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Highway Gazetting in British Columbia
J. Bruce Melville

A case decided in 2003 illustrates some of the legal problems caused by an old procedure that was used in British Columbia for creating public highways. This procedure is known as "Gazetting". The term is derived from the British Columbia Gazette, the name of a government publication used to provide formal legal notice of certain actions taken pursuant to various provincial statutes. The Gazetting procedure has not been used for public highways since 1987. However, many highways and forest roads in British Columbia were established using this procedure when land was acquired and these parcels retain the legal status the Gazetting procedure conveyed at the time of acquisition.

The case is titled as British Columbia (Attorney General) v. Perry Ridge Water Users Association. Decisions in this case dealing with the Gazette issue include two trial court decisions released in 2000 and one appeal decision released in 2003. These decisions have been published by ExLaw and are cited as follows: [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 had attempted to establish in 1984 by publication of a Gazette notice as required by the Forest Act. Although a Ministry field crew had performed an engineering survey of the road right of way prior to publication of the Gazette notice, 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. As a 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 publication of the Gazette notice in 1984 had been successful.

When the Ministry attempted to acquire 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 arguments involved a surveying error. Another argument involved the wording of the Forest Act which did not clearly state the nature of the legal 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 this decision was upheld on appeal.

In British Columbia there are several ways by which a parcel of land can take on the legal status of a public highway. Since 1987 this includes dedication by legal survey plan, expropriation pursuant to the procedure set out in the Expropriation Act, R.S.B.C. 1996, c. 125, and common law dedication and acceptance. The Expropriation Act came into force in 1987 at the same time as the Gazetting procedure was repealed. However, prior to this change 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. One of the significant difficulties with the Gazetting procedure is that there was no statutory requirement that the road right of way be legally surveyed. Another is that there was no requirement for land so acquired to be recorded in the Land Title Office. Unfortunately, by avoiding these steps, there was 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 cited are available from the ExLaw Online Subscription Service.

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