Kelvin Grove Officially Off Limits

[sschlesi]

Sintax,

Hopefully that letter will start a useful conversation with the local government in Lions Bay. Please let us know what sort of response you get.

FYI, in the community charter that governs all local governments in BC, it is required that the councils reasons for enacting a bylaw be provided to the public upon request.

See Part 2, Division 1, Section 8, Sub-section 9 for details.

Here is a link to the relevant document Community Charter

 

[DaleC]

Well, let us know if they respond.

I am curious about several points regarding this issue.

First is the condition of the public access lanes, whether they are passable or not (who cares about the diving conditions at this point). I think I will try to take a drive out there this weekend and do some survey work. If they are not passable, or if residents have fences, structures or hedges blocking them, can we petition the appropriate authorities to intervene on our behalf to open them. Having divers legally cut between their houses and diving in front of their docks might be worse than having them walk through their parks. That may provide some pressure for the council to reconsider its stance towards a less intrusive park access arrangement.

Next, I wonder if it is legal to restrict diving for non residents but allow it for residents. In the whole bylaw document it is the only instance where this discrimination occurs. Yes, they can limit activities as a whole but can they discriminate between residents and non residents in this way (my kingdom for a constitutional lawyer)? It would be like Vancouver making a bylaw that only allowed residents to cycle on the seawall but forbaid anyone else. I would be curious whether a municipality can enact a bylaw that discriminates in that way for no recognizably valid reason. Can anyone point to a simular law somewhere in Canada?

Who controls the foreshore? From the document it would appear that Lions Bay thinks it does.

I also wonder who controls the parking lot. If I were only picnicing there would I still have to pay the $8 fee? Can they also legally discriminate against divers/non residents that way? Where do the residents park.

Questions questions questions. Lots of homework to do. Lions bay will succeed if no one intelligently challenges them. That may not seem so scary in and of itself but when you look at the Howe sound and see how many dive sites depend on municipal access it could set a precident that may come back to bite us one day.

Lastly, I notice the restriction only applies to SCUBA diving. Doesn't say anything about skin diving though. I wonder if they would try to cite me for snorkelling by mistake.

 

[sschlesi]

First is the condition of the public access lanes, whether they are passable or not (who cares about the diving conditions at this point). I think I will try to take a drive out there this weekend and do some survey work. If they are not passable, or if residents have fences, structures or hedges blocking them, can we petition the appropriate authorities to intervene on our behalf to open them. Having divers legally cut between their houses and diving in front of their docks might be worse than having them walk through their parks. That may provide some pressure for the council to reconsider its stance towards a less intrusive park access arrangement.

That may be a good strategy, though it will be messy in that the people annoyed by using the public access, are not the same people in Kelvin Grove that are presumably driving the council to create the bylaw.

Next, I wonder if it is legal to restrict diving for non residents but allow it for residents. In the whole bylaw document it is the only instance where this discrimination occurs. Yes, they can limit activities as a whole but can they discriminate between residents and non residents in this way (my kingdom for a constitutional lawyer)? It would be like Vancouver making a bylaw that only allowed residents to cycle on the seawall but forbaid anyone else. I would be curious whether a municipality can enact a bylaw that discriminates in that way for no recognizably valid reason. Can anyone point to a simular law somewhere in Canada?

I strongly suspect this is NOT legal. I think that there must be some examples in common law that guarantee equal access to the public in parks. I only wish I knew how to find the relevant cases. I'll have to think of who I know that is a lawyer.

Who controls the foreshore? From the document it would appear that Lions Bay thinks it does.

The land title act makes it quite clear that title to a body of water (below the high tide line in this case) must be explicitly transferred. It is unusual for that to be the case, though someone would have to check with the land title office to be certain.

I also wonder who controls the parking lot. If I were only picnicing there would I still have to pay the $8 fee? Can they also legally discriminate against divers/non residents that way? Where do the residents park.

The municipality controls the parking lot. Everyone is required to have a parking pass, residents are given a pass on request, everyone else must purchase a pass. This is no different than parking in a parkade downtown that may have reserved parking spots, monthly passes etc.

Lastly, I notice the restriction only applies to SCUBA diving. Doesn't say anything about skin diving though. I wonder if they would try to cite me for snorkeling by mistake.

The bylaw is very explicit about scuba diving, an overzealous bylaw officer may write a ticket to a snorkeler, but it would never stand up if challenged.

 

[DaleC]

Good thoughts Scott.

These are just some of the questions we need to look at before addressing the issue directly. I'll do my part and hopefully others will as well.

Here's a link to a community eblog that describes the towing plan for the parking lot. In the same blog you can find posts where they are also proposing to ban commercial hiking, using degridation of the watershed as their reasoning. Closed gate mentality - yes, but they are a smart bunch of cookies too. Whom ever takes this issue on will have their work cut out for them. Lions Bay Community Online BC Canada - Ticket and Tow Starts in Kelvin Grove - July 31!!!

I am going to email the CBC reporter from the hiking story as well and forward the supporting documents from this issue. "Lions Bay at it again" and all that. Perhaps they will want to revisit the story now that the fire ban rationale seems a little more suspect. Perhaps they would revisit the story if lots of people emailed them

 

[TheWetRookie]

For parking, they have put up new signs and such and there is 5 spots that are designated for visitors and they are free. A dive buddy of mine spoke directly to the by-law officer that he ran into there and he confirmed it also.

 

[Joe Cool]

So, I [-] was bored at work today[/-] had a bit of free time so I wrote up a letter and sent it to the ruling body of Lions Bay.

Maybe if a bunch of us voice our concerns, people will listen. I'm also considering sending a copy to CBC just to see if they will get interested. Think that would be a bad idea?

Here's the letter:

Attention Mayor and City Councilors of Lions Bay,

I am an avid SCUBA diver and I am writing to express my surprise and concern regarding the recent amendments to your Parks Use bylaws, which state: "Section 12.1 - No persons except residents of Lions Bay and their visitors may scuba dive at Kelvin Grove beach park. No persons may scuba dive at Lions Bay Beach Park."

Divers have been enjoying the use of Kelvin Grove Beach Park as an entry point for many years. This dive site (which is identified in several popular books and numerous web sites) is known for it's beautiful underwater topography which is teeming with marine life.

As our area is rated one of the best diving destinations in the world, Kelvin Grove attracts both local and international divers who are happy to pay the $8/day parking fee which is collected by Lions Bay Marina (and presumably used to maintain the park). Kelvin Grove Beach Park is an ideal dive site because in addition to a safe and easy water entry, the large (and usually empty) parking lot and public washroom are very convenient.

Generally speaking, divers are a good group of people. We are interested in learning about and observing what is found in our oceans and many divers actively work to protect this valuable ecosystem. Ongoing projects by the Vancouver Aquarium such as the Rockfish Abundance Survey (fish research | vanaqua.org) rely on local divers to help study changes in our marine ecosystem. Additionally, I personally know many divers who fill their pockets with garbage, discarded fishing line and other harmful objects that are found underwater and dispose of them properly on the surface.

I am unsure of what prompted this new bylaw, but many local communities have decided to live in harmony with divers. Some dive sites (notably the Lookout Point dive in West Vancouver) have signs clearly stating rules for the site (no changing clothing in public view, be respectful of residents by not purging tanks/regulators at night, etc.) as well as helpful tips for diving safely. Some communities even go so far as to provide small areas designated for donning scuba gear with a bench to rest our equipment.

The local dive community would be very happy to discuss mutually agreeable options that will ensure that Kelvin Grove Beach Park can be enjoyed by residents and divers alike.

Please let me know how to get started on officially recommending a change in this bylaw. It would also be helpful to know your reason for amending the bylaw so steps can be taken to prevent any trouble in the future.

Thank you for reading, and your consideration.

Sent to: admin@lionsbay.ca, office@village.lions-bay.bc.ca

Sintax604, nicely written letter. Let me know what I can do to help.

 

[DaleC]

For parking, they have put up new signs and such and there is 5 spots that are designated for visitors and they are free. A dive buddy of mine spoke directly to the by-law officer that he ran into there and he confirmed it also.

Mike can you confirm that, if I went to the park to snorkel, I could park in those spots for free? Is that what you mean.

 

[James Bond boat entry]

Interesting read concerning Riparian Rights and Public Foreshore Use.

http://www.agf.gov.bc.ca/clad/tenure_programs/cabinet/riparian.pdf

 

[vancouverdiver]

Has anyone dove Kelvins since July 31st?

 

[BradnerBoy]

Maybe if a bunch of us voice our concerns, people will listen. I'm also considering sending a copy to CBC just to see if they will get interested. Think that would be a bad idea?

It's a great idea, but why only to the CBC? CC it to as many radio, TV and print media outlets as possible so they can all see that they're "competing" for the story.

Someone will surely bite.