owner of the lands surrounding 19 Mile Creek in Whistler does not own the delta
formed on Green Lake. While the property
owner may fence off the lands, and restrict access through the land, there is
nothing stopping someone from walking and/or navigating a vessel down 19 Mile
Creek. Furthermore, a recent SCBC
decision reaffirmed citizens’ access to lakes noting that “The ownership of lake beds is … intended
to be collectively held for the benefit of all citizens of the province. As
that is the case, consider doing what other jurisdictions have done and
guarantee access to this precious public resource.”
Stream and lake
beds are crown property. This was affirmed by the 1894 North-West Irrigation
Act and by a 1932 Supreme Court of Canada decision in Arrow River &
Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd.
point is to recognize that the common law does not regard water in situ as
being capable of private ownership. As Halsbury’s Laws of England puts it:
Although certain rights as regards flowing
water are incident to the ownership of riparian property, the water itself,
whether flowing in a known and defined channel or percolating through the soil,
is not, at common law, the subject of property or capable of being granted to
anybody. Flowing water is only of public right in the sense that it is public
or common to all who have a right of access to it.
Ad medium filum
aquae is a general interpretive rule of British common law that in construing a
conveyance where land adjoining an inland river is granted, the prima facie
presumption is that the parties intend to include in the grant, the bed of the
river to the mid stream.
In Canada, the
rule of interpretation at this common law was expressly abrogated by the
North-west Irrigation Act of 1894 in respect to future grants. The North-west
Irrigation Act preserved rights and agreements obtained and made previous to
its enactment and these would be determined by reference to the applicable law
at the date of the grant or agreement
Irrigation Act unequivocally revoked or rescinded common law riparian rights,
declaring that the water in all streams, lakes, ponds, springs, or other
sources belongs to the Crown. It then defined the conditions under which federal
officials could grant water rights or concessions to companies or individuals
for a variety of uses.
In a 1932 Supreme
Court of Canada ruling on Arrow River & Tributaries Slide & Boom Co.
Ltd. v. Pigeon Timber Co. Ltd., it was declared in its rulings that a company
could not charge a toll on a river as waterways are owned by the crown. In effect, private companies do now own
water in Canada. This and other cases
have affirmed that Canadians have the rights to access through the waterways
and continues to be upheld today as a right of all Canadians.
Crown ownership of water in situis
expressly recognized by statute in British Columbia. The North-West Irrigation Act was first adopted in 1894, but the
specific reference to Crown ownership was added retroactively the following
year as the original Act mentioned only the vesting of a right of use in the
Crown. The North-West
Irrigation Act continued in force until ownership and control of
public land and natural resources were transferred from the federal government
to provinces such as British Columbia.
Although British Columbia as a colony had adopted legislation providing
for Crown control of the use of water as early as 1892. it did not provide for Crown ownership of
surface water until 1925 and did
not recognize it as extending to underground water until 1995. “ The property
in and the right to the use, percolation and any flow of ground water,
wherever ground water is found in British Columbia, are for all purposes vested in the Crown in right of British Columbiaand are conclusively
deemed to have always been vested in
the Crown in right of British Columbia”
Columbia, Ad medium filum aquae – which is more a “property” right
than a riparian right – has been largely abrogated in British Columbia as a
result of an amendment to s. 52(1) of the Land Act. This amendment precludes
private rights of ownership or control over the beds of streams, lakes, rivers,
and other water bodies in the province.
See the BC Land Act at http://www.bclaws.ca/civix/document/id/complete/statreg/96245_01
A recent B.C. Supreme Court decision against Douglas Lake Cattle Company in
December 2018, Justice Joel Groves ruled that Douglas Lake did not gain control
of Minnie and Stoney lakes — traditional fishing places for Indigenous people
and local anglers — by purchasing the grazing rights to the land around it, nor
was it allowed to close a public road, maintained by the province, to cut off
19 Mile Creek:
In British Columbia, as an owner of waterfront property, the property line generally extends
to the natural boundary of a lake, river, stream, or coastal water. This
natural boundary is usually represented by the normal high water mark (in
freshwater areas) or by the high tide mark (in coastal locations). The land
below the natural boundary is defined as the foreshore and in most cases
belongs to the Provincial government (the “Crown”). This includes the bed of a
river, lake, or coastal area. Beaches, which are dynamic, with sand and pebbles
pushed and pulled by tides and waves, generally also lie below the high water
Owner of the lands surrounding 19 Mile Creek has no right to refuse access to
Green Lake through the water of 19 Mile Creek so long as the person accessing
Green Lake stays in the natural boundary of the high water mark. The high water mark in the case of 19 Mile
Creek may be at times dry, especially in the summer, so careful attention must
be made by all parties.
Only the Crown may refuse access, but it must provide reasons. The Police can only enforce laws and regulations that exist. I can find nothing about 19 Mile Creek in Whistler that would preclude lawful entrance by an individual under the reasons outlined above.
When most Canadians come across “No Trespassing” signs, they stop in their tracks and turn around, often in disappointment.
But not everyone gives up.
A few enter into decades-long battles, like the one against B.C.’s giant Douglas Lake Cattle Company, owned by one of America’s richest people, Stan Kroenke. And the lesson these diehards have been able to pass on is that “No Trespassing” and “Private Property” signs in Canada, despite being posted almost everywhere, are often not worth the plastic, wood or metal they’re printed on.
“Most of the no-trespassing signs you see in B.C. are illegal,” says Rick McGowan, as we travel over a gnarled, grassy track on the magnificent Douglas Lake ranch. This is not just any path, however. McGowan and his allies in the Nicola Valley Fish and Game Club have shown in court it is a public right-of-way, even though it crosses the billionaire’s property.
The track leads to peaceful Stoney Lake, one of dozens of public bodies of water in the Cariboo-Chilcotin that locals, including Indigenous people, were able to fish on not long ago, but which have since been blockaded off by landowners.
B.C. Supreme Court Justice Joel Groves has ruled, however, that the American billionaire and his hired hands can no longer keep Stoney or nearby Minnie Lake, which are Crown property, behind locks, gates and no-trespassing signs.
The Nicola Valley club’s case against the Douglas Lake Cattle Company is a boon to Canadians who love the outdoors and seek rightful access to wild places.
McGowan, an easygoing but tough-talking man, is making a point of taking me over some of the long-obstructed public rights-of-way that lead to Stoney Lake on Kroenke’s ranch. The property is bigger than Metro Vancouver. It’s not only Canada’s largest ranch, it’s the biggest privately owned chunk of property anywhere in B.C.
“Pretty well all the no-trespassing signs around here are shot to s—t,” says McGowan, 67, who spent much of his career with the B.C. Highways Ministry mapping every metre of every road and right-of-way running through the stunning rolling hills southeast of Merritt.
“I’ve surveyed every road in the district. And I knew they were being locked illegally,” says McGowan, whose unique expertise is part of the reason Justice Grove called him an “impressive witness” and took him so seriously as an impartial “public-interest” litigant.
To put it another way, McGowan and his comrades are not in this for the money. Yet McGowan has been arrested three times by the local RCMP though never convicted. The judge criticized the police for their insidious collaboration with Kroenke’s ranch staff. B.C. government bureaucrats and politicians were also bitten by the judge’s rebukes.
Even though the Douglas Lake ranch conflict has huge implications in its own right for access to wilderness, the Nicola Valley club’s concerted response to the reclusive billionaire’s efforts to lock out the people of B.C. is part of a much bigger movement.
That movement has been called “the freedom to roam” or “the right of public access to the wilderness.” It’s a centuries-old campaign by walkers, fishers, recreational users and other ordinary people to gain justified access to lakes, streams, mountains and wilderness, while showing respect for private property.
Sometimes campaigners try to gain access to government-owned lakes and rivers that end up surrounded by private land, which is the situation in the Nicola Valley case. Other times they battle to forge designated trails through “uncultivated” private property itself.
The freedom to roam is well advanced in Scotland, Finland, Iceland, Sweden, Norway, Austria, Switzerland and other nations, where it’s possible to walk pastoral routes that wend their way through a blend of public and private land for hundreds, if not thousands, of kilometres.
Will Canadians follow the European path?
‘Everything you can see … is owned by Stan Kroenke’
“Everything you can see for 30 miles is owned by Stan Kroenke,” McGowan says, standing at the top of a hill that surveys vast grasslands dotted with horses, cattle, rocks, birds and lakes.
The Douglas Lake Cattle Company is one of many B.C. ranches bought since 2003 by Kroenke, a Colorado-based real estate baron who owns the Los Angeles Rams, the Denver Nuggets basketball team, the Colorado Avalanche hockey team, London’s Arsenal soccer club and other major-league sports franchises. He is married to Ann Walton, a scion of the family that owns Walmart, the world’s largest company by revenue.
The Douglas Lake ranch — together with Kroenke’s recent acquisitions of nearby Alkali Lake, Riske Creek, Dog Creek and Quilchena ranches — encompasses roughly 5,000 square kilometres of deeded and Crown grazing land. Metro Vancouver, by comparison, covers 2,700 square kilometres.
The Douglas ranch has its own airstrip and fishing lodges. It also surrounds Stoney Lake and Minnie Lake, which McGowan and friends used to fish in before they were blocked by Kroenke, the man often known as “Silent Sam” since he never talks to the media. Forbes Magazine estimates Kroenke is worth $8.5 billion.
Since he owns more gigantic ranches in the U.S., Kroenke put a Canadian, Joe Gardner, in charge of the Douglas ranch and the extremely costly court case against the Nicola Valley club, which has had to raise hundreds of thousands of dollars to fight the non-resident magnate.
But Gardner, after 40 years at the ranch, stepped down as general manager in July, just six months after Justice Groves decided against the Douglas Lake Cattle Company, saying two of the Crown-owned lakes on the ranch must be reopened for catch-and-release fishing to the public, even if the lakes are stocked by the ranch. Gardner, who still works for Kroenke, was not available for comment.
The judge’s hard-hitting decision — which criticized Gardner for acting above the law and RCMP members for colluding with him — is a huge affirmation that the Canadian public has a right to cherished water bodies, at a time when many believe governments are failing to stand up to private interests.
Groves accused the B.C. government of failing to respond to Douglas Lake ranch’s unlawfulness. “Over 20 years, a privately held corporation, owning a large swath of land, prohibited the public from driving on the public road, and the province did nothing,” he said.
The judge also rebuked Victoria in a scorching epilogue: “It makes no sense to me that the Crown would retain ownership of the lakes, only for there to be no access.” He urged B.C. politicians to re-examine trespassing laws and “guarantee access to this precious public resource.”
The Douglas Lake ranch is appealing the judge’s decision.
McGowan, who acknowledges he’s “a bit of a pot stirrer,” has long found it both provoking and laughable that RCMP officers have arrested him and many others for fighting for the freedom to fish on public lakes. He’s supported by countless people in the Nicola Valley, Kamloops, Metro Vancouver, Victoria and farther afield.
Their donations arrive by many routes, including at Nicola Valley club picnics, where hunting rifles are raffled. “I’ve been fighting this for over 30 years,” including with Douglas ranch’s previous owners, says McGowan, adding how rewarding it is that he’s been joined in the past decade by the Nicola Valley club and people like his lifelong neighbour, retired schoolteacher Harry Little.
Little, a soft-spoken 73-year-old, has come along with us for the ride onto the Douglas ranch, where he describes how McGowan and he have frequently cut off illicit gate locks and explains that the overgrown road to Stoney Lake — which bizarrely remains under a highways maintenance contract — now dives under the surface of the lake, since Kroenke’s people have flooded it.
McGowan, leaning his big frame against his white Dodge Ram three-quarter-ton pickup truck, says people often ask him how he can keep going, since they worry the long conflict must be stressful.
But he laughs at the idea, saying: “This is therapy.”
Surveying the near endless hills of the Douglas Lake ranch, he says, “This was all locked for 30 years.” And now some routes are slowly being reopened.
Not that it is mission accomplished. McGowan says there are at least 30 more lakes in the Nicola Valley that landowners are illegally blockading behind gates, boulders and logs.
That includes the former access route to nearby Quilchena Falls, a spectacular waterfall south of the Kelowna Connector highway, which locals decades ago used to love to visit for swimming and picnics. But Quilchena Falls is now also blocked by Kroenke’s vast land holdings.
What, McGowan muses, does one of the world’s richest land barons want? “At the end of the day, I guess the true capitalist wants to own everything.”
The right to public jewels
I have had the pleasure of walking for days on end on trails through Scotland, Denmark, Italy and Wales, which at certain points traverse private land.
The remarkable European hiking and pilgrimage routes, many of which were in use for a millennium, have been reopened in many cases only because citizens fought complex battles for the right to enjoy them. Now they are considered public jewels.
One of the first crusades for the right to cross private land occurred in Manchester, England, in the 1930s. That’s when a rebellious group of young factory workers who called themselves “ramblers” showed just how determined they were to walk in a beautiful, privately owned area known as the Peak District.
The ramblers did so en masse and many, like in the Nicola Valley, were arrested. But over the long run they prevailed. And Britain is not alone in offering the public access to rights-of-way, including around the edges of farms. Sweden, Norway, Switzerland, New Zealand and many other countries make a point of offering ordinary people the freedom to roam.
Taking into account local context, each country has carefully worked out viable ways to protect landowners from irresponsible users, who owners fear might venture off designated trails, leave behind garbage, camp without permission, start a fire, damage the environment or sue for an injury.
In Canada, by contrast, private-property signs blocking access to public land abound, thoroughly intimidating the uninformed populace. The Nicola Valley club lawyer, Chris Harvey, says Canadians appear to expect governments to protect their access to the wild. But most governments are doing the opposite.
When it comes to property rights, Harvey says, Canadians are somewhere in between more open-minded European landowners and hypervigilant Americans, many of whom behave as if the right to protect private property, often with guns, is their nation’s most sacred value.
The right-to-roam movement in Canada is slowly gaining legs, however, including in B.C., where even city dwellers feel defined by wild places.
Two years ago, inspired by the Douglas ranch case, B.C. Green Leader Andrew Weaver launched private member’s Bill M223: The Right to Roam Act. Even though it died on the order paper, Green representative Claire Hume says it “remains an issue we think is incredibly important and one we would love to see government take on.”
Recognizing the right-to-roam discussion raises “some delicate decision points around traditional (Indigenous) territory and private property-trespass law,” Hume says Weaver didn’t expect his bill — which was intended to make nature “open to all, not just the privileged few” — to pass the way he had drafted it. But he does hope it will spark more discussion in the legislature.
Right-to-roam advocates have never sought unfettered access
The head of the University of Victoria’s Environmental Law Centre, Calvin Sandborn, is one of many leaders of a loose-knit coalition determined to make it possible for citizens to experience nature by venturing onto private land.
In addition to covering the Douglas Lake conflict, Sandborn’s team is monitoring an effort to create a 700-kilometre walking network on Vancouver Island, called the Island Spine Trail. They’re also tracking roaming disputes on Lasqueti Island, Galiano Island and in Comox.
The B.C. Wildlife Federation, the B.C. Federation of Fly Fishers and B.C. Outdoor Recreation Council have prepared positions on the right to roam. And they’re tracking the many ways recreational users constantly come up against landowners.
To ease landowners’ concerns, Sandborn emphasizes right-to-roam advocates have never sought unfettered access to property. “We don’t want people going through a hundred different trails on someone’s property. Access can be provided in a variety of ways.”
And not only to remote wilderness. The Gorge region of the City of Victoria is also in play. Sandborn’s students have surveyed how property owners have built carports and sheds over public rights-of-way to the Gorge waterway, which are legally supposed to occur every 200 metres.
Sandborn says when one Gorge neighbour who lived across the street from waterfront properties that were illicitly blocking beach access found out what the law students were doing, he remarked, “I’ve lived here 20 years. And I didn’t realize until now I had the right to take my canoe down to the water.”
Metro Vancouver has its own access-to-waterfront issues, says Sandborn — in White Rock and West Vancouver.
Washington state can be a model for B.C.
The University of Victoria report suggests which global jurisdictions could be models for B.C. Surprisingly, given Americans’ legendary emphasis on absolute private-property rights, one of them is in B.C.’s own Cascadian backyard: Washington state.
The counties that contain Seattle and Bellingham both offer major tax breaks to owners who make portions of their land available to hikers, birdwatchers, sightseers, horseback riders and other nature lovers, all of whom are expected to follow rules for respecting private property.
Creative things have also been happening at the other end of Canada, in Nova Scotia. That province has long provided citizens the right to cross private, uncultivated land and to go on foot along the banks of rivers and lakes to fish, including with a boat.
Which is precisely the kind of freedom the Nicola Valley Fish and Game Club seeks on the Douglas ranch and beyond.
McGowan is playing the long game, but he doesn’t, to put it mildly, trust politicians. He knows his comrades will need help, particularly from younger generations. He realizes his encyclopedic knowledge of roads and property bylaws in the Nicola Valley has been an incredible asset for the local cause, but he also knows most people don’t have the same background.
So, at his age, he’s worried.
As geese fly overhead, he says the access-to-land cause in the Nicola Valley needs “somebody else to pick up the cudgel.” The long-term strategy of billionaire landowners and their ilk, he believes, is to use their immense wealth to hire lawyers and others to wear people down.
“This is their dream: That guys like me will die off. And nobody will remember.”
The Douglas Lake ranch’s appeal will be heard March 30 and 31 in Vancouver.