Riparian Rights andPublic Foreshore Use

In the Administration ofAquatic Crown Land

Occasional Paper No. 5

Revised: March 1995

Created by:Ministry of Environment, Lands and Parks

Land and Water Programs Branch

Province of British Columbia

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Canadian Cataloguing in Publication DataMain entry under title:Riparian rights and public foreshore use in theadministration of aquatic crown land

(Occasional paper; no. 5)

Previously published by: Land Policy Branch, 1990.Includes bibliographical references p.ISBN 0-7726-2475-5

1. Riparian rights - British Columbia. 2. CrownLands - Government policy - British Columbia. 3.Shorelines - Government policy - British Columbia. I.BC Lands Land and Water Programs Branch. II. Series:Occasional paper (BC Lands. Land and Water ProgramsBranch); no. 5.

KEB227.R57R56 1995 346.711'04691 C95-960177-5KF645.B7R56 1995

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Contents

1. Introduction 4

2. Riparian Rights and Public Foreshore Use: Historicaland Legal Foundations 5

3. The Nature and Extent of Riparian Rights in BritishColumbia and in Other Jurisdictions 6

4. The Relationship Between Riparian Rights, PublicForeshore Use, And Land Act Tenure Administration 10

5. Administrative Guidelines 18

Selected References 21

Cases 22

Figure 1: Tenure with Improvements Located Adjacent tothe Foreshore in Front of a Riparian Owner 14

Figure 2: Tenure with Improvement Located Nearshorein Front of a Riparian Owner 16

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1. Introduction

In British Columbia the Ministry of Environment, Lands and Parks administers aquatic Crownlands.* This paper reviews the riparian rights of property owners and provides guidelines on howto protect these rights and the privilege of public access, while making such land available forother uses.

quatic lands are the foreshore and bedsof streams, rivers, lakes and

bounded coastal water, such as GeorgiaStraight, the Strait of Juan de Fuca andinlets. In British Columbia, the Crown retainsthe title to lands below the upland naturalboundary, except where they were Crown-granted long ago.

The Ministry of Environment, Lands andParks administers these aquatic lands andprovides for various, commercial, industrial,conservational, and recreational uses. Indoing so, it respects the common law rights ofwaterfront property owners and recognizesthe importance of publicaccess to and passage along the foreshore.

Owners of property located adjacent to abody of water have traditionally enjoyedcertain riparian (stream or river banks) andlittoral (sea or lake-shore) rights. Forsimplicity, the term riparianis used for all rights pertaining to the shore orbank of a body of water.

Riparian rights, which run with an uplandproperty, include access to and from thewater, protection of the property fromerosion, ownership of naturally accretedmaterial, and use of water of undiminishedflow and quality for domestic purposes.Some, but not all, of these rights are stillrecognized in British Columbia today.

This paper reviews these rights anddemonstrates the ways in which they affectand, in turn, are affected by theadministration of Crown land.

The guidelines provided explain how theMinistry can protect riparian rights incarrying out its administrative function andhow it can assert the Crown's right to erodedland. The paper also describes themechanisms by which the Crown can retainor acquire riparian rights.

While much of the information in the paper isbased on case law concerning riparian rights,the conclusions and administrative guidelinesoutlined are not legal opinions on either thenature or the extent of such rights.

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* In 1995 when this document was last revised, administration of aquatic Crown lands was under the jurisdiction ofthe Ministry of Environment, Lands and Parks. As of 2001, aquatic Crown lands are administered by Land andWater B.C. (LWBC). LWBC operates under the jurisdiction of the Ministry of Sustainable Resource Management(SRM), which assumed many of the responsibilities of the now-defunct Ministry of Environment, Lands and Parks.For reasons of historical accuracy, the references to the former Ministry of Environment, Lands and Parks have beenleft in this document although the administrative responsibility for aquatic Crown lands now rests with LWBC andSRM.

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2. Riparian Rights and Public Foreshore Use:Historical and Legal Foundations

The Origin of Riparian Rights

For centuries it has been recognized thatwater bodies and watercourses are essentialfor marine commerce. Non-navigable streamshave also received special attention becauseof their valuein supplying potable water for domestic useand for irrigation. Over time, certain rightshave been established for these uses.

Access to and from waterfront property,maintenance of the quality and quantity ofsurface water flow, and the ownership ofnaturally and imperceptibly accreted materialare not rights granted by statute. Instead, theydeveloped as common law rights, and thecourts have defined their nature and extent innumerous legal proceedings.

Some of the original riparian rights have beenspecifically or incidentally eliminated bystatute. Others remain entrenched as commonlaw rights incidental to ownership of riparianproperty and "run with the land." They arenot associated with the title of the land; theyarise by virtue of its ownership, and they donot follow the owner who moves to anotherproperty.

The Rights of the Crown andPublic Use of and Access toAquatic Crown Land

The Land Act and Land Title Act provide theauthority under which the Ministry ofEnvironment, Lands and Parks administersaquatic Crown land.

The Ministry recognizes and respects theriparian rights of waterfront property owners.But in special cases it may assert its own rightto protect the public interest or to makeaquatic Crown land available for commercial,industrial, conservational or recreationalpurposes.

The Crown recognizes the importance ofproviding for public use of aquatic Crownlands and public access to and along theforeshore, but these are not public rights, andthey cannot be guaranteed in all cases.

The public does enjoy a privilege or barelicence to use the foreshore and other aquaticlands held by the Crown. The only rights thatexist, however, are the right to land boats andto embark from the foreshore in cases ofemergency, and the rights of navigation,anchoring, mooring, and fishing over thoselands covered by water.

Navigation is under federal rather thanProvincial control. The Canadian CoastGuard exercises this managementresponsibility under the authority of thefederal Navigable Waters Protection Act.

Anyone who wishes to build structures innavigable waters must obtain approval fromthe federal government. If the building causesspecial damage, however, this approval doesnot guarantee protection from legal action.This damage usually involves interferencewith a commercial operation.

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3. The Nature and Extent of Riparian Rights inBritish Columbia and in Other Jurisdictions

Riparian rights involve the relationshipbetween water and the land beside which orover which it rests or flows. In common law,riparian rights generally include thefollowing:• protection from erosion by an owner• quality and quantity of surface water flow• ownership of naturally accreted material• access to and from the water

The question of how far property rightsextend out into a river or other body of wateris also often included in the discussions ofRiparian rights although, strictly speaking, itis the ownership ofthe bed of such water bodies that is involved,not rights.

Similarly, constructing facilities on theforeshore below the natural boundary toenhance access to and from the water is alsooften thought of as a riparian right. InCanada, such construction generally requiresthe consent of the Crown and is not a "right"of the upland owner.

However, because these two subjects arise sooften, they have been included in thisanalysis.

Protection of LandBritish Columbia recognizes the right ofshoreland property owners to protect theirland from erosion or flooding, by building

embankments, dykes, or other protectiveimprovements. This right extends only to thenatural boundary of the property. Ownerstherefore have the right to install protectivestructures on their own land; but they requirethe consent of the Crown to extend suchstructures below the natural boundary.

Quality and Quantity ofSurface Water Flow

The original and fundamental riparian rightwas the right to use and divert water in astream or river for domestic purposes.

Since many people used a common streamtraversing their lands for domestic supply andirrigation, their equal right to water ofundiminished flow and quality became abasic riparian right.

This right was effectively abrogated in BritishColumbia with the passage of the Water Act.Even as early as 1884, these rights werelimited when the Land Act made provision forthe control and recording of all water used orappropriated from streams and rivers.

The water-licensing system now in place stillretains concern for the quality of waterenjoyed by downstream users, but users arelimited in the amount of water they may takefor their own use and cannot divert waterwithout consent of the Crown.

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Natural Accretion andErosion

Land abutting any body of water is subject tocertain forces of erosion and deposition(accretion). The ownership of accreted landhas long been a subject of legal debate.

According to the generally accepted principlein British Columbia, the waterfront propertyowner does not own land created by a suddendeposit of material by flood or an artificialinterference in natural processes, or by anaddition to the upland that occurs as a resultof a natural uplifting of a lake or stream bed.

However, the waterfront property owner doesown land that has accreted to the uplandthrough gradual and imperceptible naturaldeposition. This rule also applies, in somecases, wherethe material has gradually and imperceptiblyaccreted as a result of a structure placed onanother property by another party.

Changes to the natural boundary of a propertythat result from accretion can be determinedin accordance with the Land Title Act and, inthe event of disagreement, by the Land TitleInquiryAct.

This situation can also operate in reverse.When the upland is eroded, the property lostbecomes part of the foreshore or bed of the

adjacent water body. The Crown then ownsthe land below the natural boundary.

Where erosion or accretion has occurred, thetitle to the upland may not reflect the actualextent ofownership.

Access: Ingress and Egress

The final major riparian right associated withwaterfront property is the right to unimpededaccess to and from that property to deep waterfor the purposes of navigation. This rightexists separateand apart from the public right of navigation,and the right of access applies to non-navigable bodies of water as well.

This right of access to and from the waterapplies to every point along the waterfrontage, including every part of the foreshorein front of the upland property. As a result,improvements cannot be constructed on awaterfront property if they interfere withaccess. Whether or not an obstructionconstitutes interference must be determined ineach individual case. The types of obstructionlikely to constitute interference are discussedin Section 4.

The right of access is still recognized as ariparian right in British Columbia. It isprobably the most important of the remainingriparian rights acknowledged in theMinistry’s administration of land.

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Extension of Property RightsThe extent and control or "sphere ofinfluence" of property rights has become animportant issue in British Columbia as adirect consequence of historical claims toproperty rights over the beds of water bodieslocated adjacent to privately owned upland.Given that the riparian right of access extendsalong the entire foreshore in front of anupland property, the question at issue washow far out into the water that right extended.

1n the case of streams bounded on oppositesides by private land, the "sphere ofinfluence" was considered to extend to a pointequidistant from each bank to the centre ormiddle of the watercourse. This principle - admedium filum aquae (literally, "to the middlethread of the stream") - could only be appliedpractically in the case of narrow streams, orsmall.bays where thedistance between the shores was relativelvshort. It was considered impractical to extendthe sphere of influence of such rights to thecentre line of any water bodies other thanvery small lakes.

In Kennedy v. Husband (1923), 1 D.L.R.1069 (B.C. Co. Ct.) the court confirmed thatthe principle of ad medium filum aquae doesnot apply to large navigable bodies of water.In fact, it is not clearthat it has ever applied to navigable waters ingeneral.

This particular right - which is more a"property" right than a riparian right - hasbeen largely abrogated in British Columbia asa result of an amendment to s. 52(1) of theLand Act. This amendment precludes privaterights of ownership or control over the bedsof streams, lakes, rivers, and other waterbodies in the province.

Similarly, s. 108(2) of the Land Title Actprovides that, when a subdivision plan is filedin the Land Title Office, any previous title toadjacent submerged land an upland ownermay have held isautomatically forfeited to the Crown. Theshoreward extent of the property ownershipthus ends at the natural boundary.

Construction of Facilitiesfor Access

Waterfront property has always had strategicimportance for the conduct of marinecommerce. As a consequence, the traditionalright of access to deep water for navigationhas often been interpreted to include the rightto construct facilities on the foreshore toprovide such access.

Case law suggests that riparian owners have alimited right to construct floating wharves ordocks that do not interfere with the publicright of navigation and that are only affixed totheir ownupland property (Booth v. Ratte (1890), 14A.C. 612 P.C.)). In fact, however, this rightdoes not extend to facilities that are anchoredor in any way affixed to the foreshore or bedof the adjacentwater body.

Because title to most of the foreshore andbeds of water bodies in British Columbia isvested in the Crown, in practical terms,owners require the express consent of theCrown to construct most facilities.

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Riparian Rights In OtherJurisdictions

Most of the riparian rights reviewed inSection 2 are recognized in otherjurisdictions. The three riparian rights stillobserved in British Columbia are allrecognized in England under commonlaw. The principles covering accretion anderosion, access to water, and protection fromerosion of property are similar to thoserecognized here, as are the legal andjurisdictional arrangements for guaranteeingthose rights.

In the United States, the right to accreted landis essentially the same as it is in Canada andin England. Similar principles are used inthese jurisdictions to differentiate gradual andimperceptible accretion or erosion fromsudden or artificial processes.

Because such a large percentage of theforeshore is privately owned in many states,property owners have greater rights to protecttheir land and to build facilities for access todeep water andpublic rights are more restricted.

In general, the position adopted by BritishColumbia with respect to the three types ofriparian rights it continues to recognize isconsistent with that of other jurisdictions --both in theway in which these rights are defined and thelegal and institutional arrangements used toensure their protection.

Summary

Of the fundamental riparian rights and relatedproperty rights mentioned here, three haveeither been abrogated by statute in BritishColumbia or have, in fact, never existed asrights of waterfront property owners. Theyare:

• the principle of ad medium filum aquae• the right to water flow of undiminished

quality and quantity• the right to construct facilities on the

foreshore to provide for access to deepwater.

Of the remaining three, the right to protectwaterfront property from erosion is relativelywell established. The limits of that right aredefined by the boundaries of the uplandproperty: the natural boundary as it existsfrom moment to moment is the line pastwhich protective works are not to be erectedwithout consent of the Crown.

In order to have accreted land included in thetitle, the owner must demonstrate thataccretion occurred slowly and imperceptiblyover time. This fact is sometimes difficult toestablish.

The right of access has been specificallydefined with respect to the waterfrontproperty. Ingress and egress must be possiblefrom every point along the water frontageover every part of theforeshore.

In administering and protecting these rights,there are three areas where difficulties mayarise for the Ministry:

• foreshore and nearshore tenures whileavoiding interference with the riparianright of access

• claiming ownership of eroded lands• retaining riparian rights for the Crown

through the mechanism of a statutoryright-of-way over the riparian right of awaterfront property.

Guidelines for dealing with these issues arediscussed in Section 5.

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4. The Relationship Between Riparian Rights, Public Foreshore Use,And Land Act Tenure Administration

Under its mandate to administer aquaticCrown land, the Ministry of Environment,Lands and Parks employs variousmechanisms to provide for public foreshoreaccess, where feasible, and to protect theriparian rights of waterfront property owners.It also facilitates other uses of the foreshoreand nearshore by providing various types oftenure granted under the Land Act and byimplementing the specific commercial,industrial and recreational land use policiesdeveloped by the Ministry.

In granting tenure to aquatic land, the Crownmakes every effort to facilitate public accessto and along the foreshore. However, thereare instances where it is not possible toaccord this privilege.

Most tenures created over the foreshore ornearshore have specific limits on their natureand duration. The various types of tenure aredescribed here in general terms.

In almost all cases, tenures granted by theMinistry over foreshore or nearshore areas areseparate and distinct from the ownership ofthe upland property. The fact that a waterfrontproperty ownerhas obtained tenures over the adjacentforeshore does not mean that those tenuresare automatically assigned to futurepurchases.

Confusion sometimes arises when prospectivebuyers of waterfront property are mistakenly

led to believe that Ministry tenures held bythe owner "go with the property." TheMinistry must give its permission to transfertenure from one party to another. Thispermission is not withheld unreasonably,however. In addition, should the formerowners retain the leasehold of the foreshoreafter selling the property, they may have theright to restrain the new owner fromtrespassing on those leases. Of course, theleaseholder will also have to respect theriparian rights of the new upland owner,including the right of access to and from theproperty.

Prospective buyers should check with theMinistry to ensure that any development onthe foreshore or nearshore adjacent to theproperty is legitimate. Also, such purchasersshould not assume that any tenures in front ofthat property will be automatically assignedto them. Assignment may be possible, and itwill be considered upon application to theMinistry.

The Nature and GeneralProvisions of Tenure IssuedUnder the Land Act

Temporary PermitA temporary permit to occupy aquatic Crownland may be issued to allow investigation orto authorize temporary short-term use.Generally, temporary permits are issued forcommercial or industrial foreshoreoperations.

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Investigative uses may be authorized forperiods up to one year, while other temporaryuses may be authorized for up to six months.This type of permit does not necessarilyinclude the right to construct facilities orimprovements on the land.

Licence of Occupation

A Licence of Occupation authorizes theholder to occupy Crown land for a givenpurpose for a period usually not exceedingten years. The Licence is contractual and non-exclusive. It conveys a mere "right tooccupy," and not an "interest" in the land. Asa result, major improvements – includingstructures, buildings, and modifications to theland -- are not likely to be permitted underthis form of tenure.

To protect the public interest, the Ministryoften issues a Licence of Occupation wherethe tenure-holder does not require the long-term security of tenure. Because it does notconvey an interest in the land, a Licence ofOccupation does not give the holder a right torestrict public access across the licence area.

Lease

Lease tenure conveys a limited interest in theland and also allows for the construction ofimprovements on the land or formodifications to it. Often the applicant willhave to provide amanagement or development plan to ensureappropriate and efficient use of a lease. Thestandard term for foreshore leases is thirtyyears.As with other forms of tenure, a lease may beissued for a particular upland area, for a part

of the foreshore, or for submerged land. Thelatter is usually physically distinct from andnot abutting the mean ordinary low watermark.

The Ministry uses leases where the land is tobe developed or improved over time and/orwhere the applicant requires a measure ofsecurity of tenure to obtain financing orliability insurance before undertakingdevelopment.

The long-term nature of such developmentmakes lease tenure the most likely type to beinvolved in an infringement of the riparianrights of adjacent waterfront property owners.Since lease holders have an interest in theland, they technically acquire a right torestrict public access to and across the tenurearea by posting or other notice. Ministry staffwill often encourage leaseholders to providepublic access where it is clearly notdetrimental to the interests of theleaseholder.

Statutory Right-of-Way Over the RiparianRights of Waterfront Property

Under s. 214 of the Land Title Act, the Crownmay acquire a statutory right of way thattakes precedence over the riparian rights of awaterfront parcel, thus securing the riparianrights associated with that parcel to theCrown. It can do so either by gaining theconsent of the incumbent waterfront owneror, where the Crown still holds the waterfrontparcel, by registering the statutory right-of-way against the parcel before it is sold orleased. The circumstances where the Crownmay decide to seek a statutory right of way onits own behalf are discussed in Section 5.

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Crown Grant or Fee Simple Disposition

In instances where Crown upland will beconverted to private ownership, the Crowndoes not dispose of foreshore or the beds ofadjacent waterbodies by grant or by feesimple. Maintainingsuch lands as a public trust is considered to beof prime importance.

Even long-term uses of the foreshore arealmost always accommodated by lease tenure.As a result, permanent dispositions of Crownland are seldom involved in riparian rightsconflicts.

Riparian Rights and Land Act TenureAdministration in British Columbia

In granting foreshore and submerged landtenure and ensuring public access to andalong the foreshore, the Ministry takes theriparian rights of waterfront owners intoaccount in the followinggeneral ways.

Protection of Land from Erosion

The Ministry does not always authorize theconstruction of improvements or the placingof fill for protection of waterfront propertyfrom erosion or flooding. If suchimprovements or fill would impinge on theright of access from an adjacent riparianproperty or on the public right of navigation,or if they unduly affect public passage alongthe foreshore, authorization may bedenied.

Where such construction cannot be confinedto an area above the natural boundary of thewaterfront property, consent must be soughtfrom any other waterfront property ownerwhose right of access may be infringed upon,

before alterations to the foreshore areapproved.

In general, when the Ministry approvesimprovements or fill below the naturalboundary, it will ensure that public passagealong the foreshore is maintained.

Since the right to protect waterfront propertyis generally exercised above its naturalboundary, this right does not usually conflictwith the Ministry’s administration of land.However, where such improvements or fillhave been located on the foreshore withoutthe consent of the Ministry (that is, intrespass), decisions about legalizing them willnot be made until the riparian rights of anyadjacent waterfront property owners and thepublic interest are considered.Owners of waterfront property who havesuffered some degree of erosion should checkwith the Ministry before makingimprovements. If the land on which they wishto place fill or buildprotective structures is owned by the Crown,consent will be required.

Accretion and Erosion

Accretion

Where material gradually and imperceptiblyaccretes to a waterfront property and extendsits natural boundary towards the water,common law holds that the property ownerowns the accreted land. Because it is difficultto establish whether the land is in fact anaccretion, conflicts over the ownership ofpurportedly accreted land often have to beresolved on a case by case basis. Theprovisions of the Land Title Act and, in rarecases, the Land Title Inquiry Act guide theresolution.

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Where the accretion is valid and thewaterfront property has thus been altered, theMinistry makes the necessary adjustments inits land administration decisions regarding theadjacent foreshore.

Erosion

A more problematic question arises whenerosion moves the natural boundary of awaterfront property inland.

In the case of properties covered by asubdivision plan filed in the Land Title office,section 108(2) of the Land Title Act providesthat the owner's title is extinguished over landthat was covered by water at the time ofsubdivision (R. in Right of British Columbiav. Ogopogo Investment (1980), 23 B.C.L.R.43 (B.C.S.C.)). The Ministry takes the viewthat title would be extinguished even if theerosion had not occurred gradually andimperceptibly but, rather, by avulsion.

This view is based on an interpretation of s.108(2) of the Land Title Act, but at present**there is no case law in British Columbia onthis point.

Where the property has not yet been covered

by a subdivision plan, the common law andthe Torrens land title system appear to be atodds. The Ministry holds that the commonlawconcerning erosion would apply in suchcircumstances: that is, vhere an erosion hasoccurred through gradual and imperceptibleprocesses, the Crown can lay claim to theland located below thenewly-receded natural boundary.

The Crown may not be able to raise title tosuch land in the land title system until a courtdeclaration has been obtained. In theMinistry’s view, however, it may proceed tomake landadministration decisions in the interim basedon the common law doctrine that eroded landis owned by the Crown.

The Ministry may have to act in the publicinterest on instances of erosion of property.Should a waterfront property owner decide ata later date to construct improvements orplace fill at the site ofthe former natural boundary, the alterationsmight well impede public passage along theforeshore or block it altogether.

**Note that this document was originally written in 1990 and most recently amended in 1995.

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Figure 1: Tenure with Improvements Located Adjacent to the Foreshore in Front of aRiparian Owner

Access: Ingress and Egress

The final remaining riparian right -unimpeded access to and from every pointalong the foreshore adjacent to a waterfrontproperty - has a significant impact on theMinistry's administrationof land.

Tenure Abutting or Covering theForeshore

Figure 1 illustrates how the riparian right ofaccess can become a problem. This diagramshows an upland property and the adjacentforeshore and nearshore areas.

The improvement that abuts the meanordinary low water mark in Figure 1 wouldundoubtedly constitute an obstruction and anactionable interference with tile owner’s right

of access. In this case, the property ownerwould not have access to deep water for thepurposes of navigation from every pointalong the foreshore in front of the property.

It is not enough that the property owner couldget to deep water from every point along thenatural boundary of his property (that is, fromthe mean ordinary high water mark). Theimprovement would still constitute aninfringement of the Riparian right of access.

In Attorney General of the Straits Settlementv. Wemyss (1888), 13 A.C. 192 (P.C.), it washeld that the riparian right of access extends"from every part of the frontage, over everypart of the foreshore." Thus, if theimprovement only covered part of theforeshore, it would make no difference. Theimprovement would still constitute aninterference.

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Therefore, where a foreshore lease abuts themean ordinary low water mark or covers partof the foreshore and also extends in front ofprivately owned waterfront property, it islikely that any improvements placed on thatlease will constitute an interference with theowner's right of access.

Tenure Located Nearshore or Offshore

Baldwin v. Chaplin (1915), 21 D.L.R. 846(Ont. S.C.) indicates that whether aninterference with the riparian right of accesshas occurred will always be a question offact. Thus, the circumstances and resolutionswill differ from case to case.

In cases where a waterlot lease does not abutthe mean ordinary low water mark or coverpart of the foreshore but still extends in frontof privately owned waterfront property, thesituation is more problematic.

To make sure there is no infringement on anupland owner’s right of access, the Ministrytakes a conservative approach. Foreshoreleases in front of private waterfront are notnormally approved. This policy has beenbased on the finding in Redwood Park MotelLimited v. British Columbia Forest ProductsLimited (1953), 8 W.W.R. (NS) 241B.C.S.C.). The decision in this case held thatthe Crown has no power to authorize a lesseeto obstruct navigation or to unduly interferewith a riparian proprietor’s right of access.

In Figure 2, an offshore lease extends in frontof a privately owned waterfront property.Any improvement on that lease (such as a logboom) would interfere with the uplandowner’s ability to travel directly to the point

marked "X" on the diagram. However, itwould not prevent the upland owner fromhaving access to deep water from every pointalong the foreshore (indicated by the shadedarea on the diagram).

While this type of improvement might notconstitute an interference with the waterfrontproperty owner’s right of access, it could beactionable as an interference with their publicright of navigation. The decision in RedwoodPark (p. 242) affirmed that the Crown has nopower to authorize an interference withnavigation:

The right of navigation in tidal waters is aright of way thereover for all the public for allpurposes of navigation, trade and intercourse.It is a right given by the common law, and isparamount to any right that the Crown or asubject may have in tidal waters, exceptwhere such rights are created or allowed byan Act of Parliament. Consequently everygrant by the Crown in relation to tidal watersmust be construed as being subject to thepublic rights of navigation. It is not right ofproperty; it ismerely the right to pass and to repass and toremain for a reasonable time.

When the Ministry locates waterlot tenures, itmust ensure that any improvements will notconstitute an interference with the public rightof navigation. According to common law, thewaterfront property owner’s right ofnavigation is equivalent to that enjoyed byany other member of the public.The Ministry cooperates with the provisionsof the federal Navigable Waters ProtectionAct in locating foreshore and waterlot leasesand licenses.

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Figure 2: Tenure with Improvements Located Nearshore in Front of a Riparian Owner

Provided that an improvement, such as theone shown in Figure 2, is far enough awayfrom the mean ordinary low water mark toallow the adjacent waterfront property owneraccess to deep water from every point alongthe foreshore in front of the property, andprovided that the improvement does nothinder the public right of navigation, theimprovement should notinfringe on the waterfront property owner'srights.

The Baldwin decision was appealed to theOntario Supreme Court Appellate Division in1915. In dismissing the appeal, Justice J.Hodgins noted that:

... interference with the right of navigationwhich only renders access more difficult, butnot impossible, is an interference with apublic and not a private right and special

damage must be proved by the riparianowner who complains of such interference.While no case law precedent establishes howfar offshore such an improvement would haveto be located to ensure that it does notinterfere with the property owner's rights ofaccess or navigation, the Ministry hasdeveloped a guideline based on the decisionof justice MacFarlane in Nicholson v. Moran(1950), 1 W.W.R. 118 (B.C.S.C.). Thisguideline is described in Section 5.

In questions of navigation, the federalMinister of Justice and provincial AttorneyGeneral are the only authorities able to takeaction where the breach of navigation affectsthe public but does not affect particularindividuals. Individuals can only take actionin situations where they can show specialdamage affects them. This damage usuallyinvolves interference with a commercialoperation.

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Summary

The riparian right of access and theright to navigation enjoyed by riparianowners, in common with the public,have the greatest impact on theMinistry's administration of land.

The riparian right of access requires thatthe waterfront property owner be ableto get to and from deep water in anavigable craft of reasonable size fromevery point along the waterfrontproperty and from every point alongthe foreshore directly in front of it.

Any obstruction that makes itimpossible to reach every point alongthe adjacent foreshore from deep wateris likely to be actionable. Theobstruction is an infringement of thewaterfront property owner’s riparianright of access.

An obstruction located in front ofprivately owned waterfront property,which does not infringe upon theriparian right of access, may nonethelessconstitute an impediment to the owner’spublic right of navigation. However,the owner must be able to show specialdamage or the owner will only receivethe same consideration as the generalpublic.

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5. Administrative Guidelines

The following guidelines are designed to helpthe Ministry recognize and protect the rightsof riparian property owners, as well as theinterests of the general public inadministering aquaticCrown land. These guidelines are general innature. More specific procedural policiescovering these matters are set out in theMinistry’s Land Administration Manual.

Accretion and Change of the NaturalBoundary in Favour of the WaterfrontOwner

Where a riparian owner believes that therehas been a change in the natural boundary ofthe property over a period of time, resultingeither from accretion or from a receding ofthe level of theadjacent water body, the owner can apply tothe Ministry to determine whether this newland can be included in the title. TheSurveyor General, under delegated authorityfrom the Minister, makes this decisionaccording to the provisions of ss. 94 and 118of the Land Title Act.

The factors used to decide whether the landhas been accreted include:Has the land formed gradually andimperceptibly?Has the land grown outward from the bank,or has it emerged from the bed of the waterbody?Is most of the land in question now dry?Does the land now lie above the naturalboundary?What is the character of the soil andvegetation now found on the land? (Thisdetermination provides an indication ofaccretion only; it is not necessarilydefinitive).

Ministry regional offices can supply a list ofthe specific information required inapplications submitted to change the extent oftitle to recognize an accretion.

If the accretion of land is found to be valid,there is no charge for the land and the owner'stitle will be amended accordingly. However,the owner will be required to pay survey costsand anyadministrative charges.

Erosion and Acquisition of Land by theCrown in the Public Interest

On occasion, the Ministry will find itnecessary to take formal notice of the fact thata waterfront property owner's naturalboundary has moved inland as a result ofgradual and imperceptibleerosion.

To protect the interests of the public(particularly in attempting to maintain theprivilege of public foreshore access and use)and also to provide for other uses of aquaticCrown land, theMinistry may lay claim to eroded land.

According to common law, land that has beengradually encroached upon by water ceases tobelong to the riparian owner and becomes theproperty of the owner of the bed of the waterbody (Southern Theosophy v. South Australia(1982), 1 All E.R. 283 and Bruce v. Johnson(1953), O.W.N. 724 (Ont. Co. Ct.)). Therequirement for gradual encroachment isspecified in A.G.B.C. v. Nielson (1956), 5D.L.R. (2d) 449 (S.C.C.)

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Section 108(2) of the Land Title Act, providesthat in cases where the erosion has occurredbefore a subdivision plan covering theproperty in question was filed in the LandTitle Office, the waterfront property owner’stitle to that eroded material is automaticallyextinguished. In the Ministry's view,this is also the case in "avulsion" (where theprocess has occurred suddenly) provided thatthe area is covered by water at the time ofsubdivision.

Where no subdivision plan has been filed, theMinistry believes that the common lawdoctrine of accretion and erosion still applies.Accordingly, in the Ministry's view, sucheroded land belongs to the Crown even beforethe title of the waterfront property is amendedto show the new water boundary.

Staff of the Ministry’s regional offices maymonitor areas of shoreline that areparticularly subject to forces of erosion.Where erosion has clearly occurred over timeand where any action by a waterfrontproperty owner to reclaim the eroded area tothe former property boundary byimprovements or fill would have a negativeimpact on public use of the foreshore or onother uses of the aquatic Crown land, theMinistry mav assert its claim to that land. Itwould then seek the necessary adjustments tothe title of the property.

Retaining the Riparian Rights of aWaterfront Property for the Crown

The Ministry is aware that retaining theriparian rights of waterfront property in thename of the Crown under s. 214 of the LandTitle Act is sometimes in the public interest.In such cases theMinistry may seek the permission of anexisting waterfront property owner to allow

statutory right-of-way on behalf of theCrown. In cases where the upland is stillCrown land, the Ministry may choose toestablish such a right-of-way beforeallocating the parcel.

The Ministry may use this mechanism to gainor retain riparian rights in the name of theCrown where it is clear that plannedforeshore uses may be affected (over the longterm) by changes in the ownership of theadjacent upland and corresponding changes inconsent with respect to riparian access.

The Ministry uses this mechanismselectively; it is not designed to diminish thelegitimate riparian rights of the majority ofwaterfront property owners in the province.

Protecting the Right of Access in the Caseof Foreshore Tenures InvolvingImprovements

Unless the Crown has secured the riparianrights of the adjacent waterfront property, theMinistry will not allow foreshore tenures (onwhich improvements may be added) in frontof privately owned upland without the writtenconsent of the owner. Such consent does notabrogate the riparian rights that run with theland and is not binding on subsequent ownersof the property. Where the upland is held insome form of tenure but not in fee simple, theMinistry attempts to ensure that the term oftenure issued on adjacent aquatic Crown landis concurrent with the term of the uplandtenure.

If the Ministry has established a statutoryright of way in the name of the Crown, thussecuring the riparian rights, no consent isrequired from subsequent upland owners.

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Protecting the Right of Access in the Caseof Nearshore and Offshore TenuresInvolving Improvements

No firm guidelines exist for determining howfar out into the water an improvement mustbe located so that it does not interfere witheither the waterfront property owner’s right ofaccess or the public right of navigation.

1n order to "err on the side of caution," theMinistry follows the remarks of JusticeMacFarlane in Nicholson v. Moran (1950), 1W.W.R. 118 (B.C.S.C.) as a policy guideline.In discussing interference and reasonableaccess, Justice MacFarlane used a boat 30 to40 feet long with a draught of from 3.5 to 5feet as a standard to determine reasonableaccess. Such a boat is "a boat of reasonablesize to use in safety in the adjacent waters,being the waters of the Gulf Islands, onpractically all occasions."

The Ministry recognizes that interferencewith access and navigation has to be assesseddifferently in every situation because ofvariables such as the shape of the coastline,depth of water, tides, and so forth. However,Ministry staff will generally attempt to locate

nearshore and offshore tenures so that atlowest tide a 40-foot boat could still havecomfortable access to every point along theforeshore adjacent to the waterfront property,and to and from deep water with enoughroom to maneuver and turn around.

Providing that these guidelines are followedand that the tenure does not create aninterference with the public right ofnavigation or specially damage the waterfrontproperty owner, consent of the owner shouldnot be required.

The Right of Access and Tenure NotInvolving Improvements

Temporary permits and licences ofoccupation issued for the foreshore orrestricted to nearshore or offshore Crown landshould not require the consent of the propertyowner, if they do not involve improvementsthat would impede access.

If such tenures do involve improvements,however, even temporary ones, the guidelinesgiven above would apply.

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Selected References

Alward, Silas. "Rights and Wrongs of Riparian Proprietors."31 Can. L.T. 909, 1911.

Anderson, David. Riparian Water Rights in California: Background and Issues.Sacramento, Calif.: Governor's Commission to Review California WaterRights Law, 1977.

Armstrong, W.S. "British Columbia Water Act: The End of Riparian Rights."1 U.B.C.L. Rev. 583, 1962.

Coulson, H.J.W. Coulson and Forbes on the Law of Waters (Sea, Tidal and Inland)and Land Drainage. London: Sweet and Maxwell, 1933.

Farnham, H.D. The Law of Waters and Water Rights. Rochester, New York:Lawyers Cooperative Publishing Company, 1904.

Gould, John M. A Treatise of the Law of Waters. Chicago: Callaghan, 1883.

La Forest, G.V. "Riparian Owners Rights in New Brunswick." 10 U.B.B.L.J. 217, 1960.

Pomeroy, John N. A Treatise on the Law of Riparian Rights. Ed. by Henry C. Black.St. Paul: West Publishing Co., 1887.

Redel, W. "Notes on Riparian Rights." Victoria, B.C.: Land Management Branch, 1975

Whittlesey, John J. Law of the Seashore, Tidewaters and Great Pools inMassachusetts and Maine. Boston: Murray Printing Co., 1982

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Cases

Adamson v. Rogers (1896), 26 S.C.R. 159.

A.G.B.C. v. Nielson (1956), 5 D.L.R. (2d) 449 (S.C.C.).

Attorney General of the Straits Settlement v. Wemyss (1888), 13 A.C. 192 (P.C.).

Attrill v. Platt (1884), 10 S.C.R. 425.

Baldwin v. Chaplin (1915), 21 D.L.R. 516 (Ont. S.C.).

Booth v. Ratte (1890), 15 A.C. 188 (P.C.).

Bruce v. Johnson (1953), O.W.N. 724 (Ont. Co. Ct.).

Canada North Shore Railway Co. v. Pilon (1889), 14 A.C.

Champion v. Vancouver (1918), 1 W.W.R. 216 (S.C.C.).

Collins v. Barss (1848), 3 N.S.R. 281 (S.C.).

Cram v. Ryran (1894), 25 O.R. 524 (Q.B.).

Dalton v. Shore and North. Land Co. (1920), 28 B.C.R.

Delisle v. Arcand (1906), 37 5.C.R. 668.

Fudge v. Boyd (1964), 50 M.P.R. 384 (N.B.S.C. App. Div.).

Hamilton Steamboat Co. v. MacKay (1907) 10 O.W.N.

Kennedy v. Husband (1923), 1 D.L.R. 1069 (B.C. Co. Ct.).

Nicholson v. Moran (1950), 1 W.W.R. 118 (B.C.S.C.).

R. in Right of British Columbia v. Ogopogo Investment (1980), 23 B.C.L.R. 43 (S.C.).

Redwood Park Motel Limited v. British Columbia Forest Products Limited (1953), 8W.W.R. (N5) 241 (#C(B.C.S.C.).

Rorison v. Kolosoff (1910), 15 B.C.R. 419 (C.A.).

Southern Theosophy v. South Australia, (1982) 1 All E.R. 283 (P.C.).