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A Kelowna man must remove an illegal and very expensive dock from Okanagan Lake, per a ruling from the BC Supreme Court this week.
The court ruling says that Clark Smith constructed the dock in June, 2010 on his property, located on a rocky outcropping on eastern shore of the lake. However, he did not have the authority to do so.
The dock cost $173,000 to construct, but did not have the two necessary authorizations prior – one under the Water Act and Water Regulation and another under the Land Act.
The ruling notes that Smith did apply for the two authorizations, however, “In 2010, long delays in the approval of docks were common.”
Smith went ahead with construction on June 11, the same day he heard back from Front Counter BC, who told him his application had been accepted, but he was not yet allowed to build the dock on Crown land.
Then, in May 2012, Smith was notified that the application would not go through on the basis that the dock would likely cause harm to sensitive fish habitat.
Smith was issued a trespass notice in 2012, but did not remove the dock. The ministry did not take any further enforcement steps, and, fast-forward to August, 2018, an inspection of foreshore developments on Okanagan Lake resulted in the discovery of the illegal dock.
Another trespass notice was issued in September, 2018 in response.
On Sept. 19, 2019, Smith filed a petition against a decision made by the Ministry of Forests, Lands and Natural Resources Operations (MFLNRO) that disallowed him from occupying Crown land for private moorage purposes, and asking that the trespass notice be set aside.
The petition was filed under the position that Smith did his best to follow the rules, but “was stymied by a federal/provincial jurisdictional dispute and a long backlog in processing applications to approve the construction of docks.”
He submitted that his delay in bringing his petition is understandable in that he believed the MFLNRO had “dropped” the matter in 2012.
However, the presiding judge, L.S Marchand, decided to strike the petition due to “unreasonable delay” on the part of Smith.
“While I have a certain level of empathy for Mr. Smith, he constructed his dock before receiving two required authorizations. In fact, he constructed his dock before the responsible agencies even had a chance to consider his applications for these authorizations,” said Marchand.
“Mr. Smith’s delay in seeking judicial review cannot be justified on the basis that he thought the respondents had 'dropped' the matter in 2012,” Marchand continued. “At that time, he was fully aware that his dock was not authorized. He elected to lay low and was rewarded with seven additional years of the use of his unauthorized dock.
Marchand concluded the ruling by saying that, "having made that choice and reaped those benefits, [Smith] now has to live with the consequences.”
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