The trial of the lawsuit involving Douglas Lake Cattle Company, Nicola Valley Fish and Game Club, and the Province of British Columbia is underway at the Kamloops Courthouse as I write this article in late January. Supreme Court Justice Joel Groves is the presiding judge.
Comments about the lawsuit in the news media just before the start of the trial, have alarmed many in the livestock community.
An article in the Vancouver Sun on January 8, 2017 identified the issues in the lawsuit, but went on to cast the dispute as a black-hat/white-hat dispute between a "multibillionaire American" (Stan Kroenke, the owner of Douglas Lake), and the ordinary Canadians who belong to the Nicola Valley Fish and Game Club.
The article also said that West Coast Environmental Law was funding the litigation in part. Andrew Gage, a staff lawyer at WCEL, was quoted in the Vancouver Sun article as saying that the issues raised in the lawsuit (discussed below) are "…really fundamental questions about whether lakes and fish can be privatized and kept for the exclusive benefit of the resort and their guests, or whether there is something fundamentally public about fish and water, that all British Columbians have a right to access".
Christopher Harvey, Q.C., a well-known Vancouver litigator and, according to his on-line biography, an honourary director of WCEL, is acting for the Fish and Game Club.
The outcome of the litigation will not be known until the trial concludes and the judge renders a decision. Subsequent appeals are possible.
The following information is extracted from the pleadings (the court documents which are filed by the parties to the lawsuit and exchanged at the start of the court action) and from the 2015 decision of Supreme Court Justice Ross referenced later in this article.
In 2013 the Fish and Game Club applied in Supreme Court for a declaration for access to Stoney and Minnie Lakes, both of which are on Douglas Lake deeded land. This limited court proceeding was overtaken by a different form of lawsuit in which Douglas Lake is the plaintiff and the Nicola Valley Fish and Game Club and the Province are the defendants. This lawsuit was substituted for the first to ensure that all issues and all evidence relating to the dispute—rather than a subset of them—are presented to the judge for a decision.
Two land titles are the subject of the litigation, with crown grants made in 1890 and 1895, one of which shows two dotted lines indicating roads or trails. According to Douglas Lake’s civil claim document, these roads no longer actually exist and their precise location is unknown. There was an intervening later road and a still-later road which replaced the intervening road. The most recent road is formally confirmed as a public road.
Both Stoney and Minnie Lakes have historically been dammed under water licences held by Douglas Lake, and as a result, the areas covered by the lakes have increased significantly in size from the area of the lakes shown on the crown grants.
Since Douglas Lake started to prohibit and manage public access to ranch lands in the 1970s and to stock the lakes with rainbow trout, it has invested significant dollars on improved fish habitat in the two lakes and in the Stoney Lake Fishing Lodge, which provides a catch and release fishery recreational experience for patrons.
An application by the Fish and Game Club in 2015 resulted in some interesting comments by the judge who decided that application. The application by the Fish and Game Club was for a court order to force Douglas Lake and/or the Province to pay for the Club’s legal costs in advance of the trial of the lawsuit. The Fish and Game Club’s application for advance payment was denied in a decision of Supreme Court Justice Ross, issued January 28, 2015.
Justice Ross said in part in dismissing the application "I agree with the submission of Douglas Lake and the Province that this case is not one of public importance. While the Club has established that some of its members have a desire to fish in the Lakes, and that those members want access across the Ranch’s land to do so, I am not satisfied that the Club has established that the litigation transcends these particular concerns."
Justice Ross went on to say "…the case is extremely fact-specific and will be of limited precedential value. It will not benefit significant members of the public. It does not raise Charter issues."
If the WCEL comments in the Vancouver Sun article were correctly reported, WCEL disagrees with Justice Ross’ view of the lawsuit.
Working from the filed court documents that started the court action, the issues in the litigation are:
There are issues raised in this lawsuit which, although relating to the specific facts of this case, will be of general concern to anyone who owns land in British Columbia and specifically to those in the ranching community.
The particular issues of concern are the allegation of the Fish and Game Club that deeded land is converted into crown land if flooded, and the alleged automatic right of public access through deeded land to crown land beyond.
When a court decision is rendered, I will review it for Beef in B.C. readers.
Mary MacGregor, Q.C., practices with Mary MacGregor Law Corporation in Kamloops.