Wednesday, July 9, 2008

"Who owns the shoreline...?"


Of all the ambiguous questions we might get asked, the worst to sort out (and explain, apparently...), are the ones which deal with shorelines. There exists a train of thought it seems, that so much of the shoreline 'belongs to the federal government', another few feet belong to the provincial government and the remainder belonging to the landowner.

I recently had a French lad from Qu├ębec call us up, wanting to know which section of the shoreline "belonged to the federal government". After pressing him for details, it turns out he had been ticketed by the municipal police in Repentigny, QC, for having his boat on the shore of a municipal park. The park was closed at the time (2200hrs) and therefore he was in fact trespassing. Hence the ticket. This chap wanted me to tell him that his boat was resting on "the federal part of the shoreline", so he could refuse to pay the ticket. Needless to say, he did not hear what he wanted to from me. In a perfect world, he would have gotten an extra ticket for being a jackass...

I would like to go out on a limb here and attempt to de-mystify some of this.

Riparian Rights are accepted as the inherent rights of individuals who own properties bordering water. The following might help clear things up:

Riparian Rights -- A Detailed Discussion.

In common law the owner of lands adjoining a river, stream or lake has certain rights related to the use of water. The rights arise from the ownership of the bank, that portion which adjoins the upland with the water itself. The latin word for bank is "ripa" hence the rights are called "riparian", and the owner is similarly referred to as "riparian owner". Since riparian rights are part of common law, there is no requirement for them to be expressly conveyed in a deed or title certificate.

In Canadian law riparian rights may be classified under six categories:

1. the right of access to the water,
2. the right of drainage,
3. the rights relating to the flow of water,
4. the right to undiminished quality of water (pollution),
5. the right to use of water, and
6. the right of accretion.

1. The Right of Access.

Access to the adjoining water is the basic right of a riparian owner. Without access to the water, a riparian owner could not enjoy the other rights.
The right includes access both to and from the water. On tidal waters, this involves the right to go on the shore (i.e., the land between the high and low water mark). On non-tidal rivers or lakes, this involves a right of access over the shoal waters to deeper waters where navigation can practically begin. The right of access extends across the entire length of a riparian owner's land fronting the body of water.

An example where a riparian owner would lose a right of access may involve a situation where land is required for a public work on a portion of the shore located in front of the riparian owner's land. Even though the owner may still have access from a portion of the lands to the water, the owner has lost the right of access to the water from lands fronting the public work itself. This would be considered a compensable item in an expropriation settlement even though no land is taken, and access is still available from other points on the riparian owner's remaining waterfront lands.

The riparian owner's right of access to waters must be distinguished from the public's right of navigation on the water and the public's right to fish. Navigation on a body of water may legally interfere with a riparian owner's right of access to some extent (e.g., a ship or a log boom, depending upon circumstances, temporarily anchored in front of private lands). The public in the exercise of its right of fishing, may, for example, land fish on the shore or dig for clams. While these acts may temporarily obstruct access to some degree, the right of access cannot be blocked by permanent fishing installations.

2. The Right of Drainage.

Owners of land adjoining a natural stream have a right to drain their lands in the stream. Since the natural function of watercourses is to drain land within a specific drainage area, draining lands from areas outside the natural watercourse may increase the flow of water which could have an adverse impact on lands further downstream.
An upper riparian landowner may be held liable for damages to a lower riparian owner's lands. This could occur where an increased flow of water causes damage to the lower lands which is attributable to drainage of lands outside the natural watercourse.

3. The Rights Relating to Flow.

A riparian owner is entitled to certain rights respecting the manner in which water reaches and leaves the land. An owner is entitled to permit water to flow through the lands as it has been accustomed to flow, substantially undiminished in quantity and quality. A riparian owner is also entitled to have water leave the land unobstructed.

There are some underlying rights which have evolved through practical considerations and court decisions. These rights include:

a. The right to have water flow in its natural course.While the riparian owner is entitled to have water flow down the stream to his/her land along its regular channel, a riparian owner may alter the course of the stream so long as it is returned to its normal channel without affecting the flow downstream.

b. The right to prevent the permanent extraction of water from the stream.If water is diverted from a stream, it must be returned to the stream substantially undiminished in quality and quantity. Accordingly, courts have decided that water diverted for the purpose of irrigation must be done without sensibly diminishing the flow of water downstream.

While a claim for minimal diminution (as in some irrigation projects) may not result in legal redress; where the damages may be appreciable, a claim for damages or an injunction to prevent the diversion may likely be successful. An example of damages being appreciable is where a town will divert water from a stream to suit its municipal requirements, resulting in a diminished downstream flow that leaves the remaining water stagnant and foul.

c. The right to prevent the alteration of the rate of flow to downstream property.

While a total flow of water downstream might not be affected over a specific period; an upstream owner could potentially alter the times when the water will flow, by increasing or decreasing its rate. This might be required for replenishing a reservoir for an irrigation project, or a head pond for a hydro-electric facility.

With strict interpretation of the principle of an undiminished flow through downstream lands, an upstream riparian owner could be severely restricted in the use of water. The development and maintenance of control dams on an upper riparian owner's lands would be impractical with this type of interpretation. As well, it would be unfair since the upper riparian owner would not have a right equal to that of the lower owner to make use of the water.

Courts have made it clear that a riparian owner is entitled to a reasonable use of water in a stream or on adjoining land which of necessity, affects the flow downstream. Whether a use is reasonable requires consideration of all the circumstances including the size of the stream, the season of the year, the nature of the use and the operations involved.

d. The right to have water leave land in its accustomed manner. As indicated in a) above, a riparian owner has a right to have water enter lands unobstructed. A riparian owner also has the right to have water leave the land unobstructed. The most frequent source of obstruction to be faced by an upstream owner are dams built downstream which can result in a flooding of upstream lands.

Court decisions have made it clear that any person who interferes with the course of a stream must ensure that the works substituted for the natural channel can adequately carry the water brought downstream.

4. The Right to Undiminished Quality of Water (Pollution).

A riparian owner is entitled to the flow of water in its natural state. While an upstream riparian owner has the right to drain lands, the owner is not permitted to collect and discharge contaminants into the stream to the detriment of downstream riparian owners.

An upper riparian owner would not ordinarily be liable, where water in its flow carries with it, for example, oils or salts found naturally in the earth which affects the quality of downstream water.

5. The Right to Use of Water.

While a riparian owner does not own the water running in a stream, an owner may use it as it passes through the lands. Water cannot be granted, however access easements can be granted by land owners for its use.

Riparian rights of use differ between ordinary and extraordinary uses. The use of water for drinking purposes, watering stock and other domestic purposes such as washing are categorised as "ordinary uses". The use must be closely related to the adjoining land. Should an owner exhaust the water supply through ordinary uses, there is no liability for damages to a downstream riparian owner. Further, water from a stream that is used to supply properties that do not adjoin the stream would be considered extraordinary.

A riparian owner may make use of water for extraordinary purposes so long as it is incidental to the use of the lands. What amounts to an extraordinary purpose will depend on the general conditions in the area and other uses of the stream. A common example is the use of water for running a mill. Unlike a person who uses water for ordinary purposes, one who uses water for extraordinary purposes, must restore it to the stream substantially undiminished in quantity and quality. There is no right of first appropriation. A riparian owner has no first right of use of the water for extraordinary purposes over downstream riparian owners.

6. The Right of Accretion.

The riparian owner is entitled to land created by accretion. There are two types of accretion. One is created by the gradual and imperceptible deposit of alluvium on the banks of a riparian owner's land. The other results from the gradual and imperceptible recession of the waters to a lower level. In either case the additional dry land normally belongs to the riparian owner. On tidal waters, a riparian owner's right to accreted land occurs only where the lands accreted are above the high water mark.

In practice, distinctions have been made between accretions which result from natural causes and those which result from man-made structures. An accreted portion of land which results from the action of water on man-made structures such as wharves, dikes, or breakwaters may not belong to a riparian owner. Court decisions concerning title to such accreted lands normally consider the circumstances of the land either forming gradually and imperceptibly or suddenly.

Riparian owners have the right to protect their property from invasion of water from the shore. The owners may take steps such as building a bulwark, dike or berm on their side of the water's edge to protect the lands from being washed away.

Encroachment of the water through erosion of the banks can occur because of changes in the flow caused by neighbouring owners. Anyone who for example, either removes material such as sand and gravel from a bed of a stream that may weaken the supporting bank structure, or constructs a barrier such as a breakwater which causes increased wave turbulence in front of a riparian owner's land, can be held liable for damages caused by the resulting erosion.

Riparian Rights and Current Legislation.

It may be said that the common law of riparian rights is geared to simpler times where perhaps only an adjoining owner was affected by waters. Today water affects more than the rights of adjoining owners of land, it affects the interests of the public.

To meet the demands of contemporary society it has been the practise to obtain statutory powers whenever they are seen to be for the public good. Over time, a waterfront owner's right to exercise riparian and littoral rights has been limited to some extent by federal an provincial legislation.

In Canada to-day, the issue of riparian rights as developed under common law, is linked with the demands of contemporary society through many acts and regulations. This legislation includes the Navigable Water's Protection Act, the Canadian Environmental Protection Act and its provincial equivalents, the Fisheries Act, the Commercial Fishing and Recreational Harbours Act, the Canada Shipping Act, the National Harbours Board Act, the Dominion Water Power Act, the Railway Act, the Public Works Act, the Expropriation Act, and the Land Titles Act.


As an example of the above, the Navigable Waters Protection Act limits an owner's riparian rights. By this act, federal government approval is required to construct works on navigable waters. The federal government may also remove all works built without federal approval.


**********************************************************

So... in a nutshell, it is never a case of "who owns the shoreline". It all has to do with who wants to do what and where. Odds are that there will be several entities involved, certainly if the caller's enquiry has to do with any type of construction or development work, which is destined to take place either on the shoreline (which could directly affect fish habitat) or in the water (which would then involve both fish habitat and navigable waters).

Riparian rights provide a guarantee of sorts that landowners will be able to enjoy access and usage of the water. These rights DO NOT translate into the right to dictate how boaters or swimmers may use the waters. For some insane reason, many landowners think that they have to right to decide who anchors out in front of their property, or who swims in the water near their property. Riparian rights apply only to the land and the access and usage of the waters. They do not transform an individual into some sort of feudal baron who holds sway over any portion of a watercourse. Nobody died and made you God...

By the same token if you're a boater, you have no right to pull your boat ashore on someone's private property and decide you're going to have your shore lunch there. The first few feet up from the water's edge DO NOT BELONG TO THE GUBMINT!! So you have no right to park your carcass there. If you have any civilized upbringing whatsoever, you will go to the landowner's house and ask his permission or better yet, go find an uninhabited stretch of shoreline.

Either way, that's why there are services such as ours, which can send folks to the appropriate level of government (if the government is indeed involved at all...), for the information they need.

My thanks to Public Works and Government Services Canada's (PWGSC) Real Property website, which provided the bulk of this information. You can view it yourself at the link below:

http://www.tpsgc-pwgsc.gc.ca/biens-property/vltn/1c6-anna-eng.html


1 comment:

Anonymous said...

Riparian rights are a "follow on" from crown patents. If your crown patent has navigable water on it, you own to the water. You have the right to anchor a boat in front of your property only if you have riparian rights at least in Ontario. Ministry of Natural Resources have a policy that states that if you anchor your boat anywhere else that in front of your own property, you can only stay 21 non-consecutive days. On most crown patents you have the right to come ashore - not your boat. This was to enable early settlers to reach their inland crown patents before there were roads.