The British Columbia Court of Appeal has overturned a previous BC Supreme Court ruling that granted the public access to Minnie and Stoney lakes, located southeast of Merritt.
The Douglas Lake Cattle Company (DLCC) and the Nicola Valley Fish and Game Club (NVFGC) have been embroiled in a lengthy legal battle regarding public access to the two lakes, which has been contested for nearly a decade.
The NVFGC regards Minnie and Stoney lakes as public property, which should be freely accessible to anglers and day-trippers. DLCC, now owned by American billionaire Stan Kroenke, owner of Kroenke Sports and Entertainment and husband of Walmart fortune heiress Ann Walton Kroenke, disagreed.
This disagreement has led the two factions through court battles which some have compared to the famed conflict of David and Goliath.
“We’ve been embroiled in a lawsuit for approximately ten years now,” explained Rick McGowan, a NVFGC director and Chairman of the club’s access committee.
“We had a court ruling two years ago regarding Minnie and Stoney Lake on the Douglas Lake property. In that 20-day trial, Justice Groves ruled in our favour and we won access to the lakes and fishability, and he ruled that the fish were public, that the roads were public and all these sorts of things.”
At that time in 2018, the NVFGC was also awarded special costs, which would allow for the club’s lawyer to be paid as opposed to working pro bono. According to the BC Courts website: “Special costs may be awarded by the court to address the conduct of the parties. Special costs are intended to ‘resemble closely’ the reasonable fees charged by a lawyer to his or her own client.”
Douglas Lake appealed this ruling, going to the BC Court of Appeal.
“We went to court of appeal, that was approximately a year ago, and the court of appeal ruling came down a week ago and ruled completely against the first judge’s ruling on everything,” said McGowan, with the exception of still allowing access to Minnie Lake, albeit lesser access than what had previously been granted.
McGowan also takes issue with the process of the court, and the fact that the determining decision was made, he claims, by just one judge.
“There were three appellant judges and two of them did nothing,” said McGowan.
“One guy wrote the whole ruling, which is 25 to 30 pages, and he actually used Douglas Lake’s lawyer’s reasons for appealing word for word in his ruling, so it kind of smells.”
The NVFGC is no longer entitled to special costs as a result of this ruling, and has been ordered to pay Douglas Lake’s legal costs for the appeal, which the club has been told are estimated to be around $25,000 to $30,000.
“We’ve spent over $160,000 to date and we’ve got approximately a couple hundred thousand dollars of bills un-billed by our lawyer, who’s been doing it for free, subject to us winning the special costs which have now been eliminated,” said McGowan.
“So, our financial future right now is unknown, other than we don’t have the money to pay those kinds of bills.”
McGowan estimates that the total cost of the ongoing legal battle, factoring in the province, DLCC and NVFGC, is around $1.5 million in total.
Having now had their hopes dashed by BC’s highest court, the NVFGC decided at a meeting of the executive held on March 14 to take their plea to the highest court in the country.
“We’ve decided to pursue the case to the Supreme Court of Appeal of Canada,” said McGowan.
“The bottom line, the huge issue, is that the judge ruled that if the landowner acquires a water license and raises the water over his private property, that property and the water above it is private, so you can’t get to the public part of a public lake, which is bizarre. And that affects thousands and thousands of lakes in British Columbia and Canada, which is really serious,” McGowan continued.
“It’s not a good thing for the people of British Columbia and future generations, it’s basically just a terrible ruling, it’s for the very rich and not taking into concern provincial laws and legislation and/or the people of British Columbia and future generations. It’s basically taking public property and giving it for free to rich people.”
While there is no guarantee that the Fish and Game Club will win this time around, McGowan believes that the current ruling contravenes provincial legislation and laws and hopes that the country’s highest court will also view it this way.
“We have to be optimistic that the laws for the people of Canada apply, but it appears that judges can make rulings that are totally bizarre and against all rules, laws and regulations, so to tell you the truth I don’t know,” said McGowan.
“But we’re going to at least try. The people of BC are concerned; can we win if a judge can rule against the law? That’s unknown.”
McGowan himself has given thousands of hours in what he calls a “full time effort”, and he is thankful for the support he and the NVFGC have received. Only a few hours before the interview with the Herald $1,350 was donated to the club for their ongoing costs.
“We want to thank all the people that are contributing morally and financially, we couldn’t do it without their support,” said McGowan.
“The government’s Ministries are supposed to look after the lakes and roads and stuff for the people of BC, but clearly they’re not. So, we’re trying, but I don’t know if we’re going to win it. This is a huge effort, and it’s not going to go away either. People are not going to stand for private people taking public places.”