A judge will resolve a longstanding disagreement over the status of the Douglas Trail Road/Highline Road in a case scheduled for Kamloops Supreme Court starting Nov. 5.
Five days have been set aside for the hearing.
Wolfgang Skutnik is petitioning the court for a declaration that the 27-kilometre Douglas Trail Road/Highline Road linking Seton Portage and D’Arcy is and has been a public highway within the meaning of Section 42 of the B.C. Transportation Act. Under that section, if public money is spent on a travelled road that is not a highway, “the travelled road is deemed and determined to be a highway.”
Skutnik’s petition is being supported by Lonepine Estates Ltd., which hopes to subdivide land on the northwest side of Anderson Lake. A declaration stating the road is a public highway would assist Lonepine’s subdivision efforts.
Over the past two decades, there has been substantial public pressure on the provincial government to upgrade the Douglas Trail/Highline Road to a public road. The Ministry of Transportation (MOT) and its predecessors have denied all those requests. Public pressure intensified recently after the route was used for emergency evacuations during forest fires.
In the past, the province has also consistently stated Skutnik must prove that public expenditures have been made on the road.
Skutnik countered with a 2012 affidavit quoting an April 2008 MOT research report. The document states the history of public expenditures on the construction of a trail in the location of the Douglas Trail Road dates back as far as 1873.
He also cites a five-year Memorandum of Understanding (MOU) between the MOT and the Seton Chamber of Commerce. The terms of the April 2005 MOU say the ministry would contribute $42,000 per year to the Chamber towards the annual costs required to fund the maintenance of the road and upgrade the route.
Skutnik is acting as his own lawyer in the case.
Earlier this year, an affidavit filed by MOT district manager Todd Hubner states there is no provincial public money being spent on the road, nor are there plans to spend any public money on the route. The province also claims it has no legal obligation to improve, maintain or expand the road.
By court order, the St’at’imc Chiefs Council (SCC) has now become a respondent to the petition and has filed an amended response challenging the constitutional validity of Section 42. The SCC says the province has a duty to consult when aboriginal rights and title could be adversely affected.
Responding to the SCC, the provincial Attorney-General says, “The potential for adverse impact upon the claimed Aboriginal rights and title of the SCC from the Douglas Trail Road being an existing public highway (if it is one) arises entirely from past conduct, not current or contemplated conduct. Past conduct does not constitute an adverse impact giving rise to a duty to consult.”
In July of this year, a Supreme Court master dismissed a separate case in which Skutnik sought damages from the Province of B.C. and B.C. Hydro. The July decision stated that Skutnik had argued that the province and/or B.C. Hydro owed him a duty of care to:
1. comply with Section 4 of the Transportation Act to ensure competitive and fair bidding in the letting of contracts to maintain the Douglas Trail/Highline Road; and
2. comply with other statutory obligations to properly maintain the “highway;” and that as a result of breaches of this duty of care, he had suffered economic loss.
The court ruled that the MOT’s agreements with various incarnations of Chambers of Commerce in the Seton Portage area constituted “grants or contributions” permitted under the Transportation Act, and further that any negligent breach of statutory duty is not a cause of an action for damages.
The court also held that, while the defendants could conceivably be held liable for negligence with respect to their actual maintenance of the road, there is no statutory duty to maintain and improve roads that are not provincial public highways.
Skutnik’s mother, Edeltrud Skutnik, told the Lillooet News her son will appeal the Supreme Court master’s decision.
A report commissioned by B.C. Hydro concluded the present Douglas Trail route is an assemblage of sections constructed by several agencies, including Hydro, Ministry of Forests, Ministry of Transportation, logging contractors and others. The report says the road crosses N’Quatqua reserve lands, the CN Rail right-of-way in D’Arcy and the Tsal’alh (Seton Lake Indian Band) reserve lands in Seton Portage.