A recent court case against the Douglas Lake Cattle Company by the Nicola Valley Fish and Game Club saw the club prevail after a six-year protracted trial, with the ruling that the ranch cannot lawfully block access to the lake.
This was a true David and Goliath story with David coming out on top. While generally it was very much welcomed by much of the public as such, our web poll shows about 70 per cent in favour, David’s victory leaves a lot of questions.
B.C. Supreme Court Justice Joel Groves in the Reasons for Judgement notes “It would be nonsensical for a government to retain the rights to a lake if, by virtue of a single owner purchasing all the land surrounding a lake, that owner could prohibit public use or ownership of the lake. It only make[s] sense that government would have retained the ownership of bodies of water, lakes, with the intention of the public being allowed to access water they retained.”
However, in this particular case, that access is perhaps simpler than in many other cases across the province.
For instance in this case when it comes to maintaining the road in question “the annual cost was approximately $10,000, for a total, at the time of trial, of close to $300,000. These are expenditures paid by the government.”
Furthermore, the road leading up to the lakes was deemed a public road.
But the document doesn’t address how that access would happen where there is no public road.
“In their pleadings, the Club has alleged that the Province has a public duty to allow access to roads and lakes, and to allow fishing in lakes… I find that, in deciding the questions posed in this litigation, I need not directly decide whether the Province has such an obligation in regards to lakes and fisheries.”
Further noting that the Province does “not agree that they have an obligation to enforce a public right to lakes or fishing, or that there exists a public right to lakes or fishing.”
Groves concludes that ” In answer to the question raised by the club as to a common law right of access to lakes, again, I have determined that I need not consider this issue though I am strongly persuaded at an initial stage that there is substantial merit,” and that “in regards to the considerations of the Tresspass Act, I have determined that I need not make any determination.”
Yet finally, “In answer to the general determination of the Province’s obligations in regards to public access to road and lakes, though no legal public duty to maintain roads or to guarantee access to lakes have been proven, there is an overwhelming public duty on the Crown in maintaining ownership… to ensure that there is access to the public.”
Where that leaves the public and private property owners where no public road exists is pretty muddy.
However, personally, after some crazy wildfire seasons, I can think of at least one reason why the Province may want to own the lakes even if there’s no public access.
newsroom@100milefreepress.net
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