Members of the Kamloops Fly Fishing Association and others v. BC Ministry of Environment and Climate Change Strategy, 2024 BCHRT 208
Date Issued: July 18, 2024
File: CS-001244
Indexed as: Members of the Kamloops Fly Fishing Association and others v. BC Ministry of Environment and Climate Change Strategy, 2024 BCHRT 208
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Members of the Kamloops Fly Fishing Association, Kamloops & District Fish and Game Association who are physically disabled, including on the basis of age, and the Complainants in Complaints 19101, 19084, 19104, 19128, 19126, 19135, 19000, 19007, 19020, and 19107
COMPLAINANTS
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Environment and Climate Change Strategy
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
Agent for the Complainants: Leonard P. Piggin
Counsel for the Respondent: Justin Mason
I INTRODUCTION
[1] The Complainants are elderly and have physical conditions commonly associated with aging. They filed human rights complaints against the Ministry of Environment and Climate Change Strategy, which is responsible for provincial parks in British Columbia. They allege that the Ministry discriminated against them, based on their age and physical disabilities, by preventing them from using certain types of boats to fish on Paul Lake, in Paul Lake Provincial Park [the Park ]. The Ministry installed bollards on a boat launch on the lake, which prevent larger, “trailered” boats from using the launch. The Complainants say they cannot use smaller, “car-top” boats, due to their age-related disabilities.
[2] The Ministry denies discriminating. It says there is no connection between the boat launch and the Complainants’ age or disabilities. It says it provides opportunities for the Complainants to fish on Paul Lake without using trailered boats, and to use trailered boats to fish on other lakes nearby. It argues that allowing trailered boats to use the boat launch on Paul Lake would constitute undue hardship.
[3] The Ministry applies to dismiss the complaint under s. 27(1)(c) of the Human Rights Code. It says the Complainants have no reasonable prospect of proving they experienced an adverse impact in a service or facility administered by the Ministry. Even if the Complainants did experience an adverse impact, which was connected to their age and disabilities, the Ministry says it is reasonably certain to prove the impact was justified, because allowing larger boats to use the boat launch would conflict with and undermine the Ministry’s obligation to balance various interests in managing the Park.
[4] The Ministry also applies to dismiss the complaint under s. 27(1)(b), because it does not describe facts which, if proven, could breach the Code, and under s. 27(1)(d)(ii), because proceeding with the complaint would not further the purposes of the Code.
[5] For the following reasons, I find the complaint has no reasonable prospect of success, and I dismiss it. The Ministry is reasonably certain to prove that it would incur undue hardship if it allowed trailered boats to use the boat launch, because that would undermine the Ministry’s obligation to balance the various interests that it must address in managing the Park.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[7] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[8] The Ministry of Environment and Climate Change Strategy is responsible for provincial parks in British Columbia, including the Park. Within the Ministry, BC Parks and Conservation Officer Service Division [BC Parks] sets direction and policy for provincial parks and other protected areas.
[9] The Kamloops Fly Fishing Association [KFFA] and Kamloops & District Fish and Game Association [KDFGA] are non-profit societies whose members have an interest in fishing in the Kamloops region. Some of their members have been fishing at Paul Lake for over 60 years. Others moved to the region and started fishing at the lake recently.
[10] In 2019, several members of KFFA and KDFGA filed individual human rights complaints, alleging that BC Parks’ failure to make Paul Lake accessible to trailered boats was discriminatory. Around the same time, KDFGA filed a group complaint on behalf of its members with physical disabilities, and KFFA filed a group complaint on behalf of all its members, making similar allegations. At a case management conference on December 3, 2019, the Complainants accepted the Tribunal’s suggestion that their complaints should be consolidated, with Leonard P. Piggin, President of KFFA, as the representative complainant. In accordance with the Tribunal’s direction, Mr. Piggin then filed an amended complaint, on behalf of all the Complainants.
[11] The Complainants say BC Parks has prevented them from using their preferred way of fishing in Paul Lake, which is to use trailered boats. Trailered boats are boats that, due to their size and weight, cannot be transported on the roof of a passenger vehicle. They are usually transported over land on a trailer hitched to a vehicle. Most motorboats are trailered boats. By contrast, car-top boats are small and light enough to be transported on the roof of a passenger vehicle. Car-top boats include most canoes and kayaks, and some inflatable boats, rowboats, sailboats, and bass boats, which are lightweight motorboats used for recreational fishing. In order to use a car-top boat, a person must lift the boat off the top of their vehicle and place it in the water. Then when they are done using the boat, they must lift it back onto the top of their vehicle.
[12] The Complainants say it is difficult or impossible for them to use car-top boats. They have physical conditions that are commonly associated with aging, such as arthritis, back and joint problems, reduced strength, and difficulties with balance. As a result of these conditions, some of the Complainants are unable to lift their boats off the top of their vehicles, or move their boats from the ground or water back onto their vehicles. Some of the Complainants say they cannot safely use car-top boats at all, because they have conditions that affect their balance and agility. They say car-top boats are not sufficiently stable in the water, and strong winds could blow them off balance. These Complainants say they can only use trailered boats, which are more stable and less likely to tip.
[13] The Complainants say it is possible for young, fit people to reach any part of Paul Lake using a car-top boat. But since the Complainants cannot safely use car-top boats, they could only access the deeper parts of the lake if they used trailered boats. They say the deeper parts of the lake are where they are most likely to catch kokanee salmon, the most sought-after fish in the lake. They say most other lakes in the region do not have kokanee. The Ministry does not appear to deny this.
[14] The Complainants provide little information about what makes kokanee so sought-after. One of the Complainants, in their sworn statement, asserts that it is better table fare than other species of fish.
A. Paul Lake and the Park
[15] Paul Lake is in the Thompson-Nicola Regional District, about a 30-minute drive northeast from Kamloops. The Park occupies much of the northwest and southeast shores of Paul Lake, but it does not completely surround the lake. Some of the land on the southwest shore consists of private residences. On the northeast shore is reserve land of Tkʼemlúps te Secwépemc (Kamloops Indian Band) [Tkʼemlúps]. The Ministry says the lake is a sensitive fishery and a source of drinking water for Tkʼemlúps. The parties agree that Tkʼemlúps opposes the use of high-speed motorboats on Paul Lake.
[16] The Park was established in 1961. It has a campground and a day-use area, and it offers activities including swimming, hiking, fishing, and boating.
[17] There is a publicly accessible boat launch in the Park [the Boat Launch]. BC Parks has installed bollards on the Boat Launch. The Ministry says the purpose of the bollards is to prevent trailered boats from using the Boat Launch, while allowing small or narrow car-top boats to use it. The Ministry says BC Parks has never established a trailered boat launch at the Park. It says that before the bollards were installed, BC Parks used other methods to prevent trailered boats from using the Boat Launch, including large boulders or concrete slabs that blocked large boats.
[18] BC Parks has a formal management plan for the Park. The Ministry says management plans provides a framework for decision-making, and aim to ensure the long-term sustainability of provincial parks, in terms of visitor experiences, cultural values, and the natural environment. The Park’s management plan was created in 1996. In 2022, the Ministry released a new draft management plan for public review. As of April 2023, when the Ministry filed this application to dismiss the complaint, the new plan had not yet been finalised.
[19] The 1996 management plan says BC Parks decided to restrict trailered boat access to Paul Lake in order to discourage large boats on the lake. It says large boats are more likely to create conflict with other users of the Park, and to have negative effects on the environmentally sensitive foreshore of the lake. The draft 2022 plan says the Park will retain the Boat Launch with the bollards, to avoid an increase in large, fast motorboats. It says this serves both environmental and recreational purposes, since motorboats have an impact on safety and quiet in the Park.
[20] The Ministry says it provides access to fishing on Paul Lake, for people who are unable to use car-top boats, by way of a wheelchair-accessible dock. But the Complainants say the dock only allows fishing access to about 110 square meters (or about 1200 square feet) of the surface area of the lake, which has a total area of over 268 hectares. They say the dock does not provide fishing access to the deeper parts of the lake, where the kokanee salmon are found.
[21] The Ministry says that allowing trailered boats to use the Boat Launch would require more than simply removing the bollards. It says the Park in general, and the Boat Launch in particular, were not designed for use by trailered boats. It says the ground around the Boat Launch is mucky, and if trailered boats were to start using it, the ground would need to be hardened, by laying down concrete. The Ministry also says the Park’s parking lot was not designed for trailered boat access, and it is not large enough to fit trailers. If trailered boats started accessing Paul Lake from the Park, the Ministry says land would need to be cleared to increase the size of the parking lot. Allowing trailered boat access could also require changing the placement of the Boat Launch, which may be too steep for some trailered boats. If the Boat Launch had to be relocated, the Ministry says that could result in moving the wheelchair-accessible dock, to ensure there is sufficient space in the water for flotation of a boat coming off a trailer at the Boat Launch. It says this process would require environmental assessments and consultations with stakeholders, and would take years.
[22] The Ministry says there are numerous lakes near Kamloops that have boat launches that accommodate trailered boats, including other lakes in other provincial parks. The Complainants acknowledge this. They say Paul Lake is the only lake in the region where there is a boat launch that does not accommodate trailered boats.
B. Proposal for a speed limit
[23] Although the bollards on the Boat Launch prevent trailered boat access to Paul Lake from the Park, numerous trailered boats use the lake. The Complainants say there are approximately 300 people living in the private residences on the southwest shore of the lake [the Residents ], and about 100 trailered boats associated with these residences. The Residents do not use the Boat Launch. They have access to private facilities for launching boats. The Complainants say it is unfair that the Residents can use trailered boats on the lake, but the Complainants cannot.
[24] The Ministry does not deny that the Residents use trailered boats, including large, high-speed motorboats, on Paul Lake. It says it does not control access to the lake from private property.
[25] The Complainants provided a letter from Tkʼemlúps’s Office of the Chief, which says Tkʼemlúps supports the Complainants’ proposal for a trailered boat launch in the Park, subject to certain conditions, including that the launch should be used only for small, low-speed boats. The letter says Tkʼemlúps is concerned about larger boats using the lake, and wants high-speed boats to be prohibited.
[26] The Complainants say the Ministry could allow trailered boats to use the Boat Launch, while respecting Tkʼemlúps’s wishes and the environment, by implementing a speed limit for all boats on Paul Lake. But the Ministry cannot impose a speed limit unilaterally. The parties agree that this type of restriction can only be imposed by the federal government, which has jurisdiction over navigable waters, under the federal Vessel Operation Restriction Regulations [the VORR ].
[27] The VORR allows local authorities, including municipal or regional governments, or departments of provincial governments, to request speed limits on navigable waters, if certain conditions are met. The Complainants say speed limits have been imposed under the VORR on 61 waterways in British Columbia, including lakes and rivers. They say there is no reason to doubt that a speed limit would be effective on Paul Lake, and the Ministry should make a request under the VORR for a speed limit on the lake. The Ministry says municipal and regional governments are in the best position to make such requests. It says it has never requested a speed limit under the VORR, for any body of water in a provincial park.
[28] The Complainants contrast the situation at Paul Lake to other lakes in the region, which have boat launches that accommodate trailered boats. In particular they point to Lac Le Jeune, in Lac Le Jeune Provincial Park, about a 30-minute drive southwest from Kamloops. They say Lac Le Jeune has many of the same environmental features as Paul Lake, and Lac Le Jeune Provincial Park offers a boat launch that accommodates trailered boats. They say Lac Le Jeune has a speed limit, under the VORR , and the speed limit is an effective way to manage and address environmental concerns, without prohibiting trailered boats. The Ministry acknowledges there is a speed limit on Lac Le Jeune, but says it did not request the speed limit.
[29] The Ministry says BC Parks does not offer a uniform menu of recreational services in every provincial park. Some parks have lakes with trailered boat launches, while others have lakes with no launch at all. Similarly, some parks have ample recreational infrastructure, such as campsites, docks, and trails, while other parks have no recreational infrastructure. The Ministry says not all forms of outdoor recreation are compatible with its obligation to preserve the natural environment in parks and other protected areas.
[30] The Ministry says that even with a speed limit in place, allowing trailered boats on Paul Lake would increase the likelihood of more and larger boats using the lake, which would increase the risk of shore erosion and other environmental problems.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[31] The Ministry applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The onus is on the Ministry to establish the basis for dismissal.
[32] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[33] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[34] To prove their complaint at a hearing, the Complainants would have to prove they have characteristics protected by the Code , they were adversely impacted in a facility or service customarily available to the public, and their protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Ministry to justify the impact as a bona fidereasonable justification under the Code. If the impact is justified, there is no discrimination.
[35] The Complainants say they are unable to fish on all areas of Paul Lake without trailered boats. They want to fish for kokanee salmon, but they cannot get to the kokanee without a boat, and they cannot safely use car-top boats. They say this is an adverse impact on them, and it is connected to their protected characteristics in that they are unable to use car-top boats due to their age-related physical disabilities. They say the Ministry is responsible for this adverse impact because BC Parks installed bollards at the Boat Launch, which prevent the Complainants from using trailered boats.
[36] The Ministry does not deny that the Complainants have age-related disabilities. Nor does it deny that the Complainants are unable to safely use car-top boats to fish in Paul Lake, because of their age-related disabilities. But the Ministry says the Complainants have no reasonable prospect of proving they experienced an adverse impact in a service or facility that is customarily available to the public, or a connection between the alleged adverse impact and their protected characteristics.
[37] The Ministry also argues that the complaint has no reasonable prospect of success because any adverse impact on the Complainants is justified under the Code. In an application under s. 27(1)(c) based on a defence to the complaint, a respondent must establish that it is reasonably certain to prove the defence at a hearing: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
[38] Section 8(1) of the Code prohibits discrimination in any service or facility that is customarily available to the public, unless there is a bona fide and reasonable justification. To establish a bona fide and reasonable justification, the Ministry must demonstrate that its actions were based on a standard (which may mean a rule, requirement, policy, procedure, practice, norm, etc.), and: 1) it adopted the standard for a purpose rationally connected to the function it performs; 2) it adopted the standard in an honest and good faith belief that the standard was necessary to the fulfillment of that purpose; and 3) the standard is reasonably necessary to the accomplishment of that purpose. This third element encompasses the Ministry’s duty to accommodate the Complainants to the point of undue hardship:British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 SCR 868 [Grismer] at para. 20.
B. Do the Complainants have no reasonable prospect of proving they experienced an adverse impact in a service customarily available to the public?
[39] The first issue to be addressed is how to define the service or facility at issue in this complaint. Defining a service inappropriately risks obscuring and perpetuating barriers to equal access to public life, yet the obligation of service-providers to comply with the Code is grounded in the particular service they provide: Yaniv v. Various Waxing Salons (No. 2) , 2019 BCHRT 222 at para. 23.
[40] The Complainants want the Boat Launch to be made accessible for trailered boats. Their argument that they should be able to use trailered boats on Paul Lake implies that it is discriminatory for the Ministry to prevent them from accessing all areas of the lake. This suggests that the service at issue is not just access to the Boat Launch, but access to fishing on all areas of the lake. There is no dispute that members of the public have access to the Boat Launch, and may fish on all areas of the lake, but only if they use car-top boats.
[41] The Ministry disputes the Complainants’ framing of the service at issue. The Ministry says a proper characterisation of the service or facility at issue in this complaint must consider all the recreational fishing opportunities that it provides, not just in the Park, but throughout the Kamloops region and the province.
[42] The Ministry says it provides services via BC Parks under several laws, but these laws do not list the mandate or purposes of BC Parks. The Ministry says the services that BC Parks delivers are set out in its mission statement, which says its mission is to “protect representative and special natural places within the province’s Protected Areas System for world class conservation, outdoor recreation, education and scientific study.” The mission statement goes on to highlight the importance of reconciliation with Indigenous Peoples, protecting the environment for future generations, and providing high quality outdoor recreation that is compatible with protecting the natural environment. The mission statement says this means BC Parks must balance between protecting the environment, providing outdoor recreation, and supporting reconciliation.
[43] The Ministry says the Complainants are not precluded from meaningful fishing opportunities at the Park, or on other lakes in the region. There is no dispute that the Complainants can fish, using trailered boats, on other lakes in other provincial parks. On this basis, the Ministry says the complaint should be dismissed because the Complainants have no reasonable prospect of proving they experienced an adverse impact in the services they received from BC Parks.
[44] The Complainants say the Ministry’s argument that they can fish in other lakes, where boat launches accommodate trailered boats, should be rejected. They say it is analogous to a grocery store without a wheelchair ramp telling wheelchair-users to shop at a different, more accessible store. The Ministry rejects this analogy. It says the comparison with a grocery store is not apt because even if the Complainants may eat some of the fish they catch, they do not rely on fishing at Paul Lake to provide food for themselves and their families. More generally, the Ministry says provincial parks do not provide services in the same way that stores do. As the Ministry explains, it does not offer a uniform menu of recreational opportunities at every provincial park.
[45] Even if the service at issue in this complaint is characterised in a way that considers the variety of fishing opportunities available to the Complainants in other provincial parks, as the Ministry argues it should be, I am not persuaded that the Complainants would have no reasonable prospect of proving they experienced an adverse impact regarding that service. The Complainants want to fish for kokanee salmon. They say there are few lakes where they can fish for kokanee, other than Paul Lake, and they need trailered boats to access the areas of Paul Lake where the kokanee are. In the materials before me, the Ministry does not deny any of this.
[46] The Ministry does not address the Complainants’ interest in fishing for kokanee. In the absence of any evidence or submissions about this aspect of the complaint, I am not persuaded that the Ministry is reasonably certain to prove the Complainants have not been precluded from meaningful fishing opportunities. As in Hall v. B.C. (Ministry of Environment) (No. 5) , 2009 BCHRT 389, the Complainants could establish, at a hearing, that the service at issue in their complaint is not just access to fishing opportunities, but access to the specific areas where they desire to fish: Hall at para. 96.
[47] I have considered the variety of fishing opportunities available to the Complainants in other lakes and other parks, but there is no evidence before me suggesting they can fish for kokanee anywhere other than Paul Lake. Although they can fish in Paul Lake from the accessible dock, and they can fish in other lakes using trailered boats, they cannot fish in the parts of Paul Lake where they want to fish, because they cannot use car-top boats. Based on their inability to use car-top boats to fish for kokanee on Paul Lake, they could establish, at a hearing, that they experienced an adverse impact regarding a service customarily available to the public.
[48] It is not disputed that the reason the Complainants cannot use car-top boats is connected to their protected characteristics. I find they have brought the connection between their protected characteristics and the alleged adverse impact out of the realm of conjecture.
C. Is the Ministry reasonably certain to prove its conduct is justified?
[49] The next question is whether the Ministry is reasonably certain to prove its conduct was justified, under the Grismer analysis. For the purpose of this analysis, the standard relied on by the Ministry is a policy which prevents trailered boats from accessing Paul Lake through the Park. To succeed in this application to dismiss, the Ministry must show it is reasonably certain to prove 1) it adopted this policy for purposes rationally connected to the function performed by BC Parks, 2) it had an honest belief that the policy was necessary to fulfill those purposes, and 3) it cannot accomplish those purposes without undue hardship, unless it applies the policy.
[50] The Ministry says the decision to prevent trailered boats from accessing Paul Lake through the Park was based on the mandate set out in BC Parks’ mission statement and the purposes set out in the Park’s management plan. These authorities require BC Parks to manage the Park in a way that balances interests including conservation, environmental protection, safety, providing recreational opportunities including but not limited to fishing, reconciliation with First Nations, and protecting local government and community interests. The Ministry says its policy is rationally connected to all these purposes, and the decision to implement the policy, and prevent trailered boats from using the Boat Launch, was made in the belief that it was necessary to fulfil these purposes.
[51] In their sworn statements, some of the individual Complainants express doubt about whether trailered boats have any environmental impact on Paul Lake. But in the Complainants’ argument in response to the application to dismiss, they acknowledge that the bollards were installed to address the purposes identified by the Ministry. The 1996 management plan and the 2022 draft plan explain the connection between the decision to discourage trailered boats and the Ministry’s purposes. The management plans say that by reducing the number of trailered boats on the lake, BC Parks promotes environmental purposes, enhances safety and recreational opportunities for users who do not have a trailered boat, and promotes reconciliation with Tkʼemlúps, which opposes the use of high-speed boats on the lake.
[52] Based on the information in the management plans, and the Complainants’ acceptance that the bollards were installed to address the purposes identified by the Ministry, I find the Ministry is reasonably certain to prove the first two elements of the Grismer test. That leaves the question of whether the Ministry’s policy is reasonably necessary to address these purposes.
[53] The Ministry says removing the bollards at the Boat Launch would amount to undue hardship because it would prevent BC Parks from appropriately balancing the environmental, cultural, and recreational interests of stakeholders at Paul Lake. The bollards embody the Ministry’s policy, but the Ministry argues that they are not the only thing preventing trailered boats from using the Boat Launch. The Ministry cites the changes that would have to be made to the Park to safely accommodate trailered boats, including reconstruction of the Boat Launch itself, expanding the parking lot to accommodate trailers, and possibly moving the accessible dock. I am satisfied that the Ministry is reasonably certain to prove that allowing trailered boats to access Paul Lake from the Park would require significant changes to the Park, beyond simply removing the bollards.
[54] There is no evidence before me about what these changes to the Park might cost, or what impacts they might have on other Park-users. Without this type of evidence, I am not persuaded that the Ministry is reasonably certain to prove the changes, on their own, would amount to undue hardship. But the scale of the changes remains important, as the duty to accommodate does not require a respondent to make fundamental changes to how it operates: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) , 2008 SCC 43 at para. 16; Hallat para. 158.
[55] While the Complainants acknowledge that the bollards were installed for the purposes identified by the Ministry, they say the decision to prevent trailered boats from accessing Paul Lake through the Park is not reasonably necessary to accomplish those purposes. The Complainants say the Ministry can accomplish the same purposes, while allowing trailered boats to use the Boat Launch, by taking steps to implement a speed limit for all boats on Paul Lake. In other words, the Complainants do not seek accommodation within the context of the Ministry’s policy; they want to eliminate the policy altogether, and replace it with a different one.
[56] Both parties rely on evidence about how removing the bollards and allowing trailered boats on Paul Lake would impact Tkʼemlúps. The Complainants rely on Tkʼemlúps’s conditional support for their proposal to allow trailered boats on Paul Lake, while the Ministry emphasises that Tkʼemlúps opposes the use of high-speed boats on the lake. The letter from Tkʼemlúps’s Office of the Chief, provided by the Complainants, shows that Tkʼemlúps only supports expanding access to the Boat Launch for small trailered boats, and only for limited parts of the year, excluding the period from the end of June to mid-September.
[57] The Complainants do not explain how the Boat Launch could be designed so that it accommodates small trailered boats, but not all trailered boats. It appears they are relying on the possibility of a speed limit being imposed on Paul Lake, to address Tkʼemlúps’s opposition to high-speed boats. They do not suggest there is any other way to allow trailered boats to access the lake from the Park, while limiting the use of high-speed boats on the lake.
[58] The Ministry cannot unilaterally impose a speed limit on Paul Lake, but the Complainants say the Ministry could request a speed limit under the VORR. The Ministry does not deny that BC Parks could make this request, as a “local authority” within the meaning of the VORR, but it says BC Parks has never done so, in any provincial park in British Columbia. The Ministry says municipal or regional governments are in a better position to request speed limits.
[59] My difficulty with the Complainants’ argument that BC Parks could request a speed limit under the VORR, is that it is speculative to suggest the request would be approved. There is no evidence before me that requests for speed limits are routinely granted, or that BC Parks has ever made such a request. Nor is there evidence of a consensus among users of Paul Lake about the need for a speed limit. The Residents, who can currently use high-speed boats on the lake without restrictions, may oppose it.
[60] The Complainants say the bollards are not justified because a speed limit would accomplish the same purposes as the bollards. But in the absence of evidence showing that BC Parks could cause a speed limit to be implemented—and enforced—I am not persuaded that this potential solution is anything more than conjecture.
[61] In his sworn statement, Mr. Piggin says that if the Ministry will not remove the bollards, it should carry out a multi-governmental environmental assessment of the shoreline of Paul Lake. He says this assessment must solicit input from the federal and provincial governments, the Thompson-Nicola Regional District, local First Nations, and the general public. While he does not explain this in detail, it appears Mr. Piggin is suggesting an environmental assessment is necessary to support a request for a speed limit, under the VORR, and to determine whether environmental interests justify the Ministry’s decision to prevent trailered boats from accessing Paul Lake through the Park.
[62] As I understand the Ministry’s argument, it is not saying that environmental concerns, on their own, are sufficient to prove that allowing trailered boats to access the lake from the Park would cause undue hardship. Rather, the Ministry argues that allowing trailered boats to use the Boat Launch would cause undue hardship because it would undermine BC Parks’s ability to balance various interests in managing the Park, including environmental concerns, but also the interests of Tkʼemlúps and those of other park users, who do not have trailered boats.
[63] In the unique circumstances of this case, I am satisfied that the Ministry is reasonably certain to prove that eliminating its policy of preventing trailered boats from accessing Paul Lake through the Park would cause undue hardship, by undermining BC Parks’s ability to balance the various interests that it must address in managing the Park. I reach this conclusion for a number of reasons:
a. There is no evidence before me that could suggest the Ministry, or BC Parks, could successfully implement a speed limit on Paul Lake.
b. There is no evidence before me about how BC Parks could allow trailered boats to use the Boat Launch while respecting Tkʼemlúps’s position that only small, low-speed boats should be allowed on Paul Lake, and only at certain times of year.
c. The Ministry is reasonably certain to establish that allowing trailered boats to use the Boat Launch would result in changes to the Park. While there is no evidence before me about the cost of these changes or the exact impact they would have on Park users, I am satisfied that the Ministry is reasonably certain to prove that both the cost and the impact on other users’ experiences would be significant.
d. The Ministry is reasonably certain to establish that allowing trailered boats to use the Boat Launch would result in more and larger boats using Paul Lake, which would have negative effects on the environment and on other users of the lake.
[64] I understand why the Complainants feel aggrieved that the Residents are allowed to use trailered boats on Paul Lake without any restrictions, while non-Residents can only use car-top boats. This does seem unfair. But the unfairness stems from a lack of access to the private boat launch facilities used by the Residents. The Complainants do not suggest that their lack of access to these facilities is connected to their protected characteristics, or to any conduct of the Ministry or BC Parks.
IV CONCLUSION
[65] I allow the Ministry’s application and dismiss the complaint under s. 27(1)(c) of the Code. This means it is not necessary for me to consider the Ministry’s arguments under s. 27(1)(b) and 27(1)(d)(ii).
Andrew Robb
Tribunal Member
Human Rights Tribunal