Ucluelet’s plans to extend the Wild Pacific Trail through an inner basin of Spring Cove have come to a halt after a B.C. Supreme Court Judge ruled in favour of two residents who had challenged the district’s claim to a statutory right of way through the area.
“We were obviously pleased with the eventual outcome. It was a four-year, ongoing, stressful dispute,” Laurie Skene, who filed the petition along with Brent Skene, told the Westerly News. “We had contended from the beginning that the right of way was flawed and the district didn’t see it that way; clearly, in the end, the judge did.”
In 2016, the district announced it had received a $75,000 grant as part of a $120,000 project to connect the He-Tin-Kis Park and Big Beach sections of the Wild Pacific Trail with a new trail network that would lead users through an inlet foreshore of Spring Cove and then along Peninsula Road to Little Beach and Marine Drive.
The Peninsula Road phase of the project is underway and the Marine Drive section is nearly complete, but the Spring Cove section was held up while the legal proceeding played out and now appears cancelled by the verdict.
“I can say that we’re all disappointed because we do feel that, for the greater good of the community, having an inner trail established on those properties would benefit the region,” Ucluelet Mayor Mayco Noel told the Westerly News.
“This council has got a very busy and aggressive strategic plan that we wish to follow. Yes, this is a hiccup and all the power to the Skenes, they have every opportunity to do this. I always wish that in any kind of amendment we’re trying to create, everybody supports it; it was just unfortunate that this was something they didn’t want to see in their backyard.”
With the right of way the district was planning to build on declared invalid, Noel said the district is no longer pursuing that portion of the trail and that the town’s council plans to issue a public statement on the matter in the coming days.
“We haven’t, as a council, gone through the next steps, but I can say that we are saying, ‘OK, we lost and we just move on,’” he said. “It’s dead in the water at this point…The conversation is dead right now, I think, for us as a group, other than coming out with a public statement. We are going to come up with a public statement with some answers for the public because, I think, I do speak for a lot of people that, if there was an ability to put a trail in there, that would have been a real direct benefit for everybody.”
In her ruling, the Honourable Madam Justice Jackson laid out that the right of way was first incepted in 1998 as part of a development permit application from Seabridge Construction Limited, which planned to develop the Reef Point Adventure Station on lands it owned.
In April 1998, Ucluelet’s municipal council approved the permit, which included a condition that the developer complete a path and that a statutory right of way would be registered to ensure public access to that path.
“The District’s copy of the 1998 Permit is unsigned and no boardwalk/path plan is attached. There is no evidence the referenced “boardwalk/path plan” was ever prepared or attached to the 1998 Permit,” Jackson wrote in her ruling.
Facing financial struggles in 2000, Seabridge abandoned its plans for the Adventure Station and no path was ever built. The company dissolved in 2005 and its lands around Reef Point were sold to multiple purchasers, including the Skenes who purchased their property in 2013.
They began questioning the district’s claim to a right of way in front of theirs and several other properties when they heard of the potential trail project in 2015 and were unable to find any concrete information around the path’s specific location or design.
While Seabridge had dissolved before building the promised path, Noel said council “were made aware” of the right of way about five years ago and saw it as an opportunity to expand Ucluelet’s trail network by building a path as a public project.
“There’s no disputing how important the trail systems are to the area, so it was just another opportunity to establish a future trail,” he said.
Skene said she did not believe the district was proactive in letting the community know about the plans and noted a clear location and design for the path was never presented.
In her summation, Jackson refuted an argument presented by the district that anyone purchasing property at Reef Point should have known a path would be constructed through the area.
“First, there is no certainty about where a successor in title could search to find that information,” she wrote. “The District referred to a promotional pamphlet used by Seabridge to market the Reef Point Adventure Station. However, that document is, at best, vague and imprecise. A boardwalk is depicted, but not described with any specificity. Further, the boardwalk depicted in that pamphlet was a fiction. There is no information about when that marketing material was prepared in relation to the SROW [Statutory Right of Way], and the evidence demonstrates the concept of the Reef Point Adventure Station underwent various changes over time.”
The district also argued that declaring the right of way invalid would lead to Ucluelet losing the benefit of its agreement with Seabridge and stressed that the trail would be a benefit to the general public.
“With respect to the District’s first argument, I have found the very nature of the quid pro quo between Seabridge and the District to be uncertain, and the SROW consequently invalid. Because of that uncertainty, no binding bargain was ever formed. The District is at least partially responsible for the fact that what it intended to receive was not properly recorded. Its loss of rights is the product of the uncertainty it permitted. Saving the District from the consequences of its own actions, and inactions, is not a basis upon which I am prepared to exercise my discretion to refuse cancellation of the SROW,” Jackson wrote. “Further, I am of the view that the public nature of the SROW is not a relevant factor for consideration.”
Skene said she was frustrated to see the district spending money on the project while the right of way issue remained unresolved as well as the consequential legal fees associated with pursuing its plan.
“It cost us in the neighbourhood of $30,000 to fight this. Just to keep it in perspective. So, if it cost us that much, I’m sure it cost the district the same, which is taxpayer money,” she said. “We made multiple efforts to try to be reasonable with them. We invited them out here to look at the problems numerous times and to no avail. So, it was disappointing that there was no way of reaching an out of court settlement, but there just wasn’t.”
Skene has consistently cited environmental concerns as the key reason for her opposition to the path project and said she is relieved the area will remain relatively pristine.
“Environmentally, a lot of people should be relieved because it’s not just for those people who live around here, but it is, as I said to you years ago, a veritable nursery,” she said, adding the area is an important habitat for shorebirds and other wildlife. “It’s very environmentally sensitive…The idea that we can put up some signs and people won’t touch things or remove things is naïve.”
Noel said he was surprised that Jackson found the district’s argument that the path was for the greater good of the community to be irrelevant.
“Obviously she hasn’t been here before,” he said. “I don’t think there are too many communities that you know of or that I know of that actually have trails that are on the waterfront. Traditionally, waterfront homes have no trails in front of them and, I think, anybody that uses the Wild Pacific Trail will understand the importance of the trail systems that we have. Establishing future opportunities for that trail system is what we are doing.”