Introduction

A British Columbia case decided in 2003 illustrates some of the legal problems caused by an old procedure used in British Columbia for creating public highways. This is the procedure known as "Gazetting". The Gazetting procedure is no longer in use. However, many highways and forest roads in British Columbia were established using this procedure and retain whatever legal status the Gazetting procedure conveyed at the time.

The case is titled as British Columbia (Attorney General) v. Perry Ridge Water Users Association. Two trial court and one appeal decision dealing with the Gazette issue as it applied to this case have been reported by the Expropriation Law Centre as: [2000] EXLAW 316 (B.C.S.C.), [2000] EXLAW 333 (B.C.S.C.) and [2003] EXLAW 315 (B.C.C.A.).

Perry Ridge dealt with the status of a Forest Service Road which the Ministry of Forests established by Gazette notice pursuant to the Forest Act. Although a Ministry field crew performed an engineering survey of the road right of way prior to the 1984 Gazetting, the Ministry did not attempt to construct the portion of the road at issue until 1997. At that time, a number of environmental protesters blocked access to the land and prevented construction. The Ministry of Forests commenced a trespass action and obtained an injunction to prevent occupation of the right of way. ln defence, some of the protesters alleged that the land occupied during the protest had not been properly established as a Forest Service Road. If that was true the land remained in private ownership and the Crown's trespass action could not succeed. The B.C. Supreme Court was therefore required to decide whether the Ministry's attempt to acquire the land by the 1984 Gazetting had been successful.

In acquiring the right of way in 1984, the Ministry relied upon Forest Act provisions which authorized the Minister to expropriate private land for Forest Service Roads. This process was very similar to the process set out in the Highway Act at that time. From the Crown's point of view, publication of the Gazette notice should have had the effect of immediately vesting a fee simple title to the road right of way in the Crown. However, several arguments were raised which called into question whether the Forest Act provisions actually achieved this. One of the issues involved a survey error. Another issue involved the wording of the Forest Act which did not clearly state the nature of the interest in land that could be acquired through the Gazetting procedure.

The trial court found that the land in question in this case was Crown land as a result of the 1984 Gazetting and the decision was upheld following an appeal.

In British Columbia there are presently several ways by which a parcel of land can take on the legal status of a public highway. This includes dedication by legal survey plan, expropriation pursuant to the Expropriation Act, R.S.B.C. 1996, c. 125, and common law dedication and acceptance. The Expropriation Act came into force in 1987. However, prior to that, where compulsory acquisition was necessary, both the Ministry of Transportation and Highways and the Minister of Forests had the option of using the "Gazetting" procedure to establish public roads. The term "Gazetting" refers to the requirement that the Crown publish a legal notice in the B.C. Gazette to give formal notice of the establishment of public highways. One of the significant difficulties with this procedure is that there was no statutory requirement that the road right of way be legally surveyed or that the right of way be noted on Land Title Office records. Unfortunately, by avoiding these steps, there is a significant opportunity for legal disputes to arise later when title to land subject to a Gazetted road comes into question. That was the situation in the Perry Ridge case.

Copies of the decisions are available from the Online Subscription Service.