There is a public right of navigation on navigable waters, even when they pass through private property, I wrote earlier this year. I also pointed out that waterbeds are crown property.
What if a creek bed has dried out, a reader asked. Can people still walk or travel down the creek bed when it passes through private land?
Navigable waters, according to court rulings, are those bodies where the waters connect places that in the normal course would facilitate travel, even if it is recreational travel. Think of such waters as highways. In a Saskatchewan case, International Minerals and Chemicals vs. Canada, a court ruled that a creek that was not passable, even by canoe, except during spring runoff or in extremely wet years, was not a navigable body of water.
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Even if a water body is considered navigable, there is no right to travel on the river or creek bed if it dries out. As noted, a dried out creek bed remains crown property.
In my opinion, there is no automatic right of public access to crown lands. The public is prohibited or restricted in using crown lands in various situations. Those instances include military bases, parks, conservation areas, Indian reserves, community pastures and various government buildings.
In my view, unless there are specific regulations such as park use or a general acceptance of public access, such as government buildings during business hours, there is no public right to access crown land.
So a person travelling down a dried out creek bed is trespassing on crown property. Obviously, from a realistic point of view, the crown is unlikely to do anything about such an instance of trespassing. And it’s fair to say that in most provinces trespass laws are not effective.
Alberta has to some extent dealt with the issue of access to crown lands. Its Provincial Lands Act provides that the “holder of an agricultural disposition” (crown lands) shall allow reasonable access to persons wanting to use the land for recreation upon request by a person wanting access to the land.
Recreational purposes include hunting, hiking, camping, picnicking, fishing, bicycling and berry and mushroom picking. Complete details on the rights of the leaseholder and the right to appeal restrictions on access can be found in the recreational access regulation at www.qp.gov.ab.ca.
However, in my view, even Alberta laws do not specifically address the situation of the dried out creek bed because the act specifically speaks of leased crown land and not creek beds. Presumably, if the matter came to court, an Alberta judge might decide to apply similar standards to the creek beds as leased lands.
So in a sense, there is a gap in the law in most provinces on this point. From a practical point of view, anyone believing they really need access to a dried out riverbed should seek permission from the landowner whose land the bed crosses.
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.
