Area development procedures

[Scott]

I tought I'd start a discussion on what the proper course of action would be for accessing small walls and/or boulders on private property for the purpose of bouldering or even large cliffs for roped climbing for that matter. Let's say the area has never been climbed, and it is unknown who the landowners are.

I guess the question is should the landowners be tracked down to try and obtain permission to access the area (running the risk of being told no) or to access the area without talking to the owners, essentially tresspassing?

To look at it from the landowner's point of view why the hell would I let somebody climb on my property if there is a possibility that I could be sued by a climber or climbers family in the case of injury or death? N.S. has CNS which is like a governing body who could (if they wanted to) consult and pay for a lawyer to look into the situation, which I would assume could be a blanket statement about what is necessary, if anything (ie waivers signage etc..) for accessing such areas, but what happens here in N.B.? I would think that most landowners wouldn't want to absorb any cost of consulting their own lawyer rather than just saying no stay off my property. So where does that leave us? go to the landowners and pretend like I know what I'm talking about when I say "because we are climbers we know the risks" and therefore they cannot be sued (which is probably very open for interpretation), or should I as the person discovering said area be incurring the cost of consulting a lawyer?

I think contacting the owners is the correct way to approach it but without hard facts about what should and/or shouldn't be done by the owners to protect themselves it would be hard to convince someone to grant access. I'm going under the assumption that the liability issue would be the biggest hurdle. If you were driving down the road one day and discovered Terrance Bay or Grover or whatever how would you handle the situation? in NB specificaly but even in NS. Those who have done this before, how did you handle it and would you do it differently?

[neophyte]

When pursuing outdoor activities in areas that sometimes infringed on the boundaries of private land, my approach has been to make a reasonable and on-going effort to contact and gain access permission.
Until you are able to do so, limit your impact to non-invasive clean-up and route/trail work. "Leave no trace" as much as possible. Do not publically advertise or promote use of the area unless you have landowner permission.
I'm no lawyer but I believe there is no liability for the landowner if you kill yourself on his land unless he personally has constructed or requested to be constructed any structure, modification of existing natural feature, etc, at the location and is promoting the activity in which you were engaged and/or exploiting it for personal gain.
QED...were you to get permission to hunt on private land and get shot by another hunter who was also granted permission to hunt by same landowner, there is no liability incurred by said landowner. However, if said landowner were operating a commercial pheasant shoot and allowed other hunters into adjacent area that puts them at risk from his commercial operation, and they get shot, then his ass is grass!

[Scott]

neophyte, I agree with what you're saying. I'm fairly new to this whole game so perhaps I just don't have all the facts, but in my opinion it would seem to be benificial for there to be some information within the climbing community which could be presented to the landowner to put them at ease when someone was to approach them asking for access. That's why I mentioned NS having CNS, if I were the landowner I would be more apt to allow access if someone was to show up at my door representing a body such as CNS with a proffesional looking and sounding presentation as opposed to some dude asking if he and a bunch of his friends can climb some boulders.

I guess I'm playing devils advocate to an extent, seeing how people are handling similar situations now and possibly how it could be handled to bennefit and be easier on all parties involved in future developments. Any other thoughts?

[Fred]

I totaly agree that it would be nice to have the lowdown on the 'liability-landowner' issue once and for all. I'm know by most to seek the truth and details to the bitter end and untill that happens assume all other comments are false. So having a report of some sort from a legal expert is a great idea to solve the what? who? how? liable? questions.

Now who's going to pay for it? LOL

[Scott]

Not to flog the dead horse here but NS does have CNS. Am I correct in saying that NB's largest climbing organization would be UNB R&I? whether it is or isn't would it be possible to get an interpretation from a law professor? Just thinking that perhaps there is a connection there where the interp could be free or at a reduced rate. I suppose it boils down to whether UNB and the R&I club want to get into the access debate. I would dare say that the laws pertaining to this in NB are different from those in NS but would they be close enough for both provinces to use the same info? if so would the cost then be able to be shared? but again with whom in NB?

[The Teth]

Neophyte is probably right, but you should research the relevant New Brunswick laws to be sure how it works. In Nova Scotia the landowners liability is covered by the Occupiers’ Liability Act ( http://www.gov.ns.ca/legi/legc/statutes/occupier.htm ). Sections to take note of are 4(3)(d), 5(1), and 6(3)(b). This agrees with Neophyte’s take on it, but I am not sure what the laws are in NB.

The issue of whether or not to contact the landowner is sometimes a tricky one. If the cliff or boulder is in someone’s back yard, then it is fairly obvious, but if it is undeveloped woodland and there is no sign of landowner activity it becomes a little fuzzy. The Skapper is on private land, but we do not have an accurate enough location reference to know which of four parcels it is located on. (The cheep GPS units are not accurate enough). Sometimes it is best to be proactive, and other times it is best to leave be unless there are complaints (reactionary method). In some cases the reality is that it is more important to be on good terms with the locals than the landowner (Dover Island) since the landowner may live elsewhere (Germany or the US). The reactionary method works well in Nova Scotia since they have an organization to complain to. This was the method used for the Terrence Bay Woods area. It is just that now this area is going from undeveloped woodland to someone’s back yard. Landowners are usually amenable as long as there is someone to listen to their complaints and they feel that something will be done if they have any concerns.

The hardest part sometimes is tracking down the landowners. In the case of the Terrence Bay Woods the landowners have talked to several climbers, yet I still do not know how to contact them. I may have to wait until spring when they start building their house and go talk to them at the construction site.

Teth

[Fred]

I'm no expert on personal handheld GPS but it's my understanding that if you have the patience to sit at one location for a long period of time and take the average of all the coordinate points read, the average should be quite close, with a small percentage chance of being way off. Meaning, there is a small percent chance that all of the data points are outliers or something like that.

Remember, the US Military GPS pseudocode is no longer scrambled these days which means your accuracy is only as good as your device but at least the reading is "TRUE".

I suggested this to a friend once when his neighboor decided to mark out their boundary line on a 100 acre lot using a compas. Turns out he was about 5-10 degrees off in his favor. Very illegal. So before hirring a surveyor I suggested he use the GPS method to prove to himself that he was in the 'right'. For legal reasons you would certainly have to have something more accurate like differential GPS. I'll explain more on this in lesson II. LOL. Mat B knows more about this stuff. Perhaps he can enlighten us.

[Guest]

so where is this area then scott??

[mathieu]

Fred is right in using a GPS to just check a position but don't expect to be totally right. Most of these land parcel were defined a 100 years ago so a coordinate taken with a GPS VS where the actual boundary is located is sorta like comparing oranges and elephants. Not much sense in doing it.

As surveyors only provide their opinion on where the boundary lies, sometimes its obvious (old cut line that starts at survey pin and ends at survey pin ) and sometime its fuzzy (like an old description from the 1800's that sounds something like "follow brook to large oak tree and turn to an azimuth of 176 degrees 34 minute and 15 seconds for a distance of 3 chains" ). Maybe just take a walk around the climbing area and try to find those easy boundaries. This is probably the equivalent in finding a shovel in a canola field, you may stumble on it within 10 sec or you may walk around in circles for 4 hours.If you find a property line just talk to all surrounding land owners and ask whose property line is the one you just found close to those boulders or cliff. Note of Caution, they will probably all say its their property line.

Also knowing the hierchy of evidence when defining a boundary is helpful. Another reason that you can't use your GPS to get a position of a property boundary is because there is nowhere in the world that uses coordinates to define boundaries. So in NS or NB for example you will not find in any legal documents (such as property descriptions in the Land Titles office or Registry office) that will describe said parcel by a set of coordinates. The hiarchy is such as the law gives weight to

1. Natural Monuments
2. Evidence of occupation
3. Survey monuments (maybe this one is #2 not sure)
4. Coordinates

SO you see that the law gives little weight for GPS coordinates (or boundaries derived from coordinates).

I don't know what I'm getting at with this but I know that property descriptions are a matter of public records so you can maybe go to your local county registry and find out who owns the parcel of land. WARNING this is very time consumming and complicated. It will also cost you 15$ a half day and will likely take you a day or two just to understand WTF is going on.

Checking http://www.snb.ca/e/1000/1008e.asp#1 I noticed that you can get confirmation of the location of a boundary as a low cost solution to boundary dispute but being a group of people that don't own adjacent land and just want to see who's land we are tresspassing on, I don't think this service would do climbers any good.

I probably confused more people that I enlightned. SPecific questions are usually more easy to answer than general rambles.
Till next class

Mathieu

[The Mitt]

I think you have come to a very grey area. I have been involved with access issues here in NS for a few years and every case was different. What I usually do is try and find out who the owner is, if its crown then there is not much of an issue unless its protected. With private land in a undeveloped area I would suggest that its best to ask for forgivness than permission, just be very careful with how you develop the land (ie don't cut trees). To ask for permission is difficult because no lawyer is going to tell a land owner that they have no liability and that its OK for climbers to use the land. There are several reasons for this including squaters rights, and right of way. I spoke with a lawyer on these subjects when it looked like we may loose first face.

CNS has over the years been active with access but in a reactive way. We wait for a problem to arise before dealing with it. My personal opinion on this is that although it has worked in the past its not the best solution. I would like to see an organization representating NS or even atlantic Canada that is proactive and has some money in the bank to deal with problems before they arise, buying land and hiring lawyers. This is not a slam on CNS just an opinion.


Mitt (AKA Sean K)

[The Teth]

I agree whole heartedly with the Mit. Wouldn’t it be great if there was an organization with lots of money and directors who had lots of free time to deal with access issues. But until our wishes are answered I will struggle on with CNS to do the best I can with a limited budget and a board of people so busy that they are hard pressed to make time to attend meetings once a month. I keep hoping one of my board members will win the lottery so that they can put more time into CNS and spend less time trying to put food on the table.

The Teth

[heroicjake]

Not to bring up an old subject, but couldn't help but notice this little discussion. Just a note on the GPS, I have been working in the land surveying buisness for a few years now, and handheld GPS is only good for within about 10 meters, maybe 6 on a good day. (you are never guarenteed to be very accurate with any hand held, and even with some commercial enigneering and surveying systems you can always run into trouble with accuracy, and they cost over 40 grand) It all depends on the technology behind your system, and whether it also uses the coast guard beacon to determine location as well. As long as you have coordinates, the SNB land parcel registry system (aka PLANET yes lame name blame the government)) on the SNB website (costs money. i have access to the site via work and home here, if you want places looked up I can do it for you) allows you to find where a point is, and who owns the parcel of land that that point is in. that should solve your problem of finding out who owns the land.