Fish and game club ponders future after failing to convince high court to hear appeal

'It's a tough pill to swallow'

A court case over public access to a pair of B.C. lakes is dead in the water after the Supreme Court of Canada refused to hear an appeal, and now the small fishing club near Merritt that launched the legal action is considering its future.

The Nicola Valley Fish and Game Club had sought the country’s highest court’s opinion after the B.C. Appeal Court ruled earlier this year that U.S. billionaire Stan Kroenke, owner of Douglas Lake Cattle Company (DLCC), Canada’s largest ranch, can block the public from crossing his property to fish on Stoney and Minnie lakes, even though the lakes are Crown property.

The Supreme Court of Canada has declined to hear an appeal, leaving the club with no other recourse in the matter.

The club is now considering whether it will proceed with a separate lake access case and whether it will even continue to exist in the face of having to pay the cattle company’s appeal legal costs as ordered by 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 highway right-of-way of the Okanagan Connector that extends into a portion of the lake.

Club member Rick McGowan said a meeting is planned for Wednesday to decide whether to drop that case.

McGowan said given the rulings made by the provincial court of appeal, he’s not sure it would be worth pursuing a similar case related to access to Corbett Lake. He said the club will also be discussing, at the meeting, its options regarding the DLCC’s legal fees, which it has no intention of paying. McGowan said the club will either have to declare bankruptcy or form a new club under a new name.

“We certainly can’t afford these big bills that are coming our way and don’t want to fundraise for them,” McGowan said, noting the club has already received a bill of $44,000. “We’re a non-profit club, so we don’t have big amounts of money.”

Kroenke is owner of the NHL’s Colorado Avalanche, the NFL’s Los Angeles Rams and English Premier League’s Arsenal. Married to a scion of the Walmart family, Ann Walton, Kroenke is a land developer who also owns large ranches in the U.S.

Forbes Magazine estimates his worth at US$8.5 billion

The club held raffles and raised more than $200,000 for its own legal fees over the years, McGowan said, adding there’s “no appetite” to do the same to pay for the cattle company’s lawyers. He said the club could also be sent a bill to pay the province’s legal fees in the matter.

McGowan said it was disappointing the Supreme Court of Canada won’t 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 give a darn,” he said.

Because B.C. government laws fail to protect the public’s right to travel on private land to get to publicly owned lakes and streams, the B.C. Appeal Court overruled portions of B.C. Supreme Court Justice Joel Groves’ 2018 decision, accepting a narrow argument by Kroenke’s lawyers that an old Crown-owned wagon road that Groves said should provide anglers access does not quite reach the edge of Stoney or Minnie lakes.

“The public road at issue does not reach the natural boundary of either lake, as defined by survey. The Trespass Act permits DLCC to prohibit the public from crossing its property, including its land under water,” a summary of the appeal decision reads.

The club’s lawyer, Chris Harvey, described the rejected Supreme Court of Canada hearing as “a totally unsatisfactory situation” and noted the court does not give reasons for rejecting a case.

Harvey said the club went to the highest court to appeal a portion of the B.C. Appeal Court ruling that stated if a lake bed is privately owned, anyone floating above it on public water is still trespassing.

Previously, Harvey said, the public had the right to travel over water regardless of who owned the lakebed underneath and now this “very strange ruling about trespassing on water” will stand until it can be reversed by the courts.

“The club succeeded in establishing public road access to Stony Lake, but now, according to the court of appeal judgement, you can access the lake, but you can’t put your boat in the lake or you’re trespassing,” he said.

Harvey said he felt the Supreme Court of Canada would have overturned that ruling had it agreed to hear the club’s appeal.

Harvey said the precedent set by the B.C. Appeal Court would extend to all lakes expanded by dams in B.C., which he believes could be many.

McGowan described the final decision over Minnie and Stoney as “pretty serious.”

“Now a landowner, through acquiring a provincial water licence, can flood his own private land, therefore blocking public access to the public lake for the rest of time and they basically get public land or lakes for free and the people of B.C. will be locked out forever,” McGowan said.

Harvey said Corbett Lake has also been dammed and expanded to the point where private land is now underwater, noting if the case were to go forward, it would essentially boil down to a conflict between the Land Act, requiring public access to a lake, and the Trespassing Act.

“So, it’s either another case where you have public access to the lake, but you can’t use the lake, or the court will decide the Land Act prevails and the public have access to the lake regardless off who owns the bottom,” Harvey said.

McGowan said the club’s intention in launching the Minnie and Stoney lakes case n 2013 was to get the provincial government to come to the table and stop the privatization of public spaces.

“Clearly the government does not want to do that, so I guess we were fighting a losing battle all along,” he said.

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