Public access to waterways on private property – The Law

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.”

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.

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.

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