The B.C. Supreme Court has decided in favour of the Ministry of Forests in a dispute between the ministry and two houseboat owners on Kootenay Lake near Nelson.
Justice Lindsay Lyster, in her June 4 decision in , said the ministry acted lawfully when it issued trespass notices to Kyley Gagnon and Hannah Chessman in 2022 and 2023, and seizure notices in 2024.
She said they were contravening a provincial law against living on Crown land without permission. But she also stated that the floating structures were not blocking access to the lake, were not polluting it, and were contributing affordable housing to the community.
As a result of her ruling, Gagnon and Chessman must move their floating structures by July. 4. But there appears to be no legal location to move them to.
The trespass and seizure notices were given, Lyster stated, because Gagnon and Chessman were unlawfully occupying Crown land without authorization under B.C.'s Land Act. Land under the surface of lakes in B.C. is considered Crown land.
Gagnon has lived in her houseboat with her two children, age 11 and 13, for four years while Hannah Chessman uses her houseboat not as a home but as a vacation home and art studio.
The ministry fined Gagnon and Chessman $1,000 each for non-compliance with the trespass orders, which they did not pay, according to Lyster.
Chessman and Gagnon were also informed by the Regional District of Central Kootenay that they were in contravention of its bylaws regarding houseboats on Kootenay Lake. Lyster noted that Chessman and Gagnon entered into voluntary compliance agreements with the RDCK in November 2022, agreeing to move their vessels by May 2023, but did not do so.
In an interview with the Nelson Star on June 13, Gagnon said she and Chessman found their communications with provincial officials confusing and that she was hoping for solutions rather than just sanctions.
"They said that I wasn't complying. It wasn't about the non-compliance. It's about answering our questions of like, well, where can we go? And they never gave us those answers.
"It's so confusing. I contacted the MLA, I contacted all the mooring facilities ... I'm willing to pay moorage fees, I'm willing to pay taxes."
Chessman chose not to be interviewed for this article.
She and Gagnon applied to the B.C. Supreme Court in the fall of 2024, asking the court for a judicial review of the ministry's trespass and seizure notices.
In their petition (the initiating document) to the court, Gagnon and Chessman argued they were not occupying Crown land without legal authority, that their homes should be legally defined as vessels under federal law, that their structures are not impeding public access to Crown land, and that the ministry is selectively enforcing its rules by ignoring other similar houseboats on the lake.
In court on June 3, they represented themselves, without a lawyer, in a hearing with evidence from Chessman, Gagnon and ministry officials.
Some of the discussion in court, and beforehand, was about whether the two floating structures should be defined as "floating homes" (and therefore under the jurisdiction of the provincial government) or "vessels," which are under the control of the federal government. A vessel is a vehicle that is capable of being navigated and that moves from place to place, and which requires a federal vessel licence.
Chessman and Gagnon argued in court, and beforehand with provincial officials, that their structures were vessels, and therefore the provincial ministry's officials had no jurisdiction to evict them. But Lyster disagreed.
"Even if the structures are vessels, they are still in trespass on Crown land, and the minister was still legally entitled to issue the trespass and seizure notices," she wrote.
Lyster acknowledged that "nine unauthorized float homes had been documented in the region" by ministry staff, but did not state how many of those are being investigated or evicted by the ministry.
"I have spoken to a few of them," Gagnon told the Nelson Star. "And they have not gotten any trespass notices or seizure notices ... For some reason, they just wanted me and Hannah to move. There's at least 10 other floating live-aboard vessels on Kootenay Lake."
Judge suggests policy change
Although Lyster upheld the decisions of the ministry employees who issued the trespass and seizure notices, she expressed concern about Gagnon's and Chessman's situation.
"I sympathize with (them)," she wrote. "There is no evidence that their structures have harmed or impeded any other users of Kootenay Lake. For example, there is no evidence that they caused effluent to be discharged into the lake, or that they impeded anyone香蕉视频直播檚 access to the Lake."
Lyster acknowledged that the housing situation in Nelson is tight and that the houseboat has provided Gagnon's family with affordable housing. She noted that Gagnon and Chessman have tried without success to find legal moorage on the lake, and she suggested that a policy change might be in order.
"It is arguable that, within the context of the current housing crisis, permitting and regulating the use of floating homes on Kootenay Lake, whether by means of the Floating Homes Community Policy or some other mechanism, would be in the public interest."
The B.C government's Floating Home Community Policy contemplates allowing a group of two or more floating homes to be allowed on Crown land, then goes on to state that, "Applications for floating home community use of aquatic Crown land will not be accepted."
The policy then appears to contradict itself by stating that applications may be accepted "from a proponent of a floating home community, provided the proposal contains sufficient documentation of the development concept and has the support of local government."
But Lyster said that was not a matter to be addressed at her court hearing, "whose jurisdiction in this matter is limited to determining whether the officials who decided to issue the trespass notices and seizure notices acted within the limits of their legal authority. I have determined that they did so and, as a result, their decisions must stand and the petitions must be dismissed."
Gagnon said she realizes that government policy change would take time, but there is a need for a floating home community to exist on Kootenay Lake.
"There clearly already are many people that are living on these types of vessels. So it would just really be nice to see the appropriate authorities look into creating a policy to allow this."
Meanwhile, she said, the province is in a housing crisis. She said the ministry offered to put her on the affordable housing priority list in Nelson.
"That would take another person's home away from them," she said, "when I already have a home."
On her floating home, she said, she lives off the grid and disposes of waste effectively.
"My fossil fuel use and my impact on the environment is lower than anybody's that I know in Nelson. I'm already doing what the government wants people to do."
Gagnon said the ministry told her they would seize her structure and hire a contractor to take it off the lake, perhaps dismantling it, and then bill her for the work.
Gagnon said has no idea what her next move will be, but she is looking for suggestions and ideas. She said her home is worth $60,000, but she can't sell it because of the seizure notice.
