Pacific Rim Problem-No stopping in Pacific Rim Park Reserve

[Gary Jacek]

It seems to me that all we need is someone to attempt the 70km bypass…and fail badly.
Then the bad press will expose this evolution of absurdity.

Who here volunteers to be a casualty for the common good?

 

[mick_allen]

On a comedic approach as mentioned above, maybe one could set up a 'race' for many to be involved. Maybe call it "R2Bambam: the Impossible Dream". Prenotify in case of rescue before shore is reached of course. That part could be called R2Paypay. We could make posters and come up with other names - hmm. Might be an attractive challenge for international paddlers. Only those who fail have to pay the 'entrance fee' [haha].

 

[nootka]

Suppose a kayaker were to start paddling the WCT and it got dark before they reached the end. Should they call for a rescue? Since they are not allowed to land. If the Coast Guard declined to rescue them, they would have no choice but to land.

 

[mick_allen]

So a/the crux of the issue: as an reasonable human being should one call the CG when there's a forbidden but usable coastline right there. Is this an issue where one does have the right to choose which laws are obeyed?

along that line, a catchy new name might be "The Forbidden Coast".

 

[Gary Jacek]

How about “The Graveyard of the Pacific”. Oh wait…they used to call it that.

 

[mick_allen]

or 'the Kafka Koast' : the imperilled choice of which law to obey. Or the 'Pacific Grim Park Reservation'.

 

[kayakwriter]

Just anchor your kayak, after that you're only 'hiking' upland?
Alternatively, anchor and kayak camp. [I think a problem is that the water is technically in the park too]

or 'the Kafka Koast' : the imperilled choice of which law to obey. Or the 'Pacific Grim Park Reservation'.

Maybe we need a new website for this? Worstcoastpaddler.com?

 

[ChG]

To put things in perspective, the main reason the group of 6 stand-up paddlers were fined in 2020 was for the fact that the Pacific Rim park was closed entirely to protect First Nations territories from Covid. Regardless of anybody views on Covid rules at that time, it’s easy to understand the First Nations fear as they’ve in the past suffered from small pox. Add Truth and Reconciliation to that, you can understand the heavy fine.

I would think that during normal time Parks Canada is not much concerned about a solo paddler circumnavigating VI having to come ashore for a rest or one overnight.

It’s very hard as you’ve noticed to get an answer from them to a specific question. Often you’re talking to somebody back east that just go by the book. On a funny note during summer 2021 we called Parks Canada to get reservation info and payment for the Broken Island Group and the agent told us “Just drive to the Park’s entrance gate and make your payment there”. the agent had no clue that it was a Marine Park.

I would think that if a solo kayaker going around VI showed up at the Park ranger station at either end during the open season, he would get an overnight permit. The orientation course is usually for hikers and it’s 20 minutes long. I’m intending to stop at the Port Renfrew station during the open season and ask them that question.

We were paddling there last Fall in late October but they were already closed. One of my favourite paddle is to go from the Gordon River mouth to Trasher’s Cove via the sea arches and up to Owen’s Point, then cross the San Juan Bay to Botanical Beach and come back along the south side of San Juan Bay.

 

[Kundune]

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

No Charter issues. It was a “joint submission” to the judge, indicating a) guilty pleas, and b) that the Crown and defendants had mutually agreed beforehand on an appropriate punishment.

 

[alexsidles]

Justice is served! The miscreant paddleboarders’ court-ordered, agency-approved apology appeared in the Summer 2022 issue of Mountain Life Magazine. Scroll to page 41 for the text.

This two-year-old thread has raised so many issues of public policy important to kayakers, I’m reluctant to add one more, but I simply cannot help myself. Let’s talk First Nations land title!

The paddleboarders’ statement apologizes for, among other things, accessing the “unceded” lands of the Huu‑ay‑aht and Ditidaht First Nations. Fair point vis-à-vis the Ditidaht lands, but is it really accurate to call the Huu‑ay‑aht lands “unceded?” Wouldn’t it be more accurate to call the Huu‑ay‑aht lands “ceded” now that the treaty has been signed?

The Huu‑ay‑aht are parties to the Maa-nulth First Nations Final Agreement. The Maa-nulth Agreement, per chapter 1, section 1.1.1 of the agreement, “is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982."

Chapter 1, Section 1.11.2 of the Maa-nulth Agreement says that the agreement “exhaustively sets out the Maa‑nulth First Nation Section 35 Rights of each Maa‑nulth First Nation, their attributes, the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed, and those rights are: … the aboriginal rights, including aboriginal title, modified as a result of this Agreement, of that Maa‑nulth First Nation in and to its Maa‑nulth First Nation Lands and other lands and resources.” (Emphasis added.)

Chapter 2, Section 2.3 of the Maa-nulth Agreement ratifies the title of each party First Nation in its share of the Maa-nulth First Nations Lands. But neither that section nor any other section of the Maa-nulth Agreement vests title in any First Nation to any lands that are not Maa-nulth First Nations Lands.

Chapter 2, Section 2.1.1.a defines the Huu‑ay‑aht First Nations Lands as those listed in Appendix B-1 of the Maa-nulth Agreement. Appendix B-1 of the Maa-nulth Agreement (in particular, Appendix B-1, Part 1(a) and B-1, Part 2, PDF pages 28–32 of the appendices) shows that the easternmost Huu‑ay‑aht First Nations Lands on the Juan de Fuca Strait is the former Indian reserve known as Masit, just south of Pachena Bay. None of the coastline east of Masit is Huu‑ay‑aht First Nations Lands.

The paddleboarders claim they launched somewhere on the Klanawa River, camped at the mouth of that river, and then camped again at the mouth of the Cheewhat River. None of that stretch of the strait is identified as Huu‑ay‑aht First Nations Lands in Appendix B-1 of the Maa-nulth Agreement.

I think the paddleboarders (and Parks Canada, who exercised approval authority over the paddleboarders’ public apology) would have been more accurate to apologize for entering the unceded lands of the Ditidaht First Nation and the duly ceded lands of the Huu-ah-aht First Nations, now the acceded lands of the Canadian Crown.

The phrase “unceded lands” certainly rings righteously, but I don’t think the ring is one hundred percent true in this case. The hapless paddleboarders may have had less to apologize for than they thought.

Alex

 

[SalishSeaNior]

The paddleboarders’ statement apologizes for, among other things, accessing the “unceded” lands of the Huu‑ay‑aht and Ditidaht First Nations. Fair point vis-à-vis the Ditidaht lands, but is it really accurate to call the Huu‑ay‑aht lands “unceded?” Wouldn’t it be more accurate to call the Huu‑ay‑aht lands “ceded” now that the treaty has been signed?

I will begin by stating categorically that I am not an expert in Canadian Constitutional Law, or Treaty Law, though I do have some training and a deep interest in both.

To answer the question, I think we need to begin by defining the term "ceded". The Oxford Dictionary give this definition:

"give up (power or territory)."

It is my understanding that the Supreme Court of Canada has ruled that modern treaties with aboriginal peoples do neither. Rather they specify "aboriginal title" to specific territories, as well as rights, powers and authorities within those specified territories.

That is why today in British Columbia, First Nations Governments have extensive rights and authorities to specify, limit or preclude use of land for camping and other uses and to collect fees for use of lands within their traditional territories, as has happened in the territory belonging to the Nuu-chah-nulth first nations north of Tofino. Thirty or forty years ago, when Tofino was still just a sleepy fishing village, and before the modern treaties were signed, we used the entire territory north of Tofino for kayaking and camping trips. Now, the First Nations exert their right to specify or deny use and set policy regarding use and access to lands in their territories. That is happening throughout B. C. on an ongoing basis.

There is an excellent article written specifically for Kayakers on the BC Marine Trails website, titled: Discussion on First Nations Rights and Title from the Beach with further links for those who wish to inform themselves about this increasingly important issue and area of Canadian law. This article alludes to the fact that it is in fact "Canadian Law" that encodes and specifies aboriginal title and use. The origins of that law go back to the "Royal Proclamation" of 1763 which is the basis for both Canadian Constitutional Law and the Common Law when it comes to dealing with aboriginal lands, title and rights. The Royal Proclamation explicitly states that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. The Royal Proclamation further sets out that only the Crown can buy land from First Nations.

During the period of European settlement and colonization of British Columbia, most of the direction given by that underlying law was ignored. There were in fact very few treaties made with First Nations in what is now British Columbia. That does not mean the law did not apply, it was still in force and is acknowledged in Section 25 and in Section 35 of the Canadian Charter of Rights and Freedoms. which is a part of the Constitution Act of 1982

Thus the modern treaties hold government to the letter of the law when treaties are being negotiated. It is our law, settler law, our Constitutional law, now being enforced after more than a century of colonization and denial of Aboriginal title an rights. With respect to the treaties and agreements being negotiated on southern Vancouver Island, it is my understanding that the Government of British Columbia is in ongoing treaty negotiations with the Nuu-chah-nulth Tribal Council which represents the individual First Nations. So no, I would not say that it would be right to call the lands or territories ceded, rather, the treaty process sets out the lands and territories to which each first nation has aboriginal title and rights.

It is important to note that aboriginal title does not override property titles or rights, that are defacto privately owned by non-aboriginal Canadians. I have never heard a first nation make an argument for return of privately owned lands. In fact, just last April, the Osoyoos Indian Band here in the Okanagan had a celebration after the purchase of an acre of land bordering the Okanagan River where the Syilx People had a traditional salmon fishing site that they had used for thousands of years prior to colonization. The townsite including the falls, was expropriated by the Provincial government and granted to a developer in 1892, no treaty.

Canada is making progress on treaties and reconciliation, but there is a long way to go. Knowledge of the historical facts, and about the truth and reconciliation, and the treaty processes by the general public is an important piece of the puzzle. So thanks Alex for bringing this thread back to the fore and asking the questions. We all have a lot to learn in order to understand these complex issues.

Cheers, Rick

PS - For our American Friends, there are plenty of broken treaties and un-ceded land claims on your side of the border as well. The treaty claim that fascinates me the most is the United States v. Sioux Nation of Indians in which, in 1980, the US supreme court awarded a huge cash payment in settlement to the Sioux peoples for their un-ceded lands in the Black Hills. The Sioux have not accepted the compensation awarded to them by the Court, nor agreed to cede the lands claimed. The settlement was valued at over $1 billion as of 2011. The Sioux made this decision even though the people on the Pine Ridge and Rosebud reservations are for the most part dirt poor. It is my understanding that the money sits in a Bureau of Indian Affairs account to this day accruing compound interest. I sometimes wonder how long it will be before the Sioux have enough money in that account to buy back much of their stolen land?

Great Sioux Reservation, Treaty of Fort Laramie 1886

 

[alexsidles]

It is my understanding that the Supreme Court of Canada has ruled that modern treaties with aboriginal peoples do neither [give up power or territory]. Rather they specify "aboriginal title" to specific territories, as well as rights, powers and authorities within those specified territories.

The drafters of the Maa-nulth Agreement have beaten to the Supreme Court to the punch on this issue. The treaty is explicit that the signatories' aboriginal title is modified by the treaty such that aboriginal title will only apply to the lands identified in the treaty—in the case of the Huu-ay-aht, the lands identified in Appendix B-1—and that what was formerly aboriginal title will now continue only as title in fee simple.

From section 1.11.3 of the Maa-nulth Agreement: "Notwithstanding the common law, as a result of this Agreement and the Settlement Legislation, the aboriginal rights, including the aboriginal title, of each Maa-nulth First Nation, as they existed anywhere before the Effective Date, including their attributes and geographic extent, are modified, and continue as modified, as set out in this Agreement." (Emphasis added.)

From section 1.11.4 of the Maa-nulth Agreement: "For greater certainty, the aboriginal title of each Maa-nulth First Nation anywhere that it existed before the Effective Date, including its attributes and geographic extent, is modified and continues as the estates in fee simple to those areas identified in this Agreement as the Maa-nulth First Nation Lands and Other Maa-nulth First Nation Lands of that Maa-nulth First Nation." (Emphasis added.)

From section 1.11.5.c of the Maa-nulth Agreement: "Canada, British Columbia and all other persons do not have any obligations in respect of any aboriginal rights, including aboriginal title, of each Maa-nulth First Nation to the extent that those rights, including title, might be in any way other than, or different in attributes or geographic extent from, the Maa-nulth First Nation Section 35 Rights of each Maa-nulth First Nation set out in this Agreement." (Emphasis added.)

If this language does not represent the ceding of territory, then I don't know what would. The Maa-nulth Agreement is careful to avoid the use of the politically explosive word "cede," but what else could you call an instrument in which a First Nation agrees that "Canada, British Columbia and all other persons" do not have any obligations in respect of that First Nation's aboriginal rights and title to its lands, except as set forth in the instrument ... which only grants the First Nation title to a minority of its lands? Wouldn't you have to say the First Nation had "ceded" the majority of its lands through such an instrument?

Note, too, the "capital transfer payment plan" set forth in chapter 16 of the Maa-nulth Agreement: $26.4 million for the Huu-ay-aht First Nations, payable in ten annual installments. When you consider the capital transfer plan in light of the land title plan described upthread, it sure looks a heck of a lot like the buying and selling of aboriginal territory!

The treaty doesn't use the language of buying and selling, of course, any more than it uses the language of ceding and extinguishing ... but I'm not sure I can tell the difference.

That is why today in British Columbia, First Nations Governments have extensive rights and authorities to specify, limit or preclude use of land for camping and other uses and to collect fees for use of lands within their traditional territories, as has happened in the territory belonging to the Nuu-chah-nulth first nations north of Tofino. Thirty or forty years ago, when Tofino was still just a sleepy fishing village, and before the modern treaties were signed, we used the entire territory north of Tofino for kayaking and camping trips. Now, the First Nations exert their right to specify or deny use and set policy regarding use and access to lands in their territories. That is happening throughout B. C. on an ongoing basis.

Aboriginal rights and title exist prior to, and independently of, any treaty. That is why the Maa-nulth Agreement does not add aboriginal rights and title; rather, it "modifies and continues" them. Specifically, it "modifies and continues" them by removing them from the majority of the Huu-ay-aht First Nations' territory in exchange for $26.4 million!

Not every First Nation is interested in seeing its aboriginal rights and title "modified and continued" along the lines of the Maa-nulth Agreement. Many First Nations believe they can strike better, more flexible deals for themselves with so-called "side agreements" than they could get through a permanent, comprehensive treaty along the lines of the Maa-nulth Agreement. The Ahousaht First Nation, for example, north of Tofino, is "negotiating land and resource agreements outside the treaty process."

Compare the map below showing the pre-treaty Huu-ay-aht traditional territory with the map showing the post-treaty Huu-ay-aht Maa-nulth First Nations Lands and see if you agree with the Ahousaht that maybe the treaty didn't represent the best possible deal for the Huu-ay-aht. Note that the pre-treaty map scale is 1:175,000 while the post-treaty map scale is 1:90,000:

Above: pre-treaty Huu-ay-aht lands.

Above: post-treaty Huu-ay-aht lands.

$26.4 million is a heck of a lot of money, but money has a way of getting spent, whereas land lasts forever. I'm not convinced the Ahousaht are wrong to be skeptical of the treaty process, given how it played out for the Huu-ay-aht.

It is important to note that aboriginal title does not override property titles or rights, that are defacto privately owned by non-aboriginal Canadians. I have never heard a first nation make an argument for return of privately owned lands.

This may be the most explosive question yet!

The Ahousaht, for example, claim their aboriginal title gives them the rights to exclude visitors from Crown lands or demand fees for visiting Crown land. The Crown, under the Ahousaht's theory of aboriginal title, cannot prevent the Ahousaht from exercising these rights on Crown land.

The Ahousaht have no treaty that says anything like this. The Ahousaht even don't want a treaty, as cited upthread. Instead, the Ahousaht assertion of rights is grounded in aboriginal title.

If the Ahousaht theory of aboriginal title is correct, then when the Crown granted parcels of Crown land to private owners in the 19th century, wouldn't it be the case that the Ahousaht can still exercise their rights on those parcels? After all, the Crown cannot grant what the Crown does not have, and if the Crown does not have the power to prevent the Ahousant from exercising their aboriginal rights, then the private landowners, the grantees of the Crown, also do not have the power to prevent the Ahousaht from exercising their aboriginal rights.

As Rick points out, neither the Ahousaht nor any other First Nation are kicking private property owners off their land ... at this time. But they also haven't "ceded" the right to change their minds on that point. As I said, an explosive question!

Alex

 

[WGalbraith]

Having hiked the trail 5 times, I imagined paddling my kayak over the same route. A few years ago I decided that I wanted to paddle from Bamfield to Victoria, planning to stay one night on the West Coast Trail. After many hours of phone calls, web research I cancelled the plans, totally frustrated by the red tape and bureaucracy to get permission. In essence, if I paid the full amount for a trail pass and attended the mandatory orientation session in Port Renfrew or Bamfield, I was not allowed to overnight on the Trail. Needless to say, I have yet to paddle this last stretch of a V.I. circumnavigation. Several people recommended that I was foolish to even try to get approval and that landing at dusk and leaving early in the morning would have been the only possible way to complete this trip.

 

[nootka]

Several people recommended that I was foolish to even try to get approval and that landing at dusk and leaving early in the morning would have been the only possible way to complete this trip.

I also suggest:
-not telling strangers in the vicinity what you are doing
-not camping in hiking campsites
-keep a low profile ie no fires

 

[eggabeewa]

It's sad that it has come to good advice on a sharing forum like this being not to share. I'm sure many people would be willing to share good information but have to be careful about incriminating themselves. There is lots good info out there but one has to work harder to read between the lines and glean it. Maybe just do what Nike says.