Public access to waterways on private property – The Law

Posted

Q: What rights does the public have to access waterways and use streams if they flow through a farmer’s land? Are the rules the same for seasonal creeks? What if the creek is dry? Is there a right to walk or snowmobile along the creek bed?

A: Water is crown property and its use is regulated by various provincial and in some cases federal legislation. As a general rule, no licence or permit is required to use water for domestic purposes, including some agricultural usage.

A landowner cannot alter waterways running through his land if it will affect water flows or individuals downstream. Thus, a landowner cannot create a private dam to block the flow of a creek unless she has specific permission from the appropriate provincial authority. Bodies of water, such as sloughs, solely enclosed within a landowner’s property, can be drained or changed by the landowner.

Stream and lake beds are crown property. This was affirmed by the 1894 North-West Irrigation Act and by a 1932 Supreme Court of Canada decision.

The principle that lake beds and streams are crown property continues in current legislation. Manitoba’s Crown Lands Act reserves the bed of a body of water and a strip of land 30 metres from the highwater mark for the crown.

If land borders a navigable waterway, the crown also reserves “the public right of landing from, and mooring, boats and vessels so far as is reasonably necessary.”

ADVERTISMENT

Saskatchewan’s Provincial Lands Act reserves the public right of access to lakes, rivers, streams and bodies of water “and the right of passing and repassing on or besides the land on either side and wherever necessary for the use thereof.”

Alberta legislation simply provides that the crown has title to all “beds and shores” of permanent and naturally occurring bodies of water, rivers and streams.

The law also recognizes a public right to navigate over navigable waters. However, the difficult legal question is what constitutes navigable waters. There is no federal or provincial law defining this, nor is there any list of waters the public can use.

What is navigable?

In International Minerals & Chemical Corp. vs. Canada, the issue was whether Cutarm Creek in east-central Saskatchewan was a navigable waterway. The creek was described as marshlike and “consisting of pools and riffles” and as having a limited flow during most of the year with poorly defined boundaries, and a trickle where it meets the Qu’Appelle River except during spring runoff and severe rainfall.

ADVERTISMENT

The court accepted that a navigable waterway could be one capable of carrying vessels of shallow draft such as canoes, but the fact that it could carry canoes did not make it a navigable waterway.

The court defined a navigable waterway as one where “the waters connect places which in the normal course would facilitate travel, even recreational travel, on a route that would have a likelihood of reasonable appeal to members of the public as a route to be travelled.”

The court found that Cutarm Creek was not a navigable body because for most of the year it was not traversable, even by a canoe.

While the public has rights to access and use navigable waterways, this right does not include the right to cross private property to get to such waterways.

Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.

ADVERTISMENT

  • Karen Letendre

    I live in BC. What year did the law change that property owners of waterfront properties no longer owned the foreshore (or is it the high water mark?

  • Soccer mom

    What about man made lakes? The lake bed is privately owned. It was built artificially on a guy’s land, then he subdivided and sold lots on the private lake way back in the 50s. We owned our property before the lake was built and it flooded our property. Our property line is around 50 meters out under the water. Fishermen boat right up to shore and under our dock. Is that legal? The only access is off the highway and there is tons of shore on the lake with no homes where they could fish without bothering anyone. They even video our home and come right up to shore while the kids are playing and swimming in the water. They say they have every right to fish right up to shore.

  • jim malloy

    I have a neighbour who owns 3 sides of a man made lake while I own one side . It is a good sized body of water and he is in the process of building a 20 ft dirt road down my side of the lake which is cutting off my access. Is this legal ??

  • JoAnn

    Around where I live there are quite a few little lakes. The problem is that there are few places where one could set up a small campsite. Farmers have barricaded access points to the lakes because access crosses their land.My question is – if one could access the lake by the public wharf would it be legal to set up a campsite within the 30 meters of the shore if the water was used as an access instead of crossing the farmers land.

    • Harold

      One remedy is to gain the farmers approval for your activity, and if you do so, any laws become irrelevant. This is the best because you will not be under the cloud of the farmer’s discontent while holding your legal paper in your hand if you gain any. It’s nice to feel welcome and smiled upon and government a nobody. That being said, understanding a little history is important. Prior to any roadways in Canada, all streams, all lakes, and all rivers were the only “hi-ways” throughout Canada. (first roads were built by the military for military efforts) To protect commerce/trade, the Crown took ownership of all water and waterways, to protect them (enforcement) and to keep them open to all vessels of trade/commerce ranging from mighty ship’s to canoes etc, and it continues even today regardless of the many asphalt or dirt roadways. Trade is – you crossing the lake to contract with another person, (your eggs for her flour for example for your livelihood/human-being) and Commerce is – a corporation contracting with another corporation. (non-human being -can’t hunger or be injured/harmed eg. Canadian Tire and Walmart) Commerce and most of the Trade transport has shifted from water vessels to ground and rail transport, but not all. Your concern is Water jurisdiction (Crown) meeting land property ownership jurisdiction. The Crown decides if a waterway will, or will not be barricaded, not the farmer. If the farmer has illegally or unlawfully barricaded the waterway, the barricade will be removed and the Farmer in “hot water”. (pun intended)
      This is the ticklish part to understand:
      If an Act, Statute, Code, or Regulation is in conflict with a pre-existing Supreme Law then the Act, Statute, Code, or Regulation is unlawful and has no cause or effect or force. If we/public accept the Act, Statute,Code, or Regulation over the Supreme Law (public’s choice to do so) then the Act, Statute, Code, or Regulation remains un-Lawful but is Legal and enforceable. To clarify, a thief takes your BBQ it is theft (unlawful) but if you wish to gift it to the thief (no name change) no crime has been committed.(choice = legal) The act of stealing your BBQ remains unlawful regardless of your gift to the thief. To have the unlawful – is to have a Legal choice. (Act, statute etc) If your nice neighbor forcefully takes the BBQ away from the thief (justice after gifted) the nice neighbor gets arrested for theft. The unlawful is legally protected. Why I am telling you this is because the farmer’s barricade may be Unlawful and Legal at the same time and may have even been placed there by a government agency. If the public at any time chooses the Supreme Law, then the Bill is repealed (erased- no barricade)
      To get a proper answer to your question, I recommend that you phone the appropriate government Agency. The reason for all of the preamble is so you will recognize when someone is talking Legal or Lawful to you. (hopefully)
      Fisheries agency. will be Legal (Agency) and Attorney General will be Lawful or both. If you want to learn and get real answers don’t waste your time on the first “talking head” that answers the phone. Talk directly to the department head only, and don’t accept a “fill-in”. “Fill-in’s” have no liability for what is said; it’s the brush-off. You want fact evidence, statement, and signature. Follow it up with your letter addressed directly (confidential) to the one you are speaking to. Sometimes they will attempt to brush you off by referring you to the Queen’s Printer so you can pick up the entire Act and try to decipher it for yourself. Nonsense! You Want them to provide the evidence (documentation) that supports his opinion (written) and his signature (ink signed) and you want it sent to you. Keep in mind that the person who you are talking to does not do the work; the staff we hire with our tax dollars do the work so don’t accept that they are “too busy”. I would also recommend that if you cannot see this pursuit as educational, the adventure intriguing, and the outcome as satisfyingly fun regardless of the results, then you should go and talk to the farmer instead. You are liable for trespassing and any other damages when you enter upon the farmer’s property. Perhaps the waterway has been barricaded because farmers own all of the land that surrounds the lake (no public land) and the barricade is goodwill preventing any trespassing liability. (your favor) Is there a Public land or Crown land right-of-way that the farmer’s don’t own? If so, I would say that you have a valid argument for the barricades removal. Water and public/crown land is your access to Trade even if its your dime for her stick of gum across the lake and ten kilometers down the road. (Right-of-Way)