BRIEF: TOWARD RESPECTING THE ESTABLISHED CLOTHING-OPTIONAL TRADITION AT BEACONIA BEACH THROUGH DESIGNATION AND SIGNAGE Presented to: The Rural Municipality of St. Clement’s Council Meeting October 13, 1998 Presented by: Ivan Pokus Manitoba Naturist Association Phone:(204)256-3626 BRIEF: October 13, 1998 9:15.A.M. Honourable Reeve Ken Thomas, Members of the Rural Municipality of St Clements’ Council and Ladies and Gentlemen of the Audience: Thank you for allowing me to appear before you today. I am here with regard to the controversy which has arisen recently over the usage of the traditional clothing-optional part of Beaconia Beach. I represent the Manitoba Naturist Association (MNA) which is affiliated with The Federation of Canadian Naturists (FCN). We are linked to the International Naturist Federation (INF), with membershipof over half a million naturists from around the world, with The Naturist Society (TNS) and The Naturist Action Committee (NAC) who lobby for 35 000 naturists’ rights across North America. You have received a package of materials containing information which I designed to assist you in better understanding naturism (nudism) as well as how other communities manage clothing-optional beaches. The package contains, as well, a letter of support from the Federation of Canadian Naturists (FCN). We naturists are ordinary law-abiding, tax-paying citizens with the same rights and responsibilities as any other citizens, except that we also enjoy relaxing in the most natural way by swimming and sunbathing in the nude. We respect ourselves and others. We are environmentally responsible people who care about our beaches and the environment in general. We care about Beaconia Beach, for example, particularly about protection of the piping plover which is on the endangered species list and lays eggs among the pebbles on the beach making them particularly vulnerable. Some nudists have taken the trouble to protect these nest sites by marking and fencing them. According to the FCN, the purpose of naturism, is “to promote wholesomeness of the human body and mind”. Naturism is founded on family participation. Children in naturist families learn to appreciate the body as part of their natural environment ... without fear or shame of their own or others’ bodies. The Federation of Canadian Naturists regularly reminds its members concerning proper and considerate beach behaviour. This has been done successfully in places as far apart as the Wreck Beach in Vancouver B.C., and Crystal Crescent Beach near Halifax, Nova Scotia. Some beaches distribute a code of etiquette to hundreds of thousands of visitors per year. I am before you today, because Manitoba nudists and tourists, who for over 50 years (the first club started in 1948 and we still have a living member of that club) have enjoyed the quiet peace of nude sunbathing on this traditionally clothing-optional beach. We are very disturbed by the recent confrontations at Beaconia Beach. We feel these confrontations are threatening our peaceful enjoyment of nature. Naturists by their very lifestyle are not confrontational, but they are now in fear of being harassed by over zealous fellow citizens who fear social nudity even in designated areas. This is of serious concern to us locally and to fellow naturists literally around the world. To us naturists, each human body is beautiful and nothing to be ashamed of. For us it is difficult to see anything offensive about enjoying nude sunbathing on the beach or swimming. We naturists find it very difficult to understand why other people see human body as shameful. For example what parent, while bathing or changing a child would think of his child as shameful or immoral while nude? Likewise adult children who care for their elderly parents and see their nude bodies would be ashamed of the persons who raised and nurtured them? On the other hand, we naturists accept the reality, that some people see human body as shameful or embarrassing and we must respect their preference for covering the human body. We also understand that these people are objecting to seeing nude people at places not designated for clothing-optional use, such as the parking lot, in the case of Beaconia Beach specifically. Unfortunately the Manitoba Naturist Association has been unaware that this was happening. It is our understanding that this Council is considering the leasing of Beaconia Beach and passing a by-law which would prohibit nude sunbathing at the beach. This would prohibit one group from enjoying Crown Land, as nature intended, and it could put us into a situation where we would have no choice, but to seek a legal challenge to such a by-law. I would like to respectfully submit, that such a plan could result in several problems, such as frivolous lawsuits, enforcement problems, wasting of taxpayers’ monies and would not, in the end, solve the problem. Having said this, I would like to emphasize that this is not our preferred way. We would like to see a win-win compromise requiring minimal governance for the Rural Municipality. Our FCN Government Affairs and Public Relations Director, Judy Williams, discussed with the Crown Counsel and the RCMP this summer a number of management suggestions which could alleviate the problems for everyone. It includes designation and signage of specific section of the beach for clothing-optional usage. (Please see the handouts in your packages). But before I talk about our proposal, let me point out at least some of the points that could complicate the implementation of the plan requested by petitioners who initiated this action: 1./ According of the Crown Lands Act, there is reserved to the Crown “to the shores of any navigable water a strip of land one and one-half chains in width” (that is 30 metres or 99 feet). This means that Canadian beaches are considered to be on Crown Land. The policy of Crown Land administration clearly states, that no crown land can be leased for so called “non use leasing”. So it cannot be leased for purposes such as bird watching, cross country skiing, sunbathing (nude or clothed), because that would exclude other legitimate users. (But for example some part of the beach could be leased to build a harbour.) 2./ The Municipal Act gives to the council the power to pass by-laws respecting the activities on places open to the public, but not just any by-law. 3./ According to the best legal information available to us, a section of a by-law regulating provisions which are clearly within the domain of criminal law would be declared invalid if challenged in court. Simply put, a municipality cannot pass a by-law the aim of which is to punish people from appearing nude in public. 4./ The nude sunbathing is a matter within the domain of the Canadian Criminal Code. We wish to emphasize the fact, that the Canadian Criminal Code, section 174 which deals with nudity states very clearly, that it is not aimed at nude swimming and sunbathing at an isolated beach. So clearly the nude sunbathing is in the domain of criminal law and that is the reason, why only the Attorney General and nobody else, (not even a municipality) can lay charges. This is clearly stated in the Annotations to section 174. It is also obvious from the case law from B.C., where owners of 35 properties within the Brunswick Beach brought a court application against nude sunbathers. I am including the newspaper reports and the Judgement of the case, because of the similarity with Beaconia Beach situation. Several other cases exist to support this point. 5./ The traditional clothing-optional part of Beaconia Beach, being separated from public access by the marshy Beaconia Lake and being accessible only by walking on the beach, or traversing the causeway now wilfully damaged by the Rural Municipality is very likely to be considered by the Courts as an isolated beach. Consideration may be given to the community standard and in the case of Beaconia Beach, the community standard seems to have been established by the fact that over the time of some 50 years there was no successful prosecution for nude sunbathing on the beach. 6./ Even if the municipality is successful in implementing the bylaw, (as it may unlikely be), enforcement of such a by-law can prove to be very costly and very difficult, especially in cases of lawful activity like nude sunbathing. Also, the municipality would have to be prepared to go through the same process should naturists decide to move to another beach somewhere else in the municipality (for example to places close to Island Beach or Balsam Bay). We realize, that different people see nude sunbathing differently. And we are sympathetic with the people who are using the traditionally clothed north-east end of Beaconia Beach. They should not have to encounter nude people at all and even more so unexpectedly. A special consideration should be given to the children. One would hope, that considering the number of drownings in Manitoba lakes and other related dangers, there should be no children without supervision by reliable adults present on any beach, clothed or clothing-optional. This is even more so now, when warning signs are replacing life guards everywhere. The Manitoba Naturist Association is proposing a solution that could minimize, if not totally eliminate the problems: We are appealing to the RM of St. Clement Council, to seriously consider officially designating the traditionally clothing-optional area of Beaconia Beach for continued clothing-optional usage. Such a beach excludes no one, it could benefit the local economy and could continue to help protect the environmental integrity of the beach. This could be reasonably done by the posting of signs such as those recommended in recreational specialist George Harker’s book on managing nude beaches (it is included in the package of information that you have received, see Appendix J and Appendix L of the Management Guide). Sample wording could include the following: The sign on one side would read: ATTENTION, BEYOND THIS SIGN YOU MAY ENCOUNTER NUDE SUNBATHERS. On the other side of the sign it would read: ATTENTION, YOU ARE LEAVING THE CLOTHING OPTIONAL PART OF THE BEACH, ALL VISITORS MUST BE ADEQUATELY CLOTHED BEYOND THIS POINT. If needed an optical barrier made of rocks or wood could be built to separate the two parts of the beach. Honourable Reeve and Members of the Council. We are appealing to you, to your seriously consider our proposal. Please, use your good judgement and prevent the spending of tax dollars on frivolous lawsuits and on enforcement. Our proposal is in accordance with the present legal thinking, which suggests: BY-LAWS COULD BE CREATED THAT WOULD ALLOW CERTAIN AREAS TO BE USED WHERE DRESS STANDARDS MIGHT BE RELAXED, “ZONES OF TOLERANCE” AND THIS COULD BE MADE CLEAR TO THE PUBLIC SO THAT NO ONE WHO DID NOT WISH TO CONFRONT THIS ACTIVITY OR HAVE THEIR CHILDREN EXPOSED TO IT, WOULD NEED TO ENTER THESE ZONES. If some citizens are convinced that the Canadian Criminal Code is wrong, rather than pushing the Municipality to spend taxpayers money on a legal battle, then perhaps they should consider personally challenging, in court, the part of the Canadian Criminal Code with which they disagree. It seems a simpler solution could be easily found with a minimum of effort or expense, provided there is a mutual respect, tolerance and willingness to resolve this matter. THANK YOU