On September 29, 2021, the legal saga of Nicola Valley Fish and Game Club v. Douglas Lake Cattle Company is over.
The Supreme Court of Canada has dismissed the Fishing Club's application for leave to appeal from the British Columbia Court of Appeal's March 2021 decision, which overturned a troubling trial decision.
This means that an appeal to the Supreme Court of Canada will not take place. The decision of the Court of Appeal stands as the law in British Columbia.
The trial decision handed down on December 7, 2018, found that public access existed to the two lakes in question despite their being surrounded by private ranch land. The decision was widely perceived to open the door for public access as of right, without permission, over deeded land in order to reach the Crown land under lakes.
Generally speaking, the area of a lake existing at the date of a Crown grant, remains Crown land, although the land around the lake is deeded land pursuant to the Crown grant. In this case, the lakes in question had been lawfully expanded in size by storage of licensed irrigation water. The parties agreed that land under the expanded lake area, except for the original area, remained deeded land, but there was disagreement as to whether crossing the flooded private land was a form of trespass.
The trial judge accompanied his decision with an impassioned Epilogue, addressed to the Province, pleading for the government to legislate a more extensive right of access so that all British Columbians could go, as of right, across deeded land to access Crown land and lakes.
In a subsequent proceeding, the trial judge awarded "special"costs against Douglas Lake Cattle Company and the Province, an order which would have required them to pay for all of the legal costs of the Fish and Game Club.
The history of the dispute was discussed in an article for Beef in BC, March-April, 2017. The trial decision was discussed in an article for Beef in BC, March-April, 2019.
Douglas Lake appealed the trial decision and the subsequent decision on costs to the British Columbia Court of Appeal. British Columbia Cattlemen's Association, at that point, decided to apply to intervene in the appeal, to defend the rights of all of its members to prevent trespass on their deeded land.
The application for intervenor status was successful and the Association participated in the appeal.
The decision by the Association to apply for intervenor status was not made lightly. Litigation was phenomenally expensive and never lightly undertaken. The Association along with other resource sector groups had intervened in litigation only once before, at the Supreme Court of Canada level in 2004 in Haida Nation v. British Columbia (Minister of Forests). The Association generally avoids litigation as a strategy.
In this case, the assertion of the Fish and Game Club that there should be a public right of access over deeded land to Crown lakes and lands beyond was alarming enough to Association members that the directors elected to apply to participate in the appeal.
On March 5, 2021, the British Columbia Court of Appeal issued its decision, summarized as:
The trial judgement gave the public access to two lakes on the appellant DLCC's property, DLCC challenges the judge's determination that a road and a trail on the property were excepted from an 1895 Crown grant and that there is public access to both lakes. Held: Appeal allowed in part. The road in question was excepted from the Crown grant; however, because the trail was not excepted from the Crown grant and the elements of common law dedication are not met, the trail is not a public way. The trial judge erred in determining the natural boundary of one lake by failing to address the applicable statutory criteria. 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. The lakes in question are not navigable and no case for access to the shoreline as a right appurtenant to the right to navigate is made out. A public interest costs order against DLCC and the respondent Province was also set aside, with each party ordered to bear their own costs at trial.
A review of the appeal decision "Round Two, Battles and Wars" was published in Beef in BC in the May/June 2021 issue.
The Fish and Game Club then applied to the Supreme Court of Canada for leave to appeal the Court of Appeal decision to the Supreme Court. This required them to convince the Supreme Court that a further appeal was necessary due to the national or public importance of the issues.
On September 29, 2021, the Supreme Court of Canada denied leave (permission) to appeal. The substantive legal proceedings in this case are over.
Douglas Lake Cattle Company was represented throughout by Evan Cooke and at the appeal level by Evan Cooke and Ryan Parsons both of Eyford Partners LLP. The case would have been immeasurably more difficult without these capable lawyers understanding and assembling the required facts, presenting that evidence at trial, and arguing the trial, appeal, and application for leave to appeal to the Supreme Court of Canada.
The Association was represented in its application for intervenor status and at the Court of Appeal hearing by Howard Mickelson and Clayton Gallant of Gudmundseth Mickelson LLP. These lawyers specialize in appeal work and their understanding of the case in the context of the appeal was necessary to bring the interests of the Associations's members to the attention of the Court of Appeal.
In now way does the outcome of this case resolve the public's desire to go wherever they want to, whenever they want to, deeded land or no deeded land.
There was a flurry of controversy and demands for "right to roam" legislation when the Court of Appeal decision was made public. There will be continuing pressure on the Province to legislate the "right to roam" for access over deeded land to lakes and perhaps generally for recreational purposes.
Rural landowners would prefer to live in a society which has enough respect for the food and environmental benefits that landowners provide, that the public would be prepared to restrict their use of land to situations where they have sought and obtained consent from the landowner.
That does not appear to be the preferred direction of the loudest public voices. Industry participants should use every opportunity to educate the public, the civil service, and B.C.'s elected representatives about the need for food producers to control their land base.
Written by Mary MacGregor Q.C. who practices law with Mary MacGregor Law Corporation in Kamloops BC