The Fight Continues For Nicola Valley Fish & Game Club

BC Court of Appeal overturned recent favourable decision

Funds raised through game banquets and rifle raffles have squared off against the profits from a corporate sports and department-store empire – and come up short.

The opponents are a Merritt fish and game club and a US multi-billionaire. At issue is the freedom of families at all income levels to fish in public lakes and enjoy other aquatic sports.

However, in the opinion of Judge Peter Willcock of the BC Court of Appeal, two lakes, which have been raised above their natural boundaries so that they now flow over and abut private land rather than Crown-owned land, have no public access.

The club says the right to use public lakes supersedes private property rights and the owner of the shoreline may not, by excluding trespassers, interfere with the right to fish or navigate. The Court Of Appeal judge did not agree.
The club says the right to use public lakes supersedes private property rights and the owner of the shoreline may not, by excluding trespassers, interfere with the right to fish or navigate. The Court Of Appeal judge did not agree.

In fact, he wrote a judgment, which was agreed upon by fellow Judges Lori Ann Fenlon and Peter Voith March 5, stating, “There is no right of public access across the property of the Douglas Lake Cattle Company,” and also that, “The public right to fish in Minnie Lake and Stoney Lake is limited to fishing within the natural boundaries of each lake.”

Since that part of the two lakes is now inaccessible without crossing land owned by the Douglas Lake Cattle Company, the public cannot access the lakes without permission from the owner of the private property.

That owner, Stan Kroenke, has posted no trespassing signs at the access to both lakes.

The appeal court decision overturns a Supreme Court decision Dec. 7, 2018, by Justice Joel Groves, in favour of the Nicola Valley Fish & Game Club of Merritt, that the public has the right to access both lakes and to fish in them.

At the centre of the dispute, lobbying to “leave this world a better world for our kids,” is Rick McGowan of the Nicola Valley Fish & Game Club, who has been in this battle with the ranch owners for more than 30 years. He has fought alongside fellow anglers who suddenly found themselves blocked from proceeding up a gravel road to fish in the lakes in the 1980s, until the court decision two years ago, when the ranch was ordered by the court to unlock the gates across that road. (It was in the 1980s that the 210,000-hectare ranch got into the business of recreational tourism, in addition to cattle ranching, building lodges and other amenities on fishing lakes on the ranch.)

So, for the past two years, the Freshwater Fisheries Society of BC, funded largely from the proceeds of fishing licences purchased by BC anglers, has stocked Minnie Lake with 8,000 yearling Pennask strain rainbow trout each year and Stoney with 4,000.

Those fish can now only be caught by anglers who pay the Douglas Lake Ranch to fish in the two lakes.

Although this may appear to be a simple and minor dispute between local anglers and the largest working ranch in Canada, the ramifications of these court decisions are much broader than that.

Access to thousands of fishing lakes across Canada is at stake here, contends McGowan, who says he does not believe the rich should be able to take away public lakes.

With this appeal court decision, “If you raise the lake, you can get it for free. They can steal these lakes from the public,” he said, just by damming a lake so the shoreline reaches up to private property, where the property owner can prevent the public from trespassing to reach the water.

Judge Willcock’s judgment read, “The road is public; the fish in Minnie and Stoney are not the property of Douglas Lake Cattle Company; and the public can fish within the natural boundaries of the lakes if they can lawfully access the lakes.”

The club says the right to use public lakes supersedes private property rights and the owner of the shoreline may not, by excluding trespassers, interfere with the right to fish or navigate. The judge also ruled the lakes are not navigable waters, adding that neither of the lakes in question is a navigable waterway unless “that term is so broad as to include any body of water upon which a boat may float.”

The judgment read, “The club invites us to recognize a right to cross private land where it is necessary to do so to access a lake on land reserved to the Crown for the benefit of the public. In my view, while this argument may attract considerable public support, it has no support in our law.”

He added, “Unlike other jurisdictions, British Columbia does not have public access legislation.”

Finally, he ruled all lands above the natural boundaries of the two lakes are private lands, owned by the Douglas Lake Cattle Company, with no right of public access by road or trail, or by Wasley Creek, which flows into Minnie Lake.

It’s simply not right, said McGowan, and he’s determined not to end the fight. “We’re stubborn as hell and we’re not giving up,” he said.

And, in fact, the club’s lawyer, Chris Harvey, has applied for leave to appeal this most recent decision to the Supreme Court of Canada.

However, such trips to court are costly, and McGowan figures so far, the legal costs of Douglas Lake, his fish and game club and the provincial government are over $1.5 million, with $200,000 of that in the lap of the Nicola Valley club, apart from the quarter million that’s owed their lawyer.

“It’s frustrating, but this judgment contradicts provincial and federal laws,” noted McGowan. “Privatizing public waters is a big issue.”

“This judgment sets a new precedent,” he added. And, he feels, it’s not the Nicola club’s job to look after this government’s duties to protect the rights of the people of BC.

While fellow anglers around the province and elsewhere have helped support the club with this effort, now it is even more important that people donate to help the fight continue, said McGowan. You can donate by going to the club’s website at www.nvfishandgameclub.ca or you can make out a cheque to the club and mail it to McGowan at P.O. Box 2244, Merritt, B.C., V1K 1B8.

The judgment also overturned the previous court’s judgment, which awarded special costs to the club, and instead ordered each party to bear its own costs, and further that the ranch would have the costs of the appeal.