By James Rose
Special to the Pioneer
In the Columbia Valley and across Canada, public access to Crown land is a long-held tenet enjoyed by all. But sometimes, private and public interests collide. A contentious, influential B.C. Supreme Court case involving Okanagan backcountry recreationalists and a large private landowner offers a glimpse into how public access disputes also found in the Columbia Valley may be resolved.
Last December, the Nicola Valley Fish and Game Club scored a major legal victory against Douglas Lake Cattle Company, one of Canada’s largest and oldest cattle ranches owned by American multi-billionaire Stan Kroenke. Mr. Kroenke made a fortune in real estate development, married an heir to the Walton fortune and owns the NBA’s Denver Nuggets, NFL’s Los Angeles Rams, NHL’s Colorado Avalanche and British soccer juggernaut Arsenal FC, among other businesses.
The dispute between Nicola Valley and Douglas Lake goes back to the early 1990s. At the time, Douglas Lake cut public access to two ranch-land lakes, which it expanded with dams and reserved for the exclusive use of its fishing-resort guests. The heart of the complicated case involved determining whether the road was in fact public.
“There are five criteria to determine if a road is considered public or not,” said Queen’s Counsel lawyer Chris Harvey from his downtown Vancouver office, who represented the Nicola Valley club. “The simplest case is if even a cent of taxpayer money has been spent to build or maintain a road, immediately that road is deemed for public use.”
Rick McGowan, the man who spearheaded the battle on behalf of the fish and game club, strongly disagreed with the ranch’s actions, arguing that lakes and rivers belong to the Crown, meaning that even when they’re surrounded by private property, the public are free to fish them — as long as you can get to the water, either by public road or via a well-established right-of-way. The fish and game club said the ranch had improperly gated off and decommissioned what had been a public road.
Douglas Lake contended that not only was the access private, but so were the trout, since the ranch stocked the lakes. It also argued that because the ranch flooded the lakes beyond their natural boundaries, the land submerged under the expanded portion was private, putting the waterline off limits to the public.
B.C. Supreme Court Justice Joel Groves ruled in favour of the club and wrote scathing remarks critiquing Douglas Lake’s abuse of power and equally, if not more, the provincial government’s negligence to serve as the guardian of public lands.
“This case is demonstrative of these conflicts and shows the necessity of legislative action to resolve these issues. The courts can only settle individual problems and act on the matters litigated in front of them; they cannot remedy larger societal concerns,” wrote Justice Groves in his ruling. Lakes and the fish in them belong to the Crown, even when the lakes are surrounded by private property. Removing a road doesn’t equal removing the public’s right to access.
“As a society and a civilization, we are long-past the view that land resources and water resources are infinite,” he wrote. “This case concern[ed] the contemporary challenges between the interests of citizens to access government-held property and the interests of private landholders who operate agriculture endeavours, and other activities, on their landholdings. This is a type of conflict that, in the future, will continue to plague both landowners and citizens, in the absence of some clear judicial or legislative definition of rights and obligations.”
Mr. McGown told reporters after the ruling: “We always knew what evidence we had and the law, but it was just how we were going to get the government and the private land owners to acknowledge that the law is there and they have to abide by it. And the judge now has confirmed that.”
In the Columbia Valley, a similar conflict between landowner and users hovers under the radar. For years, a locked gate across Johnson Road has prevented access to CastleRock, one of the Columbia Valley’s most popular Purcell mountain hikes. Sitting between backcountry recreationists and the trailhead (which lies on Crown land) is a private ranch owned by the Zehnder family. The Zehnders allegedly blocked access through the surveyed public road to prevent people from disturbing their cattle and agriculture business.
The Lake Windermere District Rod and Gun Club says it can prove the Zehnders and other private landowners around the Columbia Valley are breaking the law by blocking public access across their property.
“There are multiple cases around the Columbia Valley where public roads to the backcountry are being blocked by landowners who don’t want people crossing their land,” said Rick Hoar, president of the club. Other examples include an allegedly illegal blocking occurring at a public resource road going along Toby Creek, also on Zehnder property.
“The Zehnders are also blocking access through a public resource road along Toby Creek up by the gravel pit in addition to the Johnson Road with large boulders and no-trespassing signs,” said Bob Walker, another member of the club.
John Zehnder, when asked to comment for this article, said he thinks it’s irresponsible for the club to bring this issue forward to the press.
“If people have issues, they should talk to the landowners directly,” said Mr. Zehnder. “It’s a dirty way to do something.”
Other examples of blocked access brought forward by the club include a resource road along Westside Road.
“Randy McRoberts and JC Alacoque own land along Westside Road that has a resource road running through it – this is also gated and posted illegally,” said Mr. Hoar. Another example the club gave is a blocked resource road off the Horsethief Forest Service Road leading to the Grotto owned by Lee Reddy.
“[Reddy] has shown a willingness to let peoplethrough if they ask for permission, but still the fact remains there should be no gate at all on a public road,” said Mr. Walker.
“If you want to go across the Zehnder ranch to hike CastleRock, a road that you have every right to, you could be criminally charged with trespassing,” said Scott Pitt, another member of the local club. “But if you were to do that, you could eventually go to court and show the evidence that we’ve dug up showing the Zehnders are in the wrong.”
The local Rod and Gun club went to the extent of retrieving archived records from a dusty government building in Victoria showing Johnson Road to be a publicly gazetted right of way.
The amount of aggravation and disputes between private landowners and recreationists will continue to rise as more and more people choose to visit the Columbia Valley for its four season outdoor recreational opportunities. Destination BC, with its multi-million dollar budget, has a mandate to support and promote the business of tourism throughout the province. Through backcountry recreational land use planning, some speculate that these kinds of land use disputes in the Columbia Valley could be avoided and addressed head on.
“For the past seven years, I’ve led an effort to establish an access management plan for our area,” said Mr. Hoar, a retired conservation officer. “The idea is to bring multiple user groups to the table and to discuss how we can create backcountry sectors, allocated timeframes, and so on for responsible recreational use.”
The topic of equitable recreational land use planning is so contentious however that some user groups declined to even comment for this article.
“I ran this past the executive of the club and the response was an overwhelming ‘not interested’,” said Columbia Valley Cycling Society board member Jordie Kirk in an email.
Liberal MLA Doug Clovechok never returned voicemail or email when asked to comment.
The community of Golden just up the road created a backcountry access management plan years ago. Close to 20 years ago, Golden residents recognized the steady growth in the outdoor recreation sector in terms of public and commercial, motorized and non-motorized recreational activities wasn’t going to slow down. In response, the Golden Backcountry Recreation Access Plan (GBRAP) was initiated in 1999 as a proactive decision-making process to resolve recreational issues and establish recreational patterns of use and opportunities throughout the 9,000 square kilometres of the Golden Timber Supply Area.
The process considered public recreational area and access requirements, the need to promote and provide certainty for tourism, and the need to conserve important wildlife habitat for the future. By indicating where and what type of recreational activities could occur, the routinely updated plan provides a measure of certainty for both tourism development and public recreation.
“The problem is that we can’t get the provincial funding to have this sort of document written up and blessed by our government,” said Mr. Hoar. “We had all our documents set to go this past fall but then we learned the Koocanusa area received the provincial funding. We only received $10,000 for a budget which really doesn’t do anything toward establishing the kind of framework necessary.”
Provincial governments new and old have long disappointed advocates of enforced public access to crown land. In February 2017, Green Party leader Andrew Weaver introduced the Right to Roam Act. Right to Roam aimed to address and prevent conflicts like the Douglas Lake dispute and was built off the existing BC Hunting and Fishing Heritage Act and the Nova Scotia Angling Act.
“Free public access to the outdoors is vital to people’s health and well-being, but it is also vital to the health and well-being of our environment,” Mr. Weaver said at the time. “People protect what they know and love. If we become disconnected from our environment, we risk disengaging with the fight for its future.”
But just as there has been no change to how the law is enforced in the wake of the Douglas Lake court case, there has been no progress on passing through the house Right to Roam.
“The Province has continuously failed the citizens of British Columbia,” said Justice Groves. “I am not pointing a finger at any particular government individual but, again, it is most unfortunate that all governments holding the obligation of the public trust have failed. There is plenty of blame upon all politicians and all political parties who have governed this Province since 1990.”
On a visit to Mr. McGowan at his home in the hills above Merritt, he spoke of the strong sense of justice his club felt after years of dispute. Despite the divisiveness of the case to his Okanagan community, Mr. McGowan was clear: “to the Lake Windermere District Rod and Gun Club and other user groups around the province and nation, I say keep the fight up because the law is on your side as evidenced by our win.”
When the ruling was made, the immediate next question was what the impact on enforcement of the law would be across the province. So far, nothing has changed. Douglas Lake launched an appeal that is scheduled for spring 2020. If the appeal is successful, next stop: Supreme Court of Canada.
Mr. McGowan’s granddaughter was pictured before the court proceedings in front of a locked gate with a little fishing rod. And after the court case? She and her grandpa went fishing at Minnie Lake after driving through the court-ordered unlocked gate.