Kelvin Grove Officially Off Limits

[Roko]

This kind of reminds me of similar land use issues we deal with in the Jeeping community... Some off-roading areas were closed by the Alberta Gov't recently, including an area that was closed shortly after Sustainable Resources Development (SRD) sent a thank-you letter to a Calgary Jeep club for having cleaned that area up after a long weekend of other idiots trashing it... SRD didn't want any offroaders opinions when they started closing off-roading trails, even though the vast majority of us in organized groups despise the idiots who go and mess up trails. It wasn't until the clubs banded together to form the Alberta 4 wheel drive association to deal with SRD and prove to them we weren't all red-necks out to tear up people's lawns... And positive change is slowly happening now because of it.

I agree with Nadwindy's comment that something like our AUC in Alberta is the best way to get around this.. True, the Lion's Bay Council doesn't want your individual opinion, but an organized group like a "BCUC" does have a shot at changing things.. Even if it won't give you access to private lands, it can help you prevent them from blocking access to public waters if that is indeed illegal for them to do.

Ultimately doing something has an infinitely better chance of accomplishing something than doing nothing..........

Just my 2 PSI.

 

[CapitanBlack]

Actually, if you read the new by-laws they published, they think they can. Question is; are their bylaws enforceable in law or only by their own by-law officers? They think they can call the cops and have you removed.

I'm certain a diver and a resident are DYING to test the legality of it by being the first to have to chat with the responding RCMP constable or perhaps with the judge.

Marty, you're not too busy, are you?

I've read that document. My opinion - it's in contradiction to the Act of Land.

Do you mean, if I'll park somewhere outside and walk to the park - it's OK, but if i have my scuba rig on - they can call the police??? Sounds like a bad joke... Remove me for what reason?

Same story happened at the Fury Creek dive site... I know that some rich local habitats constantly complains about the divers and even tried to rid out of them completely, but failed to do that. So, if you're there, you can waive them friendly, smile and say "Hello!". They absolutely have no any legal authority to prevent you from going into the water...

There is also a public parking space that belongs to the local community and it was free a couple of month ago...

 

[sschlesi]

It doesn't make much sense to me. The access trail to the water is protected by the Land Title Act so no one can restrict the public from accessing the water at that point. The city council can restrict parking and activities on the land through bylaws, but unless they have a water lease, you can do whatever you want below the high tide line. Most of the diving I do takes place below the high tide line so "prohibiting diving" seems like it's out of their jurisdiction. Maybe they could have worded it better and banned: "assembling dive gear on city property for the purpose of diving locally".

That's basically what I was thinking, you don't scuba dive on the land, and they have no authority over the water.

I have skimmed through the Community Charter, which grants local government very broad power in limiting activity within their boundaries.

I also skimmed the Land Act, and the Land Title Act. This confirms that land title ends at the water line (unless specifically granted title), so I presume they have no authority below the high tide line.

I did not see anything that guarantees public access to the water. Swankenstein do you know where in the act(s) this is mentioned?

I suspect that banning scuba diving is technically beyond their authority, though arguing that will probably require lawyers and courts. And if pressed they clearly have the authority to re-write the bylaw to ban scuba gear from parks, just as they ban striking a golf ball or shooting and arrow in all their parks. Or they could just remove public access to the parking stalls.

I wouldn't be surprised if there is some common law related to public access that prevents them from allowing an activity to one group in a public place, and not to another. But I have no idea how to find it.

 

[fire_diver]

OK, I'm an outsider (south o the border) but I have been reading this with interest. I can see the jurisdiction to ban archery or hitting golf balls in public places, becuase there is the possibilty of harm to a bystander. Scuba is completely benign, so there could be no justification for prohibition from public places.

Is there any higher power that an appeal can be made to? What would stop the local govt from evicting people from thier homes and taking personal possesion of those empty homes? I realize that's extreme, but that's my point. There has to be some authority that THEY answer to.

 

[sschlesi]

Actually, if you read the new by-laws they published, they think they can. Question is; are their bylaws enforceable in law or only by their own by-law officers? They think they can call the cops and have you removed.

All municipal bylaws are enforceable by designated bylaw enforcement officers and by police.

The police may be too busy to care, on the other hand they may enjoy a nice walk down to the beach. Take your chances.

 

[MarkH]

The computer I'm on seems to want to block links from the Land Title Act, but the reference seems to be: Section 75(1)(c) and (d)
I'll look up the actual reference later when I'm on a different computer. From what I remember it said that when large waterfront parcels of land are subdivided (as it would have been to build houses in Lions Bay), there must be public access to the water from a road every few hundred meters. If you look on a zoning map of a waterfront area, these are clearly marked between private lots. If you go and look for these access paths in person, most of them are unmarked, uncleared and not always passable by humans (I've seen some that end in 20-foot cliffs). After reading the Lions Bay bylaw amendment again, I noticed that these "no diving" rules are only for City parks. Parks are usually considered to be city property and not always part of the Land Title Act public access trail system. That's why many parks have closing hours when you're not allowed to access them at night. If it's a city park, they can do whatever the city council votes in. Hikers have been having the same problem in Lions Bay for years. The trails up the mountains are public, but the trail head access belongs to the Village of Lions Bay so the residents have been trying to ban hikers from entering the public trails for years.

 

[MarkH]

Here's a link to a Lions Bay zoning map: http://keeplionsbayunique.com/Lions_Bay_OCP_MAP.pdf
The Kelvin Grove dive site is in a city park, but there are also several public access lanes to the water along the shoreline.

 

[CapitanBlack]

I recently dove in Lynn Valley park (30-ft pool), but before doing that, I spoke to park's rangers. They said scuba diving is not prohibited in the park and I am free to go. They only warned me about potentials risks of diving in mountain rivers and that's it...

Just wonder if sporting activities in those two parks (Lynn Valley and Kelvin Grove) are regulated by the same Canadian law?

 

[P Stickman]

HOLY LONG POST BATMAN!!!

I have read through a bit of the Local Government Act in regard to bylaws at bclaws.ca

The Municipality certainly has the right to pass bylaws related to municipal park use (park land within the municipality) etc, however it seems there may be some restrictions to their authority (not surprising). It would seem for instance that land use restrictions can be placed to address “nuisances”, environmental or heritage damage etc.

I find it interesting that all other sections of the Lions Bay bylaw are directed at "No persons..." whereas this single item related to diving is directed at "No persons except residents of Lion's Bay…". This seems to be a curious distinction but by including it they are not banning scuba diving at the site. Therefore, they cannot later make the argument that diving is inherently harmful to the environment or troublesome to other park users. They also can’t make the argument that they are concerned the municipality may be held liable for diving related accidents. They simply don’t want outsider’s using it. I suspect it is that point that would fail a challenge.

This issue also reminded me of the ever present access issues in climbing. I am sure there are other examples. I quickly browsed through some of the websites involved (such as access-society.ca) Climbers Access Society of British Columbia. It seems there, that where park closures or usage restrictions occur, they are always (from what I could tell at a glance) directed at everyone equally. Additionally, the reason for closures/restrictions are somewhat more defensible… construction in the area that would cause safety issues for climbers and workers, fire hazards, animal habitat disturbance concerns, etc.

I also found it interesting that the following article is posted on the community online news (lionsbay.net) just one month before the bylaw was published specifically pointing out the wonderful scuba diving opportunities in the area. It also points out the challenges being faced by the community regarding inappropriate park use and legitimate nuisances. Those are valid concerns and I think that they need to be considered by members of the dive community who desire to challenge the ban. (ie… diving after park closures etc. will probably hurt the dive community’s fight for access rather than help it. )

It’s Beach Party Time Again
Contributed by Ruth Simons
Monday, 22 June 2009
Last Updated Monday, 22 June 2009


Summer time in Lions Bay is when many people gravitate to the beach. When the weather is hot the beach parks are wonderful places for sunset picnics and our western exposure means the water stays nice and warm for swimming up until twilight.

Our beach parks are special and for some the parks continue to be playgrounds well after the sun goes down. For those of you who live away from the beach you likely are not aware of the play that takes place at our parks well into the early hours of the morning most often during the summer. You also may not be aware of the many people who come to Lions Bay for scuba diving and cliff diving just south of Kelvin Grove. Our beautiful natural environment is enjoyed by many and the Internet is helping to spread the word.

The sounds of children playing in the water, dogs barking, people laughing and enjoying the beach are special sounds of summer which we expect and enjoy during the day and evening. But, there are other sounds that are not so special; constant shouting and screaming, glass breaking, car doors slamming, screeching of tires up until 3:00 a.m. or later is definitely not special or unusual. The water reflects the sound uphill and small gatherings get very loud. Loud and disrespectful park users represent all ages, but most teenagers living in Lions Bay will at some point be drawn to parties either at homes or at the beach. Unfortunately, with text messaging, a small gathering turns to a large group very quickly and our improved bus service has made it easier to deliver young party goers to our Village.

Now is a good time to spread the word at home to discourage promotion of Lions Bay beach parks as a night time party destination and to warn people that our parks close at 10:00 p.m. The RCMP have been consulted in preparation for the summer activity and will be patrolling. CN Rail Police are stepping up their patrols and charging people who trespass by walking on the railway tracks. Our by-law officer will be around on the weekends ticketing cars without parking passes, towing is being arranged as well.

Raising teenagers is a challenging time; we hope that the extra security will keep them safe, while preserving the peace and quiet for residents and those that enjoy a safe, clean beach park.


Just a few thoughts and I hope this all gets resolved soon. I think I only dived Kelvin’s once but from what I remember it was very nice.

Paul

 

[MarkH]

Here's what the Act says:
(c) if the land subdivided borders on

(i) a body of water, the bed of which is owned by the Crown,

(ii) the boundary of a strip of land established as the boundary of a water reservoir, where the strip of land and reservoir are owned by the Crown, or

(iii) a strip of Crown land 20 m or less in width contiguous to a natural boundary as defined in the Land Act,

access must be given by highways 20 m wide to the body of water and to the strips at distances not greater than 200 m between centre lines, or, in a rural area where the parcels into which the land is subdivided all exceed 0.5 ha, at distances not greater than 400 m between centre lines


The link to the act is here: Land Title Act