http://www.calgaryherald.com/sports/...656/story.html
A decades-long dispute over the right of British Columbians to have access to lakes and fish on privately held property will finally be considered by the Supreme Court of B.C. in Kamloops on Monday.
Nicola Valley Fish and Game Club member Rick McGowan was one of many anglers who fished Minnie Lake, Stoney Lake and others on the Douglas Lake Ranch until Stoney Lake Road was abruptly gated and locked in the late 1970s by the Douglas Lake Ranch. The ranch has since built a fishing resort at Stoney Lake.
Local anglers still occasionally walk to the lakes to fish to help legitimize their claim to access, and McGowan has been arrested twice for fishing at another nearby lake on private land.
“I’ve been fighting this since the early 1980s, and the fish and game club got involved when ranchers started to lock up roads we had used for hunting on Crown land,” said McGowan. “We knew we would have to do something or we were never going to be allowed off the blacktop.”
The court will be asked to decide whether the Stoney Lake Road used to access the lakes is a public highway, whether the public should have access to Minnie Lake and Stoney Lake, which are on private property, and whether Douglas Lake Ranch owns the fish in those lakes, which it pays to stock with trout.
“The law has always assumed — at least in Western Canada — that the beds of navigable waters, streams and lakes belong to the Crown, and I think that most of us assume that means the province owns those waters on behalf of the public,” said Andrew Gage, staff lawyer for West Coast Environmental Law.
Complicating the issue is Douglas Lake Ranch’s claim that its property rights extend to the original, natural boundaries of Minnie and Stoney, which are now deep underwater.
The ranch has built dams to increase the size of Stoney Lake from 37 acres in 1890 to about 141 acres today. Minnie Lake has also been enlarged.
The ranch contends that the land between the original boundary of the lakes and the new, larger lake edge is private property — even though it is submerged — and that the lakes are therefore off limits to the public.
The general rule is that property rights extend to the water’s natural boundary; however, property owners must allow access to bodies of water for casual public use, according to the B.C. Ministry of Environment.
“There are thousands of lakes that have been raised, so if that creates a barrier to access that’s a really significant matter,” said Christopher Harvey, lawyer for the game club. “Does the fact that there is private land under the lake extinguish the public right to float on the lake, walk on the ice or fish in the lake?”
The ranch also contends that because it stocks the lakes with trout for the enjoyment of its guests that they own the fish in the lakes, a point that the game club and the provincial government dispute.
“These 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,” said Gage.
The game club has raised $100,000 for the scheduled 20-day court battle by holding potlucks and raffles and with the donations of 20 other game clubs, $15,000 from the B.C. Wildlife Federation and $25,000 from West Coast Environmental Law.
But their opponent has extraordinarily deep pockets.
The ranch is owned by American multibillionaire Stan Kroenke, who also owns the Denver Nuggets of the NBA, Los Angeles Rams of the NFL and the Colorado Avalanche of the NHL among other sports enterprises. Kroenke’s lawyer declined to comment for publication.
A bid by the game club to have the provincial government pay their legal costs because it is protecting the public’s interests was denied by the court.
However, the David versus Goliath aspect of the dispute helped convince West Coast Environmental Law to make a significant monetary commitment to the case.
“When the fish and game club went to court to clarify whether those were public roads or not, the owner of the property turned around and sued them and forced them into a much more expensive and complicated process,” said Gage. “There is an aspect of the courts being used to silence public debate that was quite troubling to us.”
A case to watch
They have a very good chance.
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