The BC Court of Appeal has sided with Douglas Lake Cattle Co., overturning an earlier ruling granting fishers access to Minnie and Stoney Lakes.
The new judgment also firmly rejects claims of any public right to cross private lands to access Crown property in BC, often termed “right to roam.”
BC Supreme Court Justice Joel Groves ruled in 2018 that Nicola Valley Fish and Game Club members could access two lakes situated within the Douglas Lake ranch northeast of Merritt. Groves found that there was evidence of both public road and historic trail access to the lakes, which are Crown waters, and ruled that Douglas Lake could not restrict fishermen from using the lakes.
DLCC appealed. On March 5, BC appeals court Justice Peter Willcock ruled that the trail was not a public right of way, and that the public road did not reach the shore of either lake.
Given that the lakes are entirely surrounded by private land, Willcock considered whether or not a public right existed to cross private land to access the Crown waters of the lake.
Willcock rejected the idea, noting that BC lacks legislation granting a right to roam. While former BC Green Party leader Andrew Weaver regularly put forward private member bills to entrench the right, none of them passed.
“It has no support in our law,” Willcock’s decision states of right to roam. “Unlike other jurisdictions, British Columbia does not have public access legislation.”
This in turn put paid to any notion that Douglas Lake was required to permit access to the two lakes on its property.
“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, to access the lakes,” the decision states.
In his 2018 ruling, Groves also ruled that DLCC should pay the costs of the trial, particularly because the Nicola Valley Fish and Game Club was acting “in the public interest.”
Willcock reversed that decision and ordered each party to pay their own costs of the 2018 trial. Since Douglas Lake had “substantially” won the appeal, Willcock also ordered the club to pay the full costs of the appeal.
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March 2021