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Feature Article - August 18, 2005

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August 18, 2005

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ArchiveImage GalleryAlgonquin Land Claims

Gray MerriamLegaleseGeneral information and opinion on legal topics by Rural Legal ServicesNature Reflectionsby Jean GriffinNight Skiesby Leo Enright

The Line Fences Act and Rails to Trails

by Jeff Green

The Rails to Trails movement has been derailed in recent years by the application of Section 20 of the Line Fences Act, which requires that municipalities assume the entire cost of fencing trails along abandoned railway right of ways.

The provincial government, which supports the development of trails as part of their strategy for healthy living and rural economic development, commissioned a report by Wayne Caldwell on potential changes to Section 20 of the Line Fences Act.

Caldwell’s report, “The Line Fences Act and Abandoned Rail Right of Ways” was released at the end of March and has been making the rounds of municipal councils this summer.

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Caldwell gathered together municipal officials and representatives of the agricultural community at two meetings in early March to see if there was a way around the impasse between the two groups over the requirement to fence municipally owned abandoned rail right of ways.

The agricultural community was the group of landowners living along these properties that was consulted because two farmers from southwestern Ontario had forced the issue in the first place.

Even though the Line Fences Act is a centuries-old document, it had not been specifically applied to the Rails to Trails initiatives until a court case took place. In the case of Caiser (and others) vs. Bayfield and Tilsonburg, the Ontario Supreme Court upheld Section 20, finding that the municipalities had an obligation to construct fences when requested by a landowner

A second case, Grosvernor (and others) vs. East Luther Grand Valley, is still before the courts. In this case, the municipality has passed a bylaw to designate an abandoned right of way as a “highway”. The Line Fences Act does not require the fencing of boundaries between highways and private lands. Neighbouring landowners are contesting this bylaw on the grounds that it specifically attempts to circumvent the Line Fences Act.

While the report notes that it is strange that fencing was not required when these properties were active railways, but is required if they are to be converted into trails, it concludes that in the interest of farmers and others, fences will be required.

“While there may be arguments to the contrary, from an agricultural perspective the need for a fence adjacent to a trail may be greater than the need for a fence when it was an active railway,” the report says.

Some trail advocates, including Central Frontenac Councillor Bob Harvey, who was involved in the development of the Trans Canada Trail at Sharbot Lake, argue that municipalities should only be required to put up fences where trails are being developed adjacent to active farmland, and one of the report’s proposals would limit the requirement for fences to instances where trails abut agricultural land.

Caldwell’s report concludes that Section 20 of the Line Fences Act should remain intact. “The onus for fencing should continue to rest with the public authority,” it says.

The report includes a series of 20 options, which build from each other. Once it is established that the Section 20 of the Line Fences Act should remain in place, the rest of the options are designed to mitigate the potential costs to municipalities. They include establishing timelines for phased implementation of fencing requirements to minimise the impact on any single budget year. As well, one of options would allow for agreements between municipalities and landowners to forego the requirement for fencing where neither side sees a need.

While the report was written with a focus on the situation in south western Ontario and Grey and Bruce Counties, where there is prime agricultural land and the well-established Bruce Trail system, it cites the relationship between the Eastern Ontario Trails Alliance (EOTA) and the Hastings Federation of Agriculture as an example of a successful relationship between trail operations and farming.

EOTA has established 520 km. of multi-purpose trails that are part of a long-term ATV tourism strategy. While they have established agreements with farmers in Hastings County, a proposal to extend the EOTA trail system into North Frontenac and Addington Highlands has met with less success, over municipal concerns over the effects of ATV traffic on environmentally sensitive lands and un-maintained municipal roadways.

The K&P trail extension

Section 20 of the Line Fences Act is seen as a hindrance to plans for the extension of the K&P trail south through Frontenac County to join the Cataraqui Trail north of Kingston. The Council of Central Frontenac has recently been forced to pay over $30,000 for fencing along a section of the K&P trail that has been established for years to the north of Highway 7, and they are loathe to consider any southern extension without changes to the Line Fences Act.

Although Council received Wayne Caldwell’s report at their August meeting, they have yet to have a full discussion of its implications regarding a southern extension of the K&P trail to the border with South Frontenac.

The main focus for advocates of the K&P trail has been South Frontenac, and there are a number of complications to the South Frontenac piece that go beyond the Line Fences Act.

Portland District Councillor Bill Robinson has been an outspoken critic of the proposed extension of the K&P trail into his district.

“I am not opposed to trails,” he told the News in an interview, “but the big thing about the K&P trail is that the cost is staggering, and the taxpayers in Portland can’t afford it.”

Robinson pointed out that: two bridges have decayed along the trail; the surveying is out of date and incomplete; and some small parts of the old railway lands have been sold off.

“While I would be willing to sit down with anyone to talk about changes to the Line Fences Act, I should point out that the cost of fencing only represents about 20% of what it would cost Portland taxpayers to establish a trail,” he said.

Robinson argues that financing trails would not be done by the township as a whole, it would be left to the taxpayers in the districts involved. The K&P line does not run through Loughborough or Storrington Districts.

Councillor David Hahn, who is also a farmer living in Bedford District, takes a different view towards the K&P trail than does Bill Robinson. He sees the Line Fences Act as the major hindrance to developing the trail in South Frontenac.

“I will be disappointed if this report does not result in any changes to the line fences act. As it stands now landowners can use the provision to [place a very expensive obstacle in the way of the owner of the trail, sometimes simply in cases where the trail passes through swampland or bush land where there is no real need for fencing.”

As to the other concerns that Bill Robinson expressed, Hahn argues that many of the costs have not yet been determined, and that trails are a long term proposition, taking up to 20 years to develop.

“As to financing a trail initiative, I don’t think the costs will necessarily come to the taxpayers only in Portland or Bedford. Any money that is required would likely come from parkland reserve funds, which come from development fees and can only be used for capital recreation programs, such as trails. I don’t know how much is in the reserve for Portland, but there is $250,000 in Bedford’s reserve,” Hahn said.

Hahn is also not convinced that surveys will be needed before lands can be transferred from Bell Canada, the current owner of the lands, and he notes that there was a proposal from the Royal Military College to build a needed bridge on the trail as a part of their engineering program, at no cost to South Frontenac.

“Trails have been established in other places, in spite of obstacles. They take time, but they can be made. Why can’t that kind of thing happen in South Frontenac,” he said.

The City of Kingston is going ahead with the development of a non-motorized trail along the K&P lands within its jurisdiction. That trail will end at the South Frontenac border, about three kilometres shy of the Cataraqui Trail, which runs east-west and connects to other trail systems, including the Rideau trail.

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