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 with Rob Miskosky

Is Access Becoming More Difficult?

Access to private lands for hunting purposes has long been a contentious issue. Hunters are finding more private lands posted “No Hunting” than ever before. Yes, many landowners provide access but quite often access is denied for a variety of reasons. These reasons might include cattle being at large, the landowner may be a hunter that wishes to keep his or her lands private for his or her own hunting pursuits, concerns over a stray bullet finding an occupied dwelling, or past bad experiences with slob hunters that may have led to all hunting access being denied to others.

However, another concern that farmers, ranchers and rural landowners might have is the threat of a potential lawsuit should a hunter or other recreational user have an accident and/or injure themselves while on the landowner’s property, including lands leased from the provincial government i.e., agricultural leased land.

The Occupiers’ Liability Act is an Act that defines the responsibilities of landowners who invite or allow individuals to access their property.
If an individual, while on another’s property is injured, or their personal property is damaged, they could sue the landowner in accordance with the Act.

Section 5 of the Act states: An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

However, the Act sets apart those given permission to use private lands for recreational purposes and considers them trespassers.

Section 12 of the Act states: Subject to subsection (2) and to section 13, an occupier does not owe a duty of care to a trespasser on the occupier’s premises.

This greatly diminishes the ability of a recreational user to sue if injured or personal property is damaged, unless that injury or damage occurs “willfully” by the landowner. Said another way, if a landowner intentionally set or allowed a device to injure or damage a trespasser or his property, he could be sued for compensation.

However, the ability of a recreational user (trespasser) to sue a landowner changes decidedly when a landowner charges a fee for access to his land, or provides accommodation. It is illegal to charge a fee for hunting access and large fines can be applied under the Wildlife Act. However, it is said by some that this is an ongoing custom in Alberta where landowners are charging a fee for access. If true, these landowners open themselves up for potential lawsuit if injury or damage were to occur to an individual while on their property—they are no longer considered a trespasser by the Act.

If fees or accommodations are not provided but permission is given to an individual for recreational purposes (hunting), the person(s) is considered a trespasser and the landowner is protected by the Act provided injury or damage doesn’t occur willfully.

However, this changes again when we consider children trespassers. According to the Act, When an occupier knows or has reason to know (a) that a child trespasser is on the occupier’s premises, and (b) that the condition of, or activities on, the premises create a
danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.

This part of the Act may be enough reason for a landowner to deny access to a hunter who may be hunting with a youngster in tow. Or, at least, require a waiver to be signed by the hunter prior to access being allowed. Which may well be where we are headed in today’s world of legality. ■

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