• Sat. Oct 29th, 2022

A legal battle that has pitted Canada’s largest private ranch against a small recreation club in British Columbia has exposed the gaps in provincial legislation when it comes to access to public lands, say experts.

Apr 21, 2021

A legal battle that has pitted Canada’s largest private ranch against a small recreation club in British Columbia has exposed the gaps in provincial legislation when it comes to access to public property, say legal experts. 
The case centres around two lakes in the rolling grasslands of B.C.’s Nicola Valley, 300 kilometres northeast of Vancouver. 
Minnie Lake and Stoney Lake, which are both stocked with trout, are considered Crown assets. But last month, B.C.’s Court of Appeal ruled that the general public can’t visit or fish on them, because the only way to get there would be by trespassing on private property belonging to the Douglas Lake Cattle Company.
Deborah Curran, who is with the Environmental Law Centre at the University of Victoria, said it was a sound legal decision, but the fact that the public is shut out from a public lake makes it clear that legislation needs to be beefed up. 
“There has to be a common solution that respects private property rights but at the same time acknowledges that there is a public right to access public resources,” Curran said. 
The lakes near Merritt, B.C., have been at the centre of a decades-long fight waged by Rick McGowan and other members of the Nicola Valley Fish and Game Club, who accuse the sprawling ranch operated by the Douglas Lake Cattle Company (DLCC) of trying to seal Minnie and Stoney off for their own private benefit. 
Today, the only way the general public can legally fish on those lakes is to book a stay in DLCC’s lodge, cabin or yurts.
‘This is like a hobby to him’
DLCC is owned by Stan Kroenke, an American billionaire who also owns some of the world’s most profitable professional sports teams, including the NFL’s Los Angeles Rams, the NHL’s Denver Nuggets and Arsenal Football Club in the English Premier League.
“The guy has like eight or nine billion dollars,” said McGowan, a director with the fish and game club. “This is like a hobby to him, and for people like us, we retire in this country and all we want to do is go recreate and go put our little boat in the lake and go fishing.”
The case has been repeatedly framed as a David and Goliath battle, but Joe Gardner, the vice-president of DLCC, insists money has nothing to do with it. 
The land is “either private or it isn’t,” he said. “It doesn’t matter if it is your last dime … you want to protect your land.”
McGowan and members of the club have been pushing for access to the lakes and others in the area for years.
Nearly a decade ago, they frequently cut the locks on a fence blocking the road to Minnie and Stoney lakes. McGowan has been arrested for trespassing more than once.
But the larger case eventually ended up in court. 
WATCH Rick McGowan describes how the lake battle has divided the community:
Rick McGowan, a member of the Nicola Valley Fish and Game Club, describes how the lake issue has divide the community and could affect future generations.0:56
Judge calls situation ‘nonsensical’
While it is rare, it is possible for a lake to be private. But in this case, both of the lakes are Crown-owned. 
In 2018, the B.C. Supreme Court sided with the club, saying the public should be able to use the lakes. In his ruling, Justice Joel Groves wrote that it was “nonsensical” for the government to retain rights to the lake if a single landowner could keep the public out.  
While the judge had critical words for DLCC, his decision also derided the province, saying it “failed to protect the public interest” against a “determined and bullying corporate entity.”
Recreation clubs had hoped that the decision would set a precedent, but it was short-lived, because last month it was overturned by the B.C. Court of Appeal.
In its ruling, the three justices concluded that while the road is public, it doesn’t actually reach the shorelines of either lake, and the only way to access the water would be to cut across the ranch’s land. 
The ruling means the lakes are once again off-limits, and the club, which relied on donations to help fund some of its legal costs, is on the verge of bankruptcy.
The club’s lawyer, Christopher Harvey, has sought leave to appeal to the Supreme Court of Canada, noting that land is organized differently today than in the 1800s, when these land grants were established.
Harvey argues that the public should have access to the lakes under the federal Navigable Waters Act, and he urges the court to recognize a historic Indigenous trail that is said to have led to Minnie Lake. 
Historic and growing ranch 
DLCC, which was founded in 1884, has expanded in recent years by acquiring nearby ranches, along with additional property in northern B.C. 
Vice-president Joe Gardner says the ranch near Merritt comprises more than 80,000 hectares of private land and its website states that the company has grazing rights on an additional 400,000 hectares of Crown land.
Last month, CBC was given a brief tour of the main ranch, which resembles a slice of the Old West. Buildings are whitewashed and topped with red roofs. The property includes a bunkhouse and a cookhouse where cowboys often eat together. 
Gardner said some people outside of the ranch are given access to the lakes, including members of the Upper Nicola First Nation, but he insisted allowing everyone in would lead to property damage. 
He said in the past, people have lit fires, scared the cattle and harmed the grasslands. 
Locked gates
While the case is arguably the most high-profile example of conflict over public land and private rights in B.C., Curran said she has heard of plenty of similar situations.
“Public access to land is increasingly becoming an issue in the province,” Curran said. She believes that is partially due to an increase in resource development, and the fact that landowners and rights holders are “more broadly” restricting access than they did before.
While 94 per cent of B.C. is provincial Crown land, Curran said only 12 per cent of it is reserved as parkland. The government frequently grants rights, such as the ability to log, across the rest.
On Vancouver Island, most of the tension is centred around forestry roads, which timber companies sometimes block off. The locked gates can prevent people from accessing lakes, rivers and trails.
Kym Hill, an avid fly fisher from Sooke, B.C., is drawn to the remote quiet of the back country, but says some of her favourite spots are now off-limits in part because of logging in the area. 
Hill believes it is a “Canadian birthright” to enjoy the wilderness without having to jump through hoops, which can be a “big pain in the ass.” 
Mosaic Forest Management, which oversees the operations of the forestry companies TimberWest and Island Timberlands, publishes a map on its website showing which gates are currently open and which are closed. 
In a statement to CBC, it says that because its lands are privately owned, the timber companies could be held liable if someone was in the area and got hurt or started a wildfire. 
Mosaic said it tries to facilitate access by opening gates on weekends when logging operations are inactive, and that clubs and recreational users can fill out an application form to seek permission to enter closed-off areas. 
Right to roam 
Curran said despite the fact that access issues are continually raised, the provincial government hasn’t been pressured to act. She believes that could change if recreational users banded together to lobby the province. 
She says B.C., could consider adopting “right to roam” legislation, which has been embraced by countries in Europe. 
In the U.K., people are allowed to hike across private mountains, moors and heaths. In Sweden, Allemansrätten (everyman’s right) goes even further, allowing people to camp and even pick berries and flowers on private land.
In response to a request from CBC, a spokesperson for the B.C. Ministry of Forests, Lands, Natural Resource Operations and Rural Development said it is studying the Minnie and Stoney lakes court decision and considering “all options,” including making changes so “British Columbians can further enjoy recreation on public lands.”
While McGowan is all for the government taking action, he doesn’t believe right to roam legislation is quite right for B.C.
“I can’t honestly say I would support private people running around on private property,” he said, noting “there is going to be a lot of idiots running around.”
What he wants to see are easements, or pathways, on contested properties to ensure that the public can access lakes and other wilderness areas that are currently out of reach.