Nicola Valley Fish and Game Club Closing Argument

EVIDENCE
A) General picture
Road

1. By 1891 there was a well-established road from Quilchena to Minnie Lake; (0090); There
is evidence of public finds being spent on it in 1903; A letter in 1913 refers to many settlers
going into the Penask Lake Country (tab 8, p. 62) and a 1913 crown grant shows a waggon
road in the location of the present Penask Road (tab 9, p. 71). There is positive evidence of the
road having been extended to Penask Lake by 1920 (ex. 31). Public funds were spent on this
portion of the road from at least 1903 (tab 3).

2. Prior to 1929 a nice fishing lodge was built on Penask Lake (tab 10) and an egg
collection station was built on Penask Creek. The only access to this and to the settlers in the
Penask Lake Country was by way of the road by then called Penask Lake Road (tab 10).
Public funds were spent on this section of the Road from at least 1930 (tab 10, p. 87).

3. By 1931 the Penask Lake Road was sufficiently well established and recognized to be a
government road that the Ranch applied for an order in council to authorize gates on the road
(tab 11, p. 95). The government absorbed the cost of 52 official notices requiring the gates to be
opened and closed by persons using same (tab 11, pp. 102, 104).

4. There is overwhelming evidence that public expenditures were regularly made on

maintenance, culverts, bridges etc. The cost of maintaining the 4.62 km section renamed Stoney
Lake Road #281 has been conveniently calculated to be approximately $10,000 per year (ex 15,
tab 5, para 7). Payments to the contractor for Stoney Lake Road #281 will continue until June
30, 2019 when the current maintenance contract comes to an end.1

5. However, in about 1990 the grader operators were prevented from working on this
section of road by the placement by the Ranch of a locked the gate that blocked access.2
Notwithstanding this difficulty, the Stoney Lake Road #281 remained in the Road Features
1
Nicola Brief, tab 49, p. 402, section 3.01 and p. 405 Service Area 14: because the cumulative net change to the
daily cost was less than 2% no reduction of payments was made to the contractor during the life of the contract.
2
Affidavit of Theodore Phillip Finnegan, para 5; affidavit of Gary Wayne Watson, para 6 (Nicola Brief of
Affidavits, tabs 3 & 13).
Inventory until June 2012 when the government removed it. The annual payments to the
contractor for Stoney Lake Road #281, however, will continue until June 30, 2019 when the
current maintenance contract comes to an end.3

Trail

6. The only section of the trail to Minnie Lake that is in issue is the section between what is
shown on crown grant for DL 790 as the Road to Quilchena and the natural boundary of
Minnie Lake.

7. The trail was an ancient aboriginal trail used by the indigenous First Nations people from
time immemorial. The area at the outlet of Wasley Creek is a traditional area where members of
the Upper Nicola Indian Band, each spring, would capture mature fish on their way from Minnie
Lake to Wasley Creek to spawn. The fishery at Minnie Lake was noted by in reserve
commission documents in 1880 and 1898 as being fishery of the UNIB people. 4

8. The UNIB people continue to fish in Minnie and Stoney Lake although they are now
constrained to do so with the permission of the Ranch.
Fishery

9. There can be no doubt that both Minnie Lake and Stoney Lake were popular fishing spots
for the general public prior to any engineering by the Ranch. Besides the reserve commission
evidence relating to Minnie Lake, the first three witnesses gave evidence of traditional aboriginal
fishing in both lakes. Minutes of the Club (tab 19) confirm the popularity of Minnie Lake for
fishing.

10. Both lakes were stocked with fish by the Province from time to time (0020). The
Province also showed interest in enhancing the fishery in Stoney and Minnie Lakes by diverting
water through Stoney and Minnie from Quilchena Creek (tab 22). This proposal was declined,
possibly because the Ranch did not welcome the publicity the proposal received (tab 22, p. 174).
Several years later the Ranch became interested in enhancing the Stoney Lake Fishery itself. It
would not likely have done this if it had not already been recognized as a fishery. There was

3
Nicola Brief, tab 49, p. 402, section 3.01 and p. 405 Service Area 14: because the cumulative net change to the
daily cost was less than 2% no reduction of payments was made to the contractor during the life of the contract.
4
Affidavit of Adrian Clark, Exhibits B (1880) and G (1898).
evidence that people would fish from the road which was very close to the waters edge on
Stoney Lake.

11. Although it is not documented, one of the reasons given for the Bypass proposal in 1974
was to move at least some of the public away from Stoney Lake so as to improve the prospects
of a fishing lodge venture that the Ranch had in mind for Stoney Lake.

12. By the mid-1980s the Ranch were systematically intimidating anyone found fishing on
Minnie and Stoney Lakes, even those arriving by aircraft (0307, and ex 19). In January 1990
trespass letters were sent to all those ice fishing charging $25 access fee and $100 fishing fee.
Although Mr. Gardner had taken legal advice from competent solicitors he maintained that the
Ranch owned all the fish in the lakes.
B) A Comment on Witnesses

13. The Club adduced oral and affidavit evidence from indigenous fishers, road maintenance
workers, retired highway managers, members of the public who had fished in the lakes, and Club
members who had attempted to clear the obstructions placed on the Stoney Lake Road by the
Ranch.

14. The Ranch called its former manager, Mr. Woolliams and its current Ranch manager, Mr.
Gardner. Mr. Woolliams confirmed the evidence of the highway manager at the time, Neville
Hope, that the Bypass road was dedicated by the Ranch and accepted as a highway by the
Province. Both said there was no agreement to exchange or swap the new road for the old road.

15. Mr. Gardner accepted that there was no such exchange agreement in the 1970s but did
not explain why he had tried to convince a succession of public servants that there had been an
exchange agreement. He is obviously very persuasive in his dealings with government. By
threats (e.g. tab 34, p. 250) and lies (tab 43, p. 367 road now closed) he gained the
acquiescence of provincial public servants and the RCMP. His overriding motive was to exclude
the public from the lakes by whatever means possible, legal or illegal.

16. Mr. Gardner has exhibited an attitude of utter contempt for public recreational interests
and for any form of governmental regulation. He acts as though the Ranch is above the law. He
placed obstructions at both ends of the Stoney Lake Road #281 with impunity, having somehow
cajoled or threatened enforcement authorities into acquiescence, even assistance. The clearest
example of the privileged and lawless position of the Ranch came when Club members, having
organized a work bee, attempted to clear obstructions from the public road as they were entitled
to do.5 At the Ranchs behest the Regional Director of Highways wrote a sharp letter to the Club
with a copy to the RCMP stating that conducting work on any Ministry right of way without a
permit is prohibited (doc #0577). No such letter was ever sent to the Ranch despite its blatant
disregard of the same regulation. The irony of this was lost on Mr. Gardner.

17. The Ranch, with either the collusion of Ministry officials or without telling them, has
carried out the following unauthorized and illegal activities in its territory:
Obstructing #281 Stoney Lake road at both ends.

Obstructing the Raspberry Road to Pothole Lake and to Quilchena Falls.

Obstructing the Loon Lake Road.

Obstructing the Paradise Lake Road.

Obstructing Crater Lake Road.

Diverting Quilchena Creek and draining of Tommy Lake.

Removing a culvert in the east end of the #281 Stoney Lake Road.

Flooding #281 Stoney Lake Road, both at Stoney Lake and Minnie Lake locations,
without permits.

Changing the road alignment of #281 Stoney Lake road without permits

Harassing numerous persons legally fishing in Minnie and Stoney Lakes, including by
helicopter (Earl Stoessiger affidavit).

Conniving with public servants in 2010-2013 to close a public road without notice,
contrary to known government policy.

Participating in a proposed alienation of the Crown roadbed of the Stoney Lake Road
#281 without notice or consultation with First Nations or anyone else.

5
For the right to abate a public nuisance, see Johnson & Carswell v. Despard (1912), 7 DLR 83.
18. With respect to Mr. Gardners discussions with government, it is evident that the Court
has not been given more than a fraction of the truth. How Mr. Gardner persuaded Sherry Eland
and Darren Lincoln to compromise their public duty by agreeing to quitclaim Stoney Lake Road
to the Ranch remains a mystery. Based on Mr. Gardners alternative facts Ms. Eland
misinformed the Ombudsperson, MLA Harry Lali and Minister Blair Lekstrom as follows in
2011 and 2012:
Both lakes are land-locked by deeded property.

The road is private property (0589, 0571).

An exchange of lands took place in 1976 when the new alignment was built; the road was
closed and exchanged in 1976 (0045).

DLCC has built new private roads as part of their Aquaculture Licence (0555)

No wild fish can enter the system and no captive fish can leave

Minnie Lake and Stoney Lake contain tagged fish that are the property of DLCC under
an aquaculture license issue by MOE (0049)

19. Mr. Gardner knew full well, at latest by the time he met with Al Martin and Jaqueline
Hunter towards the end of 2003, that the water and the fish in the lakes were public and that the
only way he could effectively privatize the fishery in the lakes was to obtain a crown grant of the
roadbed of the Stoney Lake Road #281. Somehow he persuaded Ms. Eland to do this for him.
The Land Act imposes severe constraints on such a grant. The only way open was to
characterize it as a land exchange under s. 11. Both Ms. Eland and Mr. Gardner knew that the
facts did not support this (since the Bypass was a public road by dedication in 1976 so there
was nothing for the Ranch to exchange). They also knew the policy on refusing to tenure crown
lakebed for private fisheries on crown lakes. So Ms. Eland and Mr. Gardner cobbled together a
fiction to disguise a crown grant as an exchange. In July 2013 someone put a stop to it, but no
one has come forward with an explanation for the Court.
C. Expert Witnesses

20. The expert evidence adduced by the Ranch is of no probative value whatever. Both Mr.
Holm and Mr. Lewynsky compromised their professional qualifications by giving evidence that
was clearly result-oriented. They would have the Court believe that both lakes were barren prior
to the Ranchs engineering, but neither of them took the trouble to canvas the oral history of
local First Nations or to do any historical research into the fisheries on the lakes. Mr. Lewynsky
refused to concede that Stoney Lake had an inlet. Mr. Holm said prior to his engagement as an
expert that it was approximately 5 km long (0473), and after his engagement that it was half that.
Although conceding that the elevation of a lake is determined by the elevation of the outlet,
neither would acknowledge that Stoney Lake had an outlet, despite clear evidence from the
earliest air photos.

LEGAL SUBMISSIONS

21. The essence of the dispute in this case concerns public access over land, public rights to
traverse crown water overlaying land owned by the Ranch, and public rights of fishing in the
water in the entirety of Minnie and Stoney lakes.

22. These are legal issues to be determined by the Court, not the opinions of provincial
officials or the Ranch manager.

The Clubs case rests on five propositions of mixed fact and law:

1. Stoney Lake Road #281 is a public road that provides public access to crown water at
two points on each Lake.

2. The portion of the trail shown on a copy of the official plan of District Lot 790 between
the right of way of Stoney Lake Road #281and the natural boundary of Minnie Lake is a
public trail.

3. The water overlaying the submerged road, submerged trail, submerged creek bed and
submerged private land of the Ranch is owned by the Crown for the use of the public,
including the Ranch, and all members of the public are entitled to travel by boat across
the entirety of that water.

4. Neither the Ranch nor the Crown owns the fish that swim free in Minnie and Stoney
Lakes since they are feral creatures that have been released from captivity.

5. The fishery in the entirety of the Lakes is a proprietorial fishery owned by the Crown; it
is held by the Crown in her capacity as parens patriae for the benefit of the public.

These five propositions may be further elaborated as follows:

1. Stoney Lake Road #281 is a public road that provides public access to crown water at two
 points on each Lake.

a. For the reasons set out by the Surveyor General in DLCC doc #0390 the north/south
segment of Stoney Lake Road #281 adjacent to Minnie Lake is a public road with a 33
foot right of way on each side of the centre thread of the actual location of the road at
the time of the crown grant, not necessarily the location as depicted on the official plan
of District Lot 790 (which serves only to indicate the general position).

b. The east/west portion that branches off the north/south portion and skirts the north
natural boundary of Stoney Lake is a public road by reason of expenditures of public
money on it that were not casual or trivial in amount. The width of this portion of the
road would be its travelled width prior to it falling into disuse by reason of
obstructions placed by the Ranch.

2. The portion of the trail shown on a copy of the official plan of District Lot 790 between the
right of way of Stoney Lake Road #281and the natural boundary of Minnie Lake is a public
trail.

a. This was excluded from the crown grant of District Lot 790 for the reasons given by
the Surveyor General in DLCC doc #0390 (retroactive effect of s. 50(1)(c) of the Land
Act, combined with the definition of highway as including trails in every Highway
Act from 1930 on).

b. The designation of trail on the official plan of District Lot 790 is evidence of
intention of a common law dedication by the crown in its role as proprietor to the
Crown in its role as parens patriae. This is further supported by the contemporaneous
acknowledgement by the Crown that Minnie Lake was a traditional aboriginal fishery
open to all members of the public. Had the Crown not intended to dedicate the trail as
a public way there would be no access to that fishery.

c. The trail existed prior to contact and became an easement of necessity6 upon the
inception of common law. No legislation has extinguished the common law doctrine
of dedication; the Transportation Act, SBC 2004, s. 1 highway (e) expressly
acknowledges its continued existence in the law as a method of establishing a trail as a
public way.

d. The location of the trail is its actual location just north of Wasley Creek not
necessarily the location as depicted on the plan and sketches (which serve only to
indicate the general position).

e. The width of the trail would only be its traveled width as confirmed by the Surveyor
General. His opinion is consistent with common law dedication.

f. The bed of the trail is Crown property by reason of s. 5 of the Highways Act, 1930 and
all subsequent legislation up to and including s. 57 of the Transportation Act, SBC
2004, c. 44.

6
See Douglas Lake Cattle Co. v. Holmes, 1995 CanLII 3190, Clubs brief, vol 3, tab 5, para 8(5).
3. The water overlaying the submerged road, submerged trail, submerged creek bed and
submerged private land of the Ranch is owned by the Crown for the use of the public,
including the Ranch, and all members of the public are entitled to travel by boat across the
entirety of that water.

a. The Water Licences issued to the Ranch are for the non-exclusive use of the water.
These licences are analogous to the Ranchs grazing licences in that they do not grant
the Ranch the necessary exclusive possession to support a claim of trespass.7

b. The Crown has not restricted the recreational use of its water in any part of the Lakes.
The interest of the public to traverse Crown water for the purpose of fishing is,
therefore, analogous to the public interest in traversing Crown land for hunting.

c. The only restriction on a person traversing crown waters for the purpose of angling is
the requirement of holding an angling licence in the Wildlife Act, RSBC 1996, c. 488,
s. 12.

d. Even if an argument could be made that anglers cannot assert a common law right of
navigation, they have a de facto or permissive right of navigation by reason of the
Crowns ownership of the water and the Crowns consent that all licensed anglers may
use the water for the purpose of angling.

e. In addition, since the passage of The Hunting and Fishing Heritage Act, SBC 2002, c.
79 a right of navigation exists as a right that is ancillary to the statutory right of fishing
based on the Act. In this respect it is analogous to an easement of necessity.

4. Neither the Ranch nor the Crown owns the fish that swim free in Minnie and Stoney Lakes
since they are feral creatures that have been released from captivity.

a. Fish are not included in the definition of wildlife to which s. 2 of the Wildlife Act
applies. Thus ownership of fish is not vested in the Crown. The common law
principles of ownership, therefore, apply.

b. At common law, animals are classified into two divisions: domestic or tame
(mansuetae naturae), and wild (ferae naturae). Fish are in the latter category. If they
are in captivity, e.g. in a private pond or trunk, the person so confining them has a
qualified (or defeasible) right of property in them. However, when they are released
from captivity and regain their natural liberty without any animus revertendi, any
property right in them ceases. See Campbell v. Hedley (1917), 37 DLR 289 (Club
brief, tab 7). There is no basis for saying they are owned by either the Crown or the
Ranch.

c. There is nothing in the fish farm, aquaculture, fish transfer licences or permits that
gives the Ranch a right of property in cultured fish after they are released into the
lakes. Any misapprehension as to the applicable law by either the Province or the
Ranch cannot change this. The law governs, not the views of interested parties.

7
See Douglas Lake Cattle Co. v. British Columbia, [1990] B.C.J. No. 1599, Clubs brief, vol 3, tab 4.
5. The fishery in the entirety of the Lakes is a proprietorial fishery owned by the Crown; it is
held by the Crown in her capacity as parens patriae for the benefit of the public.

a. In law the fishery is a profit prendre that may exist severed from the soil. Since a
profit prendre, whether severed or not, is an interest in land within the meaning of
the Interpretation Act, RSBC 1996, c. 238, s. 29 and the Land Act, s. 1, the right of the
Crown to alienate it is constrained by the provisions of s. 11 of the Land Act. See
Coniagas Farms v. BC (1973), 77 BCLR (2d) 165 (Clubs brief, tab 8).

b. For reasons of history and the unique circumstances in British Columbia the Crowns
profit prendre in the freshwater fisheries of the Province is severed from the soil and
retained by the Crown as a profit prendre in alieno solo. It is an incorporeal
hereditament held by the Crown for the benefit of the public. See R. v. Nikal [1996] 1
S.C.R. 1013 at p. 1052-1052, particularly para 80. As a result, any crown grants of
title to land must be taken as excluding the fishery

c. There is no basis for an argument that the crown grants for lands above the natural
boundary of District Lots 790 and 685 should be construed as including a grant of a
fishery. The crown grant was of dry land only. The covering of the land by water
cannot create a profit prendre where none existed before, particularly when the
Crown owns the water and has, in all its manifestations since colonial times, held the
fishery as a profit prendre severed from the soil for the benefit of the public.

d. In addition, since the passage of The Hunting and Fishing Heritage Act, SBC 2002, c.
79 a statutory right of fishing exists based on the Act. Thus, even if no prerogative act
of the Crown exists to enable the public to exercise the Crowns right of fishery, a
legislative act now requires servants of the Crown to permit the public to freely
exercise the Crowns right of fishery in Minnie and Stoney Lakes subject only to the
holding of an angling licence. See Coniagas Farms v. BC, supra , at paras 26 and 27.

e. It is important to appreciate that the Crown has two roles or capacities: its role as
owner and its parens patriae role as representative of the collective interests of the
public. Both roles are in play with respect to public roads, waters and resources.
Ownership of such public rights became vested in the Crown as at the date of
sovereignty (1846), as did authority to enforce public rights of use. In this litigation,
the role of protecting public rights has fallen to the Club by default. See BC v.
Canadian Forest Products, 2004 SCC 38, paras 63 to 83 (Clubs brief, vol 3, tab 3).

Discussion

A: The Role of the Club in this Action for Public Nuisance

23. This litigation was commenced by the Club by way of Petition in April 2013. A month
later the Ranch commenced a separate proceeding by way of Notice of Civil Claim. Upon an
application by the Ranch and supported by the Province, the Court ordered that the Clubs
Petition be converted to an action and that the Club file a Notice of Civil Claim, which the Club
subsequently did.

24. However, current counsel for the Club concluded that such an action by the Club was
irregular since the remedy sought was for interference with public rights. As put by McLachlin
J. (as she then was) in Stein v. Gonzales (1984), 14 D.L.R. (4th) 263 (B.C.S.C.):

[p]ublic rights, including claims for public nuisance, can only be asserted in a civil
action by the Attorney-General as the Crown officer representing the public (p.265).

It is the Attorney-General who is entrusted and charged with the duty of enforcing
public rights (p. 268).

25. For that reason a draft of the Clubs proposed Amended Notice of Civil Claim was, on an
ex parte basis, delivered to the Attorney General with an application for consent to the use the
name of the Attorney General in a relator action conducted and paid for by the Club.

26. The jurisprudence indicates that the Attorney General has a discretion in the matter and
that the discretion ought not to be exercised in a way that would raise an obstacle to a litigant
who wishes to enforce a public right. In Affleck and McCandlish v. City of Nelson, (1957) 10
D.L.R. 442 (B.C.S.C.) Mr. Justice Wilson said:

I think that the Attorney General might well, in this matter, have adopted the attitude
of his predecessor in office in Attorney General (on the information of Anderson) v.
Victoria (1884), 1 B.C.R. 107, Pt. 2. There the Attorney General sanctioned the use of
his name but announced that he would not interfere in any way - not actively - to urge
the illegality of the proposed erections, nor negatively by forbidding the use of his
name to the plaintiff on proper terms, since such negative interference would tend to
impede the trial of the right. I suggest that this is, in civil matters, unless the Attorney
General considers the action entirely frivolous, the proper attitude.

27. The very limited role that the Attorney General may play in a relator action was
explained by Aikins J. in Re Save Our Parkland Association et al. (1964), 50 WWR 92 (which
involved an alleged wrongful approval of a subdivision plan by the Vancouver Registrar of
Titles) as follows:

On the application for certiorari coming on for hearing on the same day, E. A.
Alexander, Q.C., appeared for the Attorney-General and stated the position taken by
the Attorney-General as follows: Mr. Alexander said that if it appeared to the judge
hearing the application for certiorari that the application could not be heard at all
 unless the Attorney-General was joined, then he, Mr. Alexander, was instructed by the
Attorney General to lend the Attorney Generals name to the proceedings so that the
matter might be heard, but that he, Mr. Alexander, was instructed to take no part in the
proceedings either in support of or in opposition to the application. All counsel
concerned were unanimous in expressing the view that the motion for certiorari could
not be heard unless the Attorney-General was joined by lending his name to the
proceedings, the reason being no one of the applicants was affected adversely by the
approval of the subdivision plan to an extent any greater than the approval affected
members of the public at large. On this point I was referred only to Affleck v. Nelson
(City) (1957) 23 W.W.R. 396 and the authorities therein referred to. However, I
reached the conclusion that submissions of counsel on this point were sound and that
the application could not go forward without the Attorney-General lending his name to
the proceedings. Then, Mr. Alexander consenting, the Attorney-General was joined on
the limited basis which I have already stated.
The case was thereafter captioned: In the Matter of an Application by the
Attorney-General for British Columbia ex rel Save our Parkland Association,
Allan Mercer and Charles H. Wills for a Writ of Certiorari, as is disclosed on
the Court Registry File.

28. See also Re British Columbia Wildlife Federation and DeBeck et al., (1977) 1 B.C.L.R.
244 (B.C.S.C.). In that case the Attorney General for British Columbia lent his name to the
proceedings to ensure that the applicants possible lack of standing would not prevent the hearing
of their case. The Attorney General, in the traditional way, took no position in the action. Based
on a short statement to the Court by Mr. E.R.A. Edwards from the Attorney Generals office, the
Court said:

2 The Attorney-General was added as an applicant at the commencement of

proceedings but only for a limited purpose. There being some question as to the status
of the other applicants to bring on the motion, the Attorney-General loaned his name
to the proceedings to ensure that any lack of status would not prevent a hearing on the
motion. He took no position on the application. See Re Save Our Parkland Association
et al., [1964] 50 W.W.R. 92 at 93.

29. A similar approach was taken in the case of Attorney General (ex rel. BC Wildlife
Federation et al.) v. Wale. In this case Mr. E.R.A. Edwards did not appear in the trial court but
instead instructed the counsel acting for the relators to inform the court that the Attorney General
took no position but consented to the use of the Attorney Generals name to the proceedings to
ensure that any lack of status would not prevent a hearing.

30. Attorney General v. Wale concerned an interference with an alleged public fishery in the
Bulkley River at Moricetown, BC.8 An interlocutory injunction was granted to restrain the
interference. On appeal the decision was upheld by the BCCA and SCC and became a leading
case in the law relating to interlocutory injunctions. Wale v. British Columbia (Attorney
General), [1991] 1 SCR 62, 1991. The case never proceeded beyond the interlocutory injunction
stage since the issue shortly thereafter was raised in a criminal case, R. v. Nikal, a case that went
all the way to the SCC and confirmed the position taken in AG v. Wale that the fishery in the
river was public, not private.

31. There has been some discussion as to whether the Attorney Generals name is still
required to enable a private citizen to enforce public rights, but the common law appears not to
have moved off its traditional position in this matter. In some of the cases cited above, the Court
suggested that if the Attorney General declined to permit the use of his or her name in relator
proceedings the plaintiffs should be permitted to proceed on their own. Begbie J. put it most
strongly as follows in Attorney General (on the information of Anderson) v. Victoria (1884), 1
B.C.R. 107:

It would, in my opinion, have been most improper in the Attorney General to have
thrown any impediment to prevent the applicant from doing this. I conceive that any
opposition on his part to the use of his name would have been quite unprecedented,
and so, in a sense, unconstitutional; for a Minister of the Crown has no right to exert
his influence except according to the accustomed methods. Whenever any question
arises in which a civil right or remedy is sought by any individual, however humble,
against any other person, however exalted, even the Crown, or against any corporation
or body of men, however influential, it is the plain duty of the Attorney General, as of
every person in authority -- or course, receiving a proper indemnity as to costs -- to act
entirely without regard to any political or other influences, and to leave the doors of
the established tribunals entirely open and unobstructed -- nay, to remove any real or
fancied impediments in the approaches to such tribunals. And though there is, of
course, no precedent for such a case, it is probable that if any Minister should so far
forget his duty and attempt to misuse his power, then the Court might hold that any
individual inhabitant might sue on behalf of himself and all.

32. In a more recent decision, Mr. Justice Murray, in the Supreme Court of British Columbia,
suggested that Begbie C.J.s reasoning in this regard might be invoked by a court to confer status
on persons who would ordinarily have no status to bring an action. See Islands Protection
Society et al. v. The Queen in Right of British Columbia (1979), 11 B.C.L.R. 372. See also

8
The trial judgment appears not to have been reported, but the appeal judgment is at 1986 CanLII 171 (BC CA),
British Canadian Securities v. Victoria , (1911) 16 B.C.R. 441 (B.C.S.C.), where Gregory J. at
444 appears to suggest that the Attorney General can be made a party without his consent if it is
manifest that the public interest would otherwise suffer. However, in Gouriet v. Union of Post
Office Workers, Lord Wilberforce said that there is no authority for this proposition and in my
opinion it is contrary to principle.9

33. In the result, the Attorney General, declined the Clubs request without reasons. In those
circumstances, the Club abandoned its separate action and amended its counterclaim in the
Ranchs action , adding the Attorney General as a party defendant to counterclaim. In its Further
Amended Response to Counterclaim, counsel for the Crown and AGBC stated:
3. In response to paragraph 8, generally only the Attorney General has
standing in cases of public nuisance concerning public rights, however, in this
case the Attorney General does not oppose the standing of the Defendant
Nicola Valley Fish and Game Club to raise these issues.

34. The Ranch opposes the relief sought by the Club but has not advanced any argument
respecting the Clubs standing to enforce public rights.

B: Issues in the Case

35. The Crown in this litigation asserts its proprietorial rights as owner of the road, creek
bed, lake bed and fishery in the Lakes, but it has entirely abdicated its duty as parens patriae to
protect and enforce pubic rights.10 That is a further example of conduct by the Province that the
Club finds inexplicable and unacceptable. The Club has had to shoulder the burden of enforcing
public rights itself. This case is not about the rights of the Club or its members. It is about the
rights of all members of the public.11

36. The Club says that the actions of the Ranch constitute a plain and obvious public
nuisance. An obstruction of a public right of way is a classic case of public nuisance. So is
interference with public rights of fishery.

C. Road Issues
9
(1978) A.C. 435 (H.L.) at 483
10
For a useful discussion of the dual role of the Crown as owner of property rights and as parens patriae with respect
to public rights see British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38 (BC v. Canfor)
11
The Club intends to return to this subject after judgment in its application for special costs.
37. Section 42 of the Transportation Act provides that if public money is spent on a
travelled road that is not a highway, the travelled road is deemed and declared to be a highway.
The test established by the jurisprudence is that the expenditure has to be above what is casual
or trivial. Although this is sometimes referred to as substantial the statute refers only to
money spent and the case law has only disqualified money spent that is casual or trifling. See
Emmett v. Arbutus Bay Estates Ltd., (Clubs brief, vol. 3, tab 7) para 56; Silver Estates Ltd. v. BC
(Clubs brief, vol. 2, tab 24) and Skutnik v. BC (Clubs brief, vol. 2, tab 25).

38. Stoney Lake Road #281 has been a back country public highway since the early years of
the last century. A crown grant in 1913 beyond Stoney Lake shows waggon road in the
location of the Penask Lake Road. That road has been maintained for decades, and funds are still
being spent on it under a maintenance contract even though the contractor cannot gain access. It
would be impossible to characterize the expenditures on it as casual or trivial. The rule is: once a
highway, always a highway.

39. The Bypass Road is a classic case of common law dedication. It was dedicated by the
Ranch for two reasons: to keep some of the public away from Stoney Lake and to provide a more
solid road base for logging trucks, and the dedication was accepted by the Crown. The
dedication was a full 66 foot right of way. All this was expressly agreed.

40. The legal status of the Bypass Road is relevant in this case only to assist in the proper
characterization of the scheme devised by the Ranch and Ms. Eland to exchange this section of
road for closure of the Stoney Lake Road, the Loon Lake Road and the Raspberry Lake Road.
Such an exchange cannot be based on a purported agreement to do so in the 1970s. Nor can it be
based on any public purpose. It is plainly a scheme hatched solely for the benefit of the Ranch to
get around the legal constraints on disposing of Crown property. See s. 11 of the Land Act.

D. Fishery and Lake Issues

41. It is submitted that the original size of the Lakes as compared to the current engineered
size of the lakes is irrelevant to the rights of navigation and fishing claimed in the Clubs
counterclaim. Since the Ranch has conveniently established four access points, two to each lake,
from a public road, every member of the public has the right to enter the water by boat or by foot
along the submerged roadbed. Once lawfully in or on the water, a right to traverse the water for
recreational purposes exists based on the common law as modified by local legislation pertaining
to Crown ownership of water and the fishery in it.

42. Like all shared rights, the right in the public to traverse the water must be exercised in a
manner so as not to unreasonably interfere with the Ranchs non-exclusive right to the use of the
water, the lakebed of the enlarged perimeter of the lake (which it owns) and its right to traverse
upon and fish in the lake. All this is governed by the usual principles of the law of nuisance.
The Ranch cannot unreasonably interfere with the rights of the public, and members of the public
cannot unreasonably interfere with the rights of the Ranch.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Dated: 1 February, 2017 _______________________________________
Counsel for the Applicant
CHRISTOPHER HARVEY, Q.C.