backcountry injunctions 

By Loreth Beswetherick A British Columbia Supreme Court judge has thrown a spanner into the workings of a provincial process currently underway to try and regulate commercial backcountry operations in the Sea to Sky area. Justice Chamberlist handed down a judgement Thursday last week that ruled a Whistler operator who does not have a commercial recreation tenure is not in trespass on Crown land that has already been tenured to the Cougar Mountain at Whistler operation. The B.C. Assets and Lands Corporation, which is responsible for overseeing and managing the commercial backcountry recreation tenure process, has now referred the judgement to the Attorney General's office and is awaiting direction. The battle that has spilled from the bush of the 16 Mile Creek drainage area into the courtroom is symbolic of the frustrations being experienced by operators with a confounding provincial process that has been in the works for more than 10 years. Cougar Mountain, on the advice of BCAL lawyers, had filed for an injunction July 16 to stop Outdoor Adventures @ Whistler from running unauthorized ATV tours in the 5,200-hectare tenure granted to the company by BCAL April 30 last year. Cougar Mountain runs its own ATV tours in the area — along with other activities — and pays per head to the Crown for the privilege. In the injunction application Cougar Mountain legal counsel maintained Outdoor Adventures was in trespass, interfering with clients, creating conflict situations, damaging the environment and stealing business. Cougar Mountain director John Spencer Nairn said the unauthorized tours make a mockery of the tenure they spent $75,000 to get. "We are not fighting Outdoor Adventures in particular. We are just trying to prove a point. Competition is good for business but there has got to be a level playing field," he said. "We paid the Crown over $100,000 in the last year for the past winter's operations, for this summer and for next winter in advance based on projections per head," said Spencer Nairn. "We are investing in the area. Every penny we have made has gone back into the business." Spencer Nairn said it appears BCAL is pushing off enforcement issues onto the private sector. "We took the action because Lands had issued cease and desist orders which were being ignored and they didn't follow up on them." Spencer Nairn said Cougar Mountain asked BCAL for advice on how to seek remedy. "They got counsel from their lawyers in Victoria who told our counsel to seek an injunction under article 65 of the Lands Act which gives us the right to protect it against trespass." Outdoor Adventures counsel, however, argued the province had specifically stated commercial recreation tenures are not exclusive and overlapping tenures are possible. Lawyers also argued Cougar Mountain did not have a history of running ATV tours in the area and had thus obtained tenure for this particular activity through fraudulent representation. Outdoor Adventures has applied for a tenure in the same area and has been running ATV tours there since 1996. Cougar Mountain has been doing business in the 16 Mile area since 1985. "All I want to do is operate," said Outdoor Adventures owner George Meilleur. "That's what I have been doing for four years. I have put my tenure application together which was very expensive and it cost me a fortune to fight this injunction. This is not fun whether you win or loose," said Meilleur. But he, along with about 30 other Corridor operators who have applied for tenure will now have to wait until at least some time in the year 2000 for word from BCAL. All applications in the Sea to Sky area are currently on hold pending the outcome of a study designed to set caps on certain activities in designated commercial recreation zones. That study is due to wrap up by Dec. 31. The B.C. Assets and Lands Corporation has stated that in the meantime, any operators running commercial recreation businesses on Crown land without a tenure are deemed to be in trespass and are expected to shut down. The court decision, however, undermines this position. BCAL has purposefully turned a blind eye to operations not in conflict with existing uses, but in Outdoor Adventure's case the Crown corporation had issued cease and desist orders and threatened Meilleur with a $20,000 fine or six months in prison for trespass. The judge's decision overrules those threats, at least for now. BCAL commercial recreation co-ordinator Elisabeth Eldridge will not comment on the Supreme Court decision until the Attorney General's office reviews the judgement. "We are sensitive to the fact people are investing a lot of time and money setting up businesses and in certain situations, certainly where there are no complaints and there is no interference or impact on existing resources we have allowed them to operate without tenure," said Eldridge. She said the new strategy which will set limits on activities — like motorized access — should help redress situations like the one at Cougar Mountain. It will provide a backdrop against which to assess tenure application in terms of the Commercial Recreation Policy adopted in May 1998. "Implementation of the policy is a long process and we are working towards a long-term strategic plan that includes all parties and that takes time. We are basically trying to correct years of problems and conflicts." Eldridge said the political will and resources are now in place and there is light at the end of the tunnel. Justice Chamberlist, in his reasons for judgement, said the rights which usually accrue to a person occupying Crown land with authorization do not apply in this case because the BCAL tenure granted Cougar Mountain specifically does not entitle the operator to exclusive possession of the operating area. "The plaintiff has not acquired the right to impede persons coming on the property... this is one of the rights that would normally accrue to a registered owner and it has specifically been excluded in the licence." The judge acknowledged Cougar Mountain has increased costs as a result of its tenure arrangement with the Crown, and the absence of these costs to Outdoor Adventures gives them an unfair advantage, but he felt this was not reason alone to justify injunctive relief. "The Crown reserved the right onto itself to contract with other users," said Chamberlist. He also ruled that while Cougar Mountain may be losing business as a result of the competition, there is nothing to indicate not granting an injunction would put Cougar Mountain out of business. On the other hand, an injunction would, "in all probability," put Outdoor Adventures under. Charles Littledale, regional manager for BCAL, said he expects a decision from the Attorney General in about three weeks. "We will see what unfolds after review of the judgement." Chamberlist said it was not necessary to deal with the fraud argument put forward, indicating that could be fought out in a separate civil case. Both Spencer Nairn and Meilleur are now waiting for BCAL to make the next move. Other operators are watching. Spencer Nairn said it is up to BCAL to take enforcement action. Meilleur said he will keep on operating. If his tenure application is turned down because of a new limit set on motorized access in the 16 Mile area, he will fight that decision in court. "I have no choice. If BCAL decides there is only room for one ATV operator, they have been warned by my consultant, many months back, that we will pursue it on the grounds that it should have been Outdoor Adventures that got tenure for ATVs in that area, not Cougar Mountain."


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