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Outdoor Recreationists on Deeded Land

by Mary MacGregor

(written 1990 published Beef in B.C. Nov/Dec 90, ammended 2002)

In this decade or the next, the public and members of the cattle industry will go “head-to-head” on the issue of free use of deeded land for recreation. Farmers and ranchers own more land than anyone else in the Province. This land which is committed to agriculture is also desirable for recreation. The recreating public has a number of perceptions about its use of land. This, combined with the extent and desirability of farm land for recreation and an increasing urban population will create significant political pressure for a public right to play on your deeded land. The public perceptions are:

• a desire to get away from the city for recreation.
• the difficulty in establishing one’s precise location and the ownership of the land, especially if the recreationist is not a local. Many recreationists assume that land is Crown land if it is not obviously inhabited.
• a feeling that recreation should be relaxing; something that one chooses to do, not that one has to do. Spontaneity may be prized. This sometimes means that recreationists would rather not plan a recreational activity, but would rather just proceed when the mood strikes. They feel that figuring out ahead of time what they want to do, doing the necessary research on desired location and getting the necessary permission makes work out of play.
• many recreationists understand very little about the uses to which the land is being put and have little or no understanding of their own impact. They believe that they have no ill effect on the land owner’s use of the land and since they are causing no harm, ought not to have to get permission.
• historic European attitudes toward people who own large tracts of land (“land barons”) do not help people in the cattle industry. Large land owners are seen as powerful and insensitive to the struggle of the common man. Although in law there is no distinction, city dwellers see their ownership of their home and your ownership of farm land as being different. They do not see that a loss of ownership rights on your deeded land is a loss to them as well.

The phrase “recreational access” means two different things. It is sometimes used to mean the right to cross deeded land to get to Crown land for recreational purposes. The recreational activity takes place on land other than the deeded land. It is also used to mean the right to use the deeded land for recreational purposes. Here, the recreational activity takes place on deeded land.

Looking first at the right to cross deeded land to get to Crown land, the careful recreationist first finds out the exact location of the desired crossing, and then checks at the Land Title Office to find out if the land is deeded. If it is deeded, he can look at the original Crown grant to find out what roads or trails were deemed to be excluded from the grant whether they were shown on the accompanying map or not. He may have to find out what roads or trails were in existence at the time the Crown grant was given. He can also check with the Ministry of Transportation and Highways to check their records of public roads, either gazetted or “section 4”, through the property. Assuming there is no public road or trail crossing the property, the recreationist must then identify and locate the land owner and ask for permission to cross the property to get to where he wants to go.

This description (and your own experience) should convince you that it is not always easy to find out if there is any public right to cross deeded land. The recreationist who is frustrated by the complexity of the issue may well wish for a simpler solution.

At a recent Outdoor Recreation Council Symposium on Recreational Access, recreational access to deeded land was one of the topics. There were a number of suggestions which would help both recreationist and land owner to manage recreational use, including a signing program similar to one which has been in effect for some years in Ontario.

On the down side, however, the perceptions noted above are still evident. One truly alarming suggestion which may or may not be endorsed by the ORC is to bring back “prescriptive rights”.

Prescriptive rights are rights acquired by historic use, usually for a right to cross land. They were abolished by statute in British Columbia because they do not fit our land title system. Its concept is that you can figure out who owns land and what charges exist against it by looking at the title recorded at the Land Title Office. If for example one could acquire an easement over land by continued use rather than by a formal grant from a land owner, no one would know what charges or encumbrances exist against the property, because any rights acquired by prescription would not be recorded and might not even be known to the existing owner.

Many recreationists do not know that they have been enjoying the free use of deeded land for recreation. When they discover that they actually should have had permission and can legally be prevented from continuing a recreational use that they have made of the land for several years, they look for some means to force the land owner to allow them to continue. Prescription or historic use rights have come to mind.

If this suggestion is actually promoted by the ORC, it must be actively opposed by all farm organizations. It should be opposed by all intelligent property owners, but the perceptions noted above may prevent city dwellers from understanding the dangers to them as well as other land owners.

Turning to the right to use deeded land for recreational purposes (as opposed to the right to cross), the careful recreationist must again figure out where he is and who owns it. He can make an informal inquiry of someone in the area, or can use a map and Land Title Office inquiry. He must then approach the owner and obtain permission to use the area for the desired purpose. Permission can be withheld without any reason.

What can members of the cattle industry do to improve their position in a battle between property rights and recreational access?

Associations of rural people and livestock owners can advocate land owner interests, both to government and the public. These efforts should not only seek the support of the politicians. Public support should also be sought. The myth of the “land baron” must be exploded by personalizing the members of the farm and ranch community. Possibly this should be a goal of a low-key, long term public relations project of the rural landowners.

Remember the Canadian Navy chugging up to the Arctic to retain our sovereignty rights to the far north? One of the ways of keeping your rights is to exercise them. Most ranchers now allow people to use deeded land for recreation without permission because of the cost and problems of enforcing any restrictions. In the future, you may wish to inform people through signs or otherwise that they are on deeded land, and at a minimum, that you have certain rules they must follow. This information can be given in a non-confrontational way. An alternative is to learn what organized groups make use of your land and go speak to them about what conduct you require from them in order to allow them to continue using your land.

At the very least, land owners must start to warn the public that the land being used is deeded and that there is an expectation that they will get permission for use or will otherwise respect your property rights.

The ideal solution is to educate all Canadian citizens to respect other people, including their property. While this goal may be out of reach, society values about people and property can be improved through the schools. Discuss this issue with School Board members and School District staff. It may help to get these subjects on the curriculum.

Finally, some land owners may see recreational use of their deeded land as an opportunity, giving them another land use to manage and another source of revenue to tap. If ranchers see themselves as managers of a land base rather than as managers of cattle, many new possibilities may emerge.