Pacific Rim Problem-No stopping in Pacific Rim Park Reserve

mick_allen

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Well, the legal issue is that they were disobeying a law. So there are consequences.
However, we also have known almost from the beginning that covid is not spread outdoors, in UV, in sunshine, in Pacific Rim sized windy volumes of diluting air in desolate environments.

I'll just tentatively and timidly venture that somewhere between the assumed danger and the actual danger is where our societies have found themselves today.
 

alexsidles

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I feel a rant coming on…must…resist…
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
 
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cougarmeat

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There are ways to put a message inside an apology ... I mean inside another message. It would take a little cleverness to slip it through.
 
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SalishSeaNior

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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.
I just saw this discussion and thought it might be helpful to set the record straight on constitutional rights in Canada. As you can see in subsection 2(a) of the Canadian Charter of Rights and Freedoms below, Canadians and visitors, have a fundamental right to freedom of opinion and expression:

side note - even when the opinions are not based on facts and the expressions are distasteful, as long as they are lawful. We are currently "torture testing" those rights and freedoms in Canada as I write this, and thus far, the espoused freedoms are holding up; to the chagrin of most Canadians. Even though many of those doing the "torture testing" have likely never read the Charter.

But I digress. Freedom of speech is guaranteed in the Canadian Constitution, though it is called freedom of expression in the Charter of Rights and Freedoms.

Guarantee of Rights and Freedoms

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2 Everyone has the following fundamental freedoms:
  • (a) freedom of conscience and religion;
  • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  • (c) freedom of peaceful assembly; and
  • (d) freedom of association.

Now on to some editorializing of my own. Thus, in my understanding of Canadian charter law, these fellows might have a pretty good shot at winning an appeal of the "gag order", as Alex puts it, to the Provincial Court of Appeal . See section 1 of the Charter above. The grounds for appeal might be that the judge erred in issuing the order, based on the argument that it does not fall within the "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Of course, that would mean that the accused kayakers would have to decide to appeal that order, which is probably unlikely.

I find it quite intriguing that there are often discussions of law on this forum. I suspect that this is true because we are all adventurers, and love our freedoms, be they legal, societal or natural. After all, the fewer folk that you have handy by, the more of your freedom you can express.

Cheers, Rick
 

alexsidles

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Dear Parks Canada,

I read with interest a February 13 article in the Times Colonist, “Six Friends Fined Thousands of Dollars for Illegally Camping on West Coast Trail.” (Story link here.) According to the article, six paddleboaders entered the West Coast Trail Unit of Pacific Rim National Park without the required permits. They camped on the beach below the high tide line, but that was not sufficient to insulate them against charges of entry into a national park without a permit.

My interest in this case comes from my own sea kayaking. One of the world’s premier sea kayaking expeditions is a circumnavigation of Vancouver Island. Many kayakers have completed this circumnavigation, which is often reported in national and international press. See, e.g., Times Colonist; Men’s Journal; Victoria News; CBC; Kokatat’s sponsored athlete … the list could go on and on.

Of course, to circumnavigate Vancouver Island, a kayaker must transit the West Coast Trail Unit, a 70-kilometer stretch between the Deer Islands outside Bamfield and the park’s eastern boundary outside Port Renfrew. Not many kayakers have the endurance to make a 70-kilometer ocean transit without stopping. Most kayakers must stop to rest, or even camp, during the course of a 70-kilometer ocean transit. Even kayaking legend Freya Hoffmeister had to stop within the West Coast Trail Unit during her solo kayaking circumnavigation of the entire continent of North America.

Parks Canada has prohibited kayakers from landing anywhere in the West Coast Trail Unit. Parks Canada also refuses to issue permits to kayakers to enter the West Coast Trail Unit. These two decisions by Parks Canada have the practical effect of preventing the circumnavigation of Vancouver Island. One of the world’s premier kayaking expeditions has effectively been criminalized.

One tidbit from the Feb. 13 Times Colonist article particularly caught my eye. The article quotes Crown prosecutor Ian McFadgen as saying, “[The paddleboarders] said because they were on the water, in their view, they weren’t actually in the national park … That’s an incorrect understanding. The national park goes out in the nearby water portion of the park.”

I am aware the West Coast Trail Unit has a marine zone that extends out to sea. Is it the position of Parks Canada that a kayaker entering the marine zone, but not landing on shore, is subject to the requirement to obtain a permit from Parks Canada? I understand that a kayaker landing ashore must have a permit. That is not my question. My question is, does a kayaker also need a permit to paddle offshore through the park’s marine zone?

Also, how far offshore does the marine zone extend? Also, does the marine zone extend offshore of Indian Reserves that lie within the West Coast Trail Unit?

Thank you for any clarification you can provide.

Regards,
Alex Sidles
Seattle, USA
 

mick_allen

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The BC Marine Trails had always known [and discussed] it could never have the ability to take political stands:

It always knew that government changes and that 'partnerships' it entered into with government [the whole initial idea was to try and persuade government to give some/any level of protection to the few precious campsites up the coastlines] or whatever would negate that ability.

Because of that, it was always considered that individual members or individual clubs would have enough arms length to be able to and they would have to fill that role.

So clubs have to speak, and members, and people.

**

So SalishSeaNior, Rick, points out that a fundamental aspect of canadian law, the charter's freedom of expression, was over-ruled by the judge in favour of government compelled expression - and compelled non-expression. That's an extremely interesting modification for a fairly limited trespass.
 

JohnAbercrombie

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The BC Marine Trails had always known [and discussed] it could never have the ability to take political stands:

It always knew that government changes and that 'partnerships' it entered into with government [the whole initial idea was to try and persuade government to give some/any level of protection to the few precious campsites up the coastlines] or whatever would negate that ability.
I thought we were talking about protecting campsites for paddlers here.
 

JKA

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... a fundamental aspect of Canadian law, the charter's freedom of expression, was over-ruled by the judge in favour of government compelled expression - and compelled non-expression. That's an extremely interesting modification for a fairly limited trespass.
With obviously no dog in this fight, but a more-than-passing-interest in freedom of expression, I'm curious if there are other groups who would take this fight to the appeals court?

Freedom of expression issues generally attract qualified and talented persons, ready to do - legal - battle.

It would seem like a simple, but very important, argument. (Said by someone with zero legal training who is also a poor barrack-room lawyer)
 
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mick_allen

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several letter responses in todays Times Colonist:
https://www.timescolonist.com/opini...es-of-real-protesters-should-be-heard-5068921

all variously making the point about the paper’s front page juxtaposition of two stories showing radically unequal treatment: the multi week overstay of 100s of truckers [who receive no penalty for their unwanted stay] versus that of a tiny few paddlers who touched the ground for one brief night in the wilderness.

Page1&2.jpg


[but the compelled speech and then compelled silence is what gets me]
 
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Gary Jacek

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This past September our paddling club launched out of Sechart Lodge, (now Broken Islands Lodge) located just outside the park in Barkley Sound. Our various groups visited many of the Broken Islands over several days, returning to the lodge each evening. We did encounter park staff/first nations on the water as they made their rounds. All very cordial.

On a weather day, David, one of our senior members on the trip gave a talk about the creation of the park reserve. I have a video copy of the presentation. (More on this later)

During this trip, none of us carried a park pass as we thought this was not needed, since we were not camping or driving cars into the park. And we were never challenged.

However…according to…

The Park Website

“All visitors to the West Coast Trail and/or Broken Group Islands must carry your valid National Park Entry Pass on your person whenever you are visiting these areas in the national park reserve.”

Now consider this…

Had some overzealous park staffer decided to charge us, they would have caused some embarrassment. You see David, was a Liberal Government cabinet minister, under Pierre Trudeau and Jean Chrétien during the 1970s, when the park was created. And although he minimizes his contribution, I think David was the glue that pulled together Pacific Rim National Park Reserve. David brought both Mr Chrétien and Mr Trudeau to what was to become the park reserve. And they were impressed.

That learned judge could learn a few things from David Anderson. Starting with the futility of a gag order.
 

mick_allen

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Futility? What's a cost estimate in time, treasure, and trepidation with contravening the Authority of that order?

**
anyway, David Anderson should be given another golden star for whatever he did with establishing that Reserve.
 

nootka

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“All visitors to the West Coast Trail and/or Broken Group Islands must carry your valid National Park Entry Pass on your person whenever you are visiting these areas in the national park reserve.”

This implies that all sailboats anchoring in the park should have a pass. Is Parks going to charge those who don't?
Perhaps the law does not apply to the wealthy.
 

KayakNinja

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“All visitors to the West Coast Trail and/or Broken Group Islands must carry your valid National Park Entry Pass on your person whenever you are visiting these areas in the national park reserve.”

This implies that all sailboats anchoring in the park should have a pass. Is Parks going to charge those who don't?
Perhaps the law does not apply to the wealthy.
In fact they do need to have a pass, apparently Parks Canada is still in the "educational" phase of implementing this.
 
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