A court case over public access to a pair of British Columbia’s lakes has died in the water after the Supreme Court of Canada refused to hear an appeal.
The small fishing club near Merritt that initiated the lawsuit is now considering its future.
The Nicola Valley Fish and Game Club had sought the opinion of the highest court in the land after the British Columbia Court of Appeal ruled earlier this year that US billionaire Stan Kroenke, owner of Douglas Lake Cattle Company ( DLCC), Canada’s largest ranch, may prevent the public from crossing its property to fish on Stoney and Minnie Lakes, even though the lakes are owned by the Crown.
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The Supreme Court of Canada refused to hear an appeal, leaving the club with no further recourse in the matter.
The club is now considering whether it will pursue a separate lake access case and whether it will even continue to exist when faced with the obligation to pay the legal costs of appealing the livestock company, such as the ‘ordered the provincial decision.
The club is also suing the DLCC, Corbett Lake Lodge and the province for allegedly blocking public access to Corbett Lake via the Okanagan Connector road right-of-way that extends into part of the lake.
Club member Rick McGowan told Kamloops This Week a meeting is scheduled for Wednesday (October 13) to decide whether to drop the case.
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McGowan said given the rulings from the provincial appeals court, he was not sure it would be worth pursuing a similar case related to access to Corbett Lake. He said the club will also discuss, during the meeting, their options regarding DLCC legal fees, which they have no plans to pay. McGowan said the club will either have to file for bankruptcy or form a new club under a new name.
“We certainly can’t afford these big bills coming in at us and we don’t want to fundraise for them,” McGowan said, noting that the club has already received a bill for $ 44,000. “We’re a non-profit club, so we don’t have a lot of money. “
Kroenke is the owner of the NHL Colorado Avalanche, NFL Los Angeles Rams and English Premier League Arsenal. Married to a descendant of the Walmart family, Ann Walton, Kroenke is a real estate developer who also owns large ranches in the United States.
Forbes magazine estimates its value at $ 8.5 billion.
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The club has held raffles and raised over $ 200,000 for its own legal fees over the years, McGowan said, adding that there was “no desire” to do the same to pay lawyers. of the cattle ranching business. He said the club may also be billed to pay the province’s legal fees in the matter.
McGowan said it was disappointing that the Supreme Court of Canada did not hear the appeal.
“It’s a tough pill to swallow and basically the people of British Columbia just got run over and the government just doesn’t seem to care,” he said.
Since BC government laws do not protect the public’s right to move on private land to access public lakes and waterways, the BC Court of Appeal overturned parts of the 2018 ruling by BC Supreme Court Justice Joel Groves accepting a narrow argument from Kroenke’s lawyers that an old Crown-owned railroad route that Groves said should allow anglers to access the line does not quite reach the edge of Stoney or Minnie lakes.
“The public road in question does not reach the natural limit of one or the other of the lakes, as defined by survey. The Trespass Law authorizes the DLCC to prohibit the public from crossing its property, including its land underwater, ”reads a summary of the appeal decision.
Club lawyer Chris Harvey called the dismissed Supreme Court of Canada hearing a “totally unsatisfactory situation” and noted that the court does not give reasons for dismissing a case.
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Harvey told Kamloops This Week that the club had gone to the highest court to appeal part of the B.C. Court of Appeal ruling that said if a lake bed belonged to to a private owner, anyone floating above public water always entered it.
Previously, Harvey said, the public had the right to travel on water no matter who owned the lake bed below and now this “very strange decision regarding water intrusion” will stand until so that it can be overturned by the courts.
“The club has succeeded in establishing public road access to Stony Lake, but now, according to the court of appeal judgment, you can access the lake, but you cannot put your boat in or enter the lake.” , did he declare. .
Harvey said he believed the Supreme Court of Canada would have overturned the ruling had it agreed to hear the club’s appeal.
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Harvey said the precedent set by the British Columbia Court of Appeal would extend to all dam-enlarged lakes in British Columbia, which he said could be plentiful.
McGowan described the final decision regarding Minnie and Stoney as “pretty serious.”
“Now a landowner, by acquiring a provincial water license, can flood their own private lands, thus blocking public access to the public lake for the rest of the time and they essentially get public lands or lakes for free and have them. British Columbians will be stranded. forever, ”McGowan said.
Harvey said Corbett Lake has also been dammed and extended to the point where private land is now underwater, noting that if the case were to go ahead it would essentially come down to a conflict between land law , requiring public access to a lake, and trespassing law.
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“So this is either another case where you have public access to the lake, but you cannot use the lake, or the court will decide that the land law prevails and the public has access to the lake regardless of the owner. from the bottom, ”Harvey says.
McGowan said the club’s intention in launching the Minnie and Stoney Lakes case in 2013 was to get the provincial government to come to the table and stop the privatization of public spaces.
“Clearly the government doesn’t want to do this,” he said, “so I guess we are fighting a losing battle.”
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