Another page has been added in a longstanding legal battle over public access to two lakes surrounded by private property in B.C.’s Southern Interior.
On Friday, the B.C. Court of Appeal released its decision between the Douglas Lake Cattle Company (DLCC) and the Nicola Valley Fish and Game Club.
At stake are two lakes that are surrounded by property belonging to the ranch, which is owned by American billionaire Stan Kroenke.
In B.C., bodies of water are considered Crown land, and are available for public use. However, if they’re surrounded by private property, can the public legally access those lakes?
In 2018, a B.C. judge sided with the Nicola Valley Fish and Game Club after the cattle company blocked access in the early 1990s to Stoney Lake and Minnie Lake.
In his ruling at the time, Justice Joel Groves said the provincial government retained rights to the lake, therefore making fish in the lake public property as well. In turn, he said the public would then need access to those lakes.
The cattle company appealed, contending that the judge erred in his interpretation of relevant legislative provisions, his description of lands conveyed by Crown grant, and the test of common law dedication.
In a lengthy, unanimous ruling written by Justice Peter Willcock that can be seen here, the appeal was allowed in part.
The key item of Willcock’s ruling said the public road at issue does not reach the natural boundary of either lake.
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Further, the ruling specifically noted that “unlike other jurisdictions, British Columbia does not have public access legislation. The absence of such legislation reflects a policy decision by the legislature that is the focus of some debate.
“The debate, however, is with respect to the wisdom of the policy decision that has been made, not with respect to the state of the law.”
The ruling added a quote from a public access study that said “there is no right to cross private land in B.C. without permission of the owner or occupier, except on a highway, pursuant to the Highway Act, or on an easement or right of way, registered in the Land Title Office.”
In allowing part of the appeal, Willcock said “(Groves), in his epilogue, added his voice to the chorus of those seeking to limit the rights of private property owners. In doing so, he was not describing the law but advocating for a right of public access to lakes on private land.
“In conclusion, it is my opinion that DLCC is entitled to restrict access to Minnie Lake and Stoney Lake and the club has no statutory or common-law right to cross DLCC’s property, whether it is flooded or not, to access the lakes.”
Specifically, Willcock ruled that:
- All lands above the natural boundaries of Stoney Lake and Minnie Lake are privately owned lands;
- There is no right of public access across the property of the Douglas Lake Cattle Company from Stoney Lake Road to Stoney Lake by way of any road, trail, or otherwise;
- There is no right of public access to Minnie Lake other than by way of Wasley Creek from the point where Wasley Creek crosses Stoney Lake Road;
- The public right to fish in Minnie Lake and Stoney Lake is limited to fishing within the natural boundaries of each lake.
Finally, Willcock said “in my view, success in this case is, ultimately, truly divided.”
He continued, stating “the club has obtained a ruling that establishes public ownership of the fishery in the lakes and preserves the public right to use a section of road. The road, however, is largely disused and does not afford access to the lakes.
“Because the club’s success should have been so limited, I would set aside the order for special costs and order each party to bear their own costs at trial.”
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