Ian Mulgrew: Whose wilderness is it anyway?
Credit to Author: Ian Mulgrew| Date: Sun, 11 Aug 2019 21:16:51 +0000
You gotta love it when a B.C. Supreme Court justice puts the boots to an American billionaire — even when it’s his proxy. Yeah, give it to him!
Richer-than-Croesus Stan Kroenke deserved every kick, I think, after one of his myriad companies blocked public access and all but appropriated a couple of tiny B.C. lakes.
But Justice Joel Groves’s rare followup special costs order likely won’t bruise a guy who owns a good chunk of the developed world including the NBA’s Denver Nuggets, the NFL’s L.A. Rams, the Colorado Avalanche of the NHL and English football club Arsenal.
It won’t sting him to pay half the estimated $300,000 or so in legal fees incurred by the rod-and-gun club that won the lawsuit his company launched, fought and lost.
But the case highlights increasing conflicts across the province as forest firms, mining companies and other private interests clash with ecotourists, fishers, hunters and Indigenous people demanding more and more access to Crown wilderness land.
In December, Groves seemingly struck a great blow for the little angler by ruling against Kroenke’s historic Douglas Lake Cattle Co., the largest continuously operating ranch in Canada.
He found Douglas Lake closed a public road that was a gateway to the lakes and held the province, through many different governments, equally liable for doing nothing about it.
Groves said the firm couldn’t simply assume control of Minnie and Stoney Lakes — traditional fishing spots for Indigenous people and other residents.
The ranch was established in 1884 and has grazing rights to about a million acres of Crown range — a truly sprawling spread northwest of Kelowna.
This fight has its genesis in the original land grants — when the area was remote, sparsely populated and water resources less taxed.
The sparring broke out 30 years ago when Douglas Lake restricted use of the old Stoney Lake Road and access to the lakes.
The Nicola Valley Fish and Game Club later triggered the six-year-old legal slugfest by filing a petition in 2013 asking whether or not the road was public.
Groves pointed out the ranch then initiated litigation raising numerous issues and claims against both the club and the province.
He added that the company’s response “usurped” the club’s attempt to resolve a relatively straightforward issue and required a 20-day trial.
He concluded by lambasting both the cowpokes and bureaucrats, noting:
“It is most unfortunate that all governments holding the obligation of the public trust have failed to take any actions to prohibit what was an illegal obstruction of a public road by a corporate entity, for its own benefit Surreptitiously agents of government went behind the backs of statements of politicians and attempted to solve the problem by abandoning the road or transferring it to Douglas Lake.”
Anglers have been battling the owners of Douglas Lake Ranch since locks appeared on the access road gates to Minnie and Stoney Lakes.
Groves ruled the road was public property, the lakes were also public property and so were the fish — even if they were stocked by Richie Rich, I mean Kroenke.
His costs order was a fillip on the rebuke.
Usually an award of “special costs” is to punish reprehensible conduct.
This, however, was an extraordinary case Groves said. One that raised issues of public interest for which the club should be compensated given their significant and widespread social impact.
“They acted to try to right what they felt was a long-standing wrong against everyone in British Columbia,” he said.
“They have in this litigation protected the interests of the public, of everyone in British Columbia. They have, through this litigation, effected a result which declares open a road which was otherwise closed, a road the province historically maintained and paid for, and a road that the province paid in excess of $300,000 to maintain while knowing the road was closed by the actions of Douglas Lake.”
You can practically hear heroic orchestral music swelling in the background.
“The club through their actions has effectively reopened two lakes to the public, lakes which are public bodies, lakes which until the actions of Douglas Lake in the ’90s were open to the public, and they have acted in a manner generally, as I have noted, which has protected all citizens of the province and obtained a benefit for all citizens of the province, as all citizens can now access the public roads and lakes.”
Hear, hear!
While successful litigants are usually entitled to an award of costs, it rarely covers more than a fraction of their true expenses.
“It is contrary to the interests of justice to ask the respondents (or their counsel) to bear the financial burden associated with pursuing the litigation,” Groves decided.
“In the result, I would depart from the usual rule and award the respondents special costs of the appeal on a full indemnity basis.”
The ranch and the province will each pay half, he said.
All that sounds good, and I hate to raise it, but too often this kind of sound and fury about David beating Goliath presages appellate reversal: Rhetoric about institutional perfidy rarely survives appeal.
Most recently, after a similarly savage lower court ruling against the province in a long-running case also involving water rights, the high bench just as brutally slammed the judge for getting it wrong.
That’s not to say Groves erred.
Only a caution he acknowledged — he was not guided by a “clear judicial or legislative definition of rights and obligations.”
“The opportunity to fish in public waters has become a regulated privilege, as opposed to simply a way of life,” Groves warned.
“Essentially, as both Canada and British Columbia have grown, the pressures on land and water resources have increased and significant conflicts have arisen. This case is demonstrative of these conflicts and shows the necessity of legislative action to resolve these issues.”
Needless to say, the ranch owned by the guy with bottomless pockets has appealed.