Right-of-way decision in Antigonish encourages defenders of old public roads

A group in Antigonish, N.S., that fought to keep a historic right-of-way to the harbour from being sold into private hands is bringing attention to the debate about what to do when public roads are abandoned by the government. 

Mary Jo MacDonald grew up on Seabright Road, which breaks off from Highway 337 and runs toward the mouth of Antigonish harbour. 

The dirt road leads to Town Point, a peninsula near the mouth of the harbour. Part of it branches off as a private road, while the other branch continues as a public way. 

Once, people took the road to reach the harbour ferry. MacDonald said these days, most people use the road to get to the beach. But someone has been putting boulders and other obstacles in the way.

Recently, a nearby landowner put in a bid to buy the land. 

"It upset a lot of people in the community, considering that they've been barred from using it in the past, to know that someone is trying to permanently restrict access," MacDonald told CBC News before the government quashed the potential sale.

The group wrote to officials, urging them to keep the land public. They'd like to see them rebuild the road, too, so people can continue to access the harbour and beach. 

"It's basically the only sandy beach on the harbour, the only place people can access the harbour, and the closest beach to the town of Antigonish where someone could go swimming."

MacDonald said it's important historically to the Mi'kmaq and also as the path the first European settlers travelled when settling Antigonish. 

Area important to Mi'kmaq

Nova Scotia's Department of Transportation and Infrastructure Renewal is responsible for the road. No one from the department would do an interview but, after being asked about Seabright Road, a spokesperson said the sale won't happen. 

"While there was interest from a potential buyer, it was determined that this land is of abundant interest to the Mi'kmaq of Nova Scotia. The province will remain the owner of this unmaintained public highway," spokesperson Marla MacInnis said Tuesday in an email. 

She did not respond to requests for more information about what made it important to the Mi'kmaq. The nearby Paqtnkek First Nation did not respond to requests for information about that land. 

While the debate over Seabright Road in Antigonish seems resolved for now, it points to a deeper debate in Nova Scotia over historic rights-of-way on roads the province owns, but does not maintain. 

It's a familiar debate for Steve Skafte. He lives in the Annapolis Valley and has written two books about Nova Scotia's abandoned public roads. He's creating an online map showing the 120 abandoned roads he's rediscovered. 

"The maintained road and the abandoned road doesn't look any different on the map, but you can tell looking at satellite pictures that they become grown in," he said.

Skafte said Nova Scotia's road-building mania peaked in the mid-1800s, when roads were cleared to connect communities. Before, waterways had connected many communities, but the new roads catered to horse-powered transit. 

Oddly enough, it was the arrival of horseless carriages — also known as automobiles — in the 1930s and 1940s that spelled the end for many of the minor roads.

Motorists preferred to stick to the main arteries over those off the beaten track. Those preferred roads got maintained and eventually paved, while some of the old dirt roads were not maintained and left to nature. 

"The road is effectively abandoned in these cases, but not given away," he said."It's just easier to keep it as an open right-of-way. Usually people understand that."

Skafte said that's behind most disputes today. Some people use the abandoned roads to dump trash or to party, much to the consternation of people who live near them. People then put obstacles on the road to discourage use, much to the annoyance of people who use them for hiking, as ATV trails, or to access locations like the beach in Antigonish. 

Skafte got involved in such a dispute over Canaan Mountain Road, which once connected Highbury to Kentville. But Highway 101 cut it in half, orphaning part of it as a dead end.

He said it became popular with hikers, and also with people illegally dumping trash. Someone felled trees across the road and hikers have reported being harassed. 

But, legally, an abandoned public road is no different from a maintained public road, and people can no more block Canaan Mountain Road, or Seabright Road, than they could Spring Garden Road in downtown Halifax. 

"The only difference is they don't actively maintain the road," Skafte said.

A similar dispute over Little York Road in Five Islands, Colchester County, dragged on for years. 

'Ordinary history' worth preserving

For Skafte, the abandoned public roads are a pathway into a history of regular people in Nova Scotia. Some are completely overtaken by the wilderness, while others still offer a clear path for ATV users and hikers. 

"You'll find bits of history, too. Maybe old cars that never made it out, rock walls along the road, old foundations," he said.

Keen eyes spot telltale signs like oak or apple trees that must have been planted when people lived and worked along the road, or foundations of homesteads, or crumbling walls. 

"There's history on every road," he said. "You can really walk with the history underfoot. You're in these narrow ruts that haven't changed in 150 years. And it's ordinary history."

Skafte said Nova Scotians often have little understanding of these old public rights-of-way. In the UK, the right-of-way is a well-established concept and hikers often are allowed to climb fences and hike across private estates. The UK is now mapping every right-of-way and will produce a definitive list by 2027. 

Nova Scotia has nothing like that, but Skafte intends to keep documenting the province's abandoned public roads on his own. 

'They're not really that lost'

"[People] imagine that an abandoned road is something so ancient you'd need a compass to follow it. But most of these roads were abandoned between the 50s and the 70s. They're not really that lost," he said. 

"I think that's why certain property owners have thought they could slip in and take over a road because so few people were aware that the road was actually public. Not just used by the public, but owned by the public."

He thinks the province should take a more active role in protecting public roads by removing obstacles and prosecuting people who place them on public roads. 

"The best way forward is that people actually understand what the rights of the public are and push back as much as possible. It's active use that keeps these roads public."