In the regular council meeting on March 26, 2012, Mayor Milne advised that in the opinion of district legal counsel, upper Harbourview Road is not a public road. He did not elaborate on the reasons for that opinion.
When asked in later communication how public accounts from the BC Forest Service detailing public money spent on the road every year from 1950 to 1978, and BC Archives documents detailing the public use of the road to access Sooke Mountain Provincial Park could be explained away, he stated that he would not disclose the reasons because that would compromise the district’s position if challenged in court.
With the greatest respect to Mayor Milne, here is what the Transportation Act has to say about it:
Travelled roads becoming highways
42 (1) Subject to subsection (2), if public money is spent on a travelled road that is not a highway, the travelled road is deemed and declared to be a highway.
What does the Transportation Act say a “highway” is?
“Highway” means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following: …
(b) a public expenditure to which section 42 applies;
The logical way to settle the matter would be to publicly disclose solid reasoning supporting the position that the road is not public. The notion that some top secret legal advice can somehow compromise the district’s position is patently silly — since the first thing the district has to do in court is to publicly state its reasons for its position.
If the legal case supporting the opinion that Harbourview Road is not a public road is so weak it can be compromised by disclosure of the reasons for the opinion, it seems to me that the district should not be defending the Capital Regional District’s position for it. If the case is strong, then the district should disclose it and settle the matter out of court.
It is extremely disappointing that this administration seems determined to waste taxpayer’s money to defend the CRD’s position on this issue.