and dimensions of uses permitted on the land, and the location of the uses on the land.”
Id. at 247. “On the coast, local government boundaries usually extend several hundred metres seaward of the high water mark … Zoning can also be used to designate land for conservation uses.”
Id. at 248. The treatise gives examples of local by-laws in the tidelands restricting long-term moorage, restricting the construction of private docks, limiting any uses to “trails and educational and interpretive signage and displays,” and limiting any uses to “mooring, floating docks, and boat launching.”
Id. at 249–251.
Finally, there is the lingering issue of Indigenous title. “Indigenous nations have jurisdiction over foreshore lands within their territories.”
Id. 30. In cases where Indigenous title has been delineated by treaty or recognized by court order, it is easy to tell where the Indigenous tidelands are. However, Indigenous title is not
created or
granted by treaty or court order—it exists independently of those instruments, although it may be modified by those instruments. Thus, there are many parts of the coast where Indigenous nations have Indigenous title over the tidelands, but it’s difficult to say with certainty where the boundaries of those lands are or what the scope of Indigenous title entails. (And the boundaries and scope of the title may end up being modified by treaty or court order anyway.) The treatise specifically notes that the Heiltsuk, Haida, and Dzawada’enuxw Nations on the Pacific coast “have filed Aboriginal title claims over their marine territories.” And again, their title exists independent of the filing of the claim. The claim is just to compel the Crown to recognize the boundary and scope of the title. Indigenous title is a real title—it is distinguished from other, more familiar forms of title only by the difficulty of recognizing the boundaries and scope of Indigenous title.
All this is to say, it’s inaccurate to claim, as I hear many kayakers do (including certain guidebook authors), that you can camp anywhere in BC below the mean high-water mark. The reality is much more complicated…and much less friendly to kayakers.
Alex
