Public Roads, Highways and Forest Service Roads Association of British Columbia Land Surveyors Professional Development Seminar March 3, 2016

Public Roads, Highways and Forest Service Roads Jeff Beddoes Surveyor General Division, LTSA Introduction and Overview Dave Swaile Surveyor General Division, LTSA Official Plans pursuant to the Land Act and Crown grants Bill Clifford Ministry of Forests, Lands and Natural Resource Operations (remote from Victoria) Forest Service Roads Coffee Break 10:00 – 10:15 Ian Lloyd Surveyor General Branch Natural Resources Canada Roads through Indian Reserves in British Columbia Harry Badial City of Surrey Roads and Highways within Municipal Boundaries Leslie Stephens (nee Elder) former Approving Officer, Ministry of Transportation and Infrastructure Items of Interest to Land Surveyors Questions for Panel

Roads, Highways and Trails have long presented challenges to land surveyors, administrators of Crown land and the general public. What creates a road or a highway? When is a trail public? How wide is a road, a highway, a wagon road, a trail? What documents are available to assist when researching these matters?

Dave Swaile will discuss Trails, waggon road a little later

Trails, Public Roads, Highways and Forest Service Roads are all unique; In the manner of how they are created, Their width, With regard to their ownership, In the manner in which they are closed and their ownership conveyed to a person.

Public Road A public road is defined in the Land Act Chapter 245 RSBC 1996 as: "public road" means a portion of Crown land designated or indicated as a road on a plan of survey made under this Act, whether or not a road is constructed, and includes a road allowance or walkway allowance established under section 79;

Road dedication on a Land Act Plan

Public Road A public road can also be created pursuant to: Section 79 of the Land Act. Depiction of an area clearly labelled as “Road Allowance” or “Walkway Allowance” on a confirmed plan filed in the Crown Land Registry where the plan clearly identifies that the Road Allowance or Walkway Allowance has been established pursuant to section 79; and A public road can be established pursuant to section 80 of the Land Act by depiction of a polygon on a subdivision plan prepared pursuant to the Land Title Act clearly labeled as “Road”.

Land Act Plan trying to create a ‘Road Allowance’

Land Title Act Subdivision Plan showing a s. 80 Land Act Road

Road Allowances on Township Plans are simply Crown land

Highway Highway is defined in the Transportation Act as:   "highway" means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following: deposit of a subdivision, reference or explanatory plan in a land title office under section 107 of the Land Title Act; a public expenditure to which section 42 applies; a common law dedication made by the government or any other person; declaration, by notice in the Gazette, made before December 24, 1987; in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road; an order under section 56 (2) of this Act; any other prescribed means;

Section 107 – Land Title Act Pursuant to section 107 of the Land Title Act highway is established by the land title office deposit of a subdivision, reference or explanatory plan showing a portion of the lands dealt with as “road” or “highway”.

Subdivision Plan

Section 42 – Transportation Act Section 42 (1) states that if public money is spent on a travelled road that is not already a highway, the travelled road is deemed and declared to be a highway; (Section 42 does not apply to certain roads as prescribed by regulation.)   Ultimately a highway can only be determined to be a highway pursuant to section 42 by an order of a court of law.

Section 42 has been considered in a series of court decisions which have defined how and when the section can be applied. These include: Expenditure of public funds; Evidence of travel by the public; Evidence of use by vehicles (trails used by people or horses are not included); Evidence of intent or at least acquiescence by a landowner to dedicate the highway as public; The courts have defined the width of a highway pursuant to section 42 as the travelled width or running surface and not to include cuts and fills; A declaration that a highway has been established pursuant to section 42 applies only to the original alignment of the road, not to expansions or re-alignments.

Common Law Dedication In accordance with common law, a road becomes a highway when a land owner allows the public to pass and re-pass over their land for an extended period of time to allow access to lands beyond. Public monies need not have been expended; A road corridor created by common law dedication remains a highway even if the use of the road ceases; As with s. 42 highways, a court declaration is required before a travelled way can lawfully become a public highway by way of common law dedication.

Gazette Notice Up until December 24, 1987, the predecessors to the Ministry of Transportation and Infrastructure had the ability to acquire land for highway purposes by publishing a notice in the BC Gazette; While this practice is no longer in use there are many instances where land has become a highway by virtue of publishing such a notice; For a period of time local governments also had the ability to establish road by gazette notice. Harry Badial will touch on this in his presentation.

Depiction on a Crown Grant Subsection 1(e) of the Transportation Act defines “highway” as;….in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road ; Dave Swaile will provide more colour on this during his presentation.

An Order under Section 56(2) of the Transportation Act Conversion of a Forest Service Road to a Highway:   The Crown may order that a forest service road cease to be a forest service road and become a highway. Bill Clifford will provide more colour on this during his presentation.

And Finally, by Any Other Prescribed Means For example section 121 of the Forest Act allows the minister responsible for the Act to close a forest service road and to transfer administration of that closed road to the minister responsible for the Transportation Act ; Section 102 Land Title Act can be used to dedicate titled Crown land as highway; The Crown can always create new legislation to establish a highway or to establish other methods of creating highway (by the stroke of a pen….).

Thank you Questions?