Common Law Right of Navigation Cannot be Used to Create Access to Lakes

The British Columbia Court of Appeal recently heard a case between a fishing club ("Club") and cattle farm ("Farm") involving lake access. The Club wanted access to two lakes situated on land owned by the Farm. One of the arguments raised by the Club was that the Farm's restriction of access infringed the Club's common law right of navigation. The Court rejected that argument, holding that the right of navigation does not include the right to cross private land to access navigable waterways. It stated that: 

The Right to Unobstructed Navigation

[114]   The Constitutional argument hinges upon whether the lakes in question are navigable waters, as defined by federal legislation and, if so, whether the Trespass Act causes operational conflict by restricting navigation. In my view, for reasons set out below, both questions must be answered in the negative. The lakes are not navigable waters, and the Trespass Act does not restrict navigation on navigable waters.

[115]   The definition of navigable waters in the federal legislation mirrors closely the definition of navigable waters at common law.

navigable water means a body of water … that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

(a)  there is public access, by land or by water;

(b)  there is no such public access but there are two or more riparian owners; or

(c)  Her Majesty in right of Canada or a province is the only riparian owner.

[117]   For reasons set out in more detail below, the evidence in this case does not support the conclusion that there is a reasonable likelihood that either Minnie Lake or Stoney Lake will be used as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples. As we have seen, there is no public access, and there are not multiple riparian owners.

[118]   In addition, in my view, no operational conflict would arise if the Canadian Navigable Waters Act effectively regulated navigation on the lakes. Navigators would use the lakes pursuant to lawful authority, and such use would be exempted from the provisions of the Trespass Act by s. 3. On the other hand, while the Navigable Waters Act would preclude the creation of obstacles in the navigable waters, it would not preclude riparian owners from controlling access to water over their property.

[119]   Nor has the Club pointed to any operational conflict between the provisions of the Canada Shipping Act, 2001S.C. 2001, c. 26 and the Trespass Act.

[120]   As the Province notes, the Trespass Act is about enforcement of property rights against culpable violation and neither creates nor extinguishes those rights. For that reason, the Province says constitutional issues do not arise on this appeal and the Trespass Act cannot be rendered non-operative by federal maritime law.

[121]   In the alternative, the Club relies upon an argument advanced by the Outdoor Recreation Council: it says courts have developed a flexible framework for determining the extent of appurtenant rights at common law. It argues that right of navigation includes all rights that are reasonably necessary to its exercise, including limited rights to go onto privately‑owned land adjacent to navigable waterways.

[122]   In advancing this argument, the Club addresses all of the characteristics of the cart (the appurtenant rights) before getting to the horse (whether either lake may properly be considered to be a navigable waterway).

[123]   It argues that regardless of what right is granted to a landowner, it is subject to the right of navigation: Gann v. The Free Fishers of Whitstable (1865), 11 H.L.C. 192 at 207–08. And “the right of soil [beneath navigable waters] … must in all cases be considered as subject to the public right of passage”: The Mayor of Colchester v. Brooke (1845), 7 Q.B. 339 at 374. (See also Wood v. Esson (1884), 1884 CanLII 44 (SCC)9 S.C.R. 239; and Donnelly v. Vroom (1907), 40 N.S.R. 585 (S.C.), aff’d 42 N.S.R. 327 (C.A.).)

[124]   The Club then turns to the cases addressing the extent to which the right of navigation affords access to the shoreline such as for towpaths along rivers. (Canvassing in some detail “the seminal early cases”, Ball v. Herbert (1789), 3 T.R. 253 and Blundell v. Catterall (1821), 5 B. & Ald. 268[1821] All E.R. 451 and the latter’s consideration in Newhaven Port v. East Sussex County Council, [2015] UKSC 7).

[125]   These cases do not strongly support the claim advanced, as they offer at best weak support for the proposition that one can exercise public towing rights on private riparian land. The dubious merit of the argument that the public can use private land to access navigable water is borne out in the decision in Canoe Ontario v. Reed (1989), 1989 CanLII 4237 (ON SC), 69 O.R. (2d) 494 (H.C.J.). In that case Doherty J. (as he was) first canvassed the jurisprudence, considering in particular: Gann v. Free Fishers of WhitstableNe‑Bo‑Shone Ass’n v. Hogarth, 7 F. Supp. 885 (W.D. Mich. 1934), aff’d 81 F. 2d 70 (6th Cir.); R. v. Robertson (1882), 1882 CanLII 25 (SCC), 6 S.C.R. 52McNeil v. Jones (1894), 26 N.S.R. 299 (C.A.)Rice Lake Fur Co. Ltd. v. McAllister (1925), 1925 CanLII 402 (ON CA), 56 O.L.R. 440 (C.A.)Marshall v. Ulleswater Steam Navigation Co. (1871), L.R. 7 Q.B. 166Wood v. Esson; Iveagh v. Martin, [1961] Q.B. 232; and Lyon v. Fishmongers’ Co. (1876), 1 App. Cas. 662. He then denied a general public right of portage for recreational canoeists, holding (at 507–08):

I conclude that the public right of passage does not carry with it a public right of portage across another's property. The public right permits passage along the river to the extent that passage is possible. If a natural obstruction temporarily or permanently prevents passage, the right of public passage remains although it may not be exercisable. Frustration of the ability to pass along the waterway cannot give rise to a separate and distinct right to go onto the property of a private landowner. One might well respond that the obstruction in this case is not a natural one but is a man-made one. It is, but I have no evidence before me from which I could conclude that the dam was unlawfully constructed, constitutes a nuisance, or that the Reeds are in contravention of any law by operating the dam. Indeed, as I understand the canoeists' position, they do not claim any right to have the dam removed; nor do they suggest that the Reeds' maintenance and use of the dam is actionable or unlawful. … Absent a successful attack on the Reeds' right to maintain and operate the dam, the canoeists' argument comes down to a contention that the Reeds should be made to sacrifice part of their property rights so the canoeists can more fully enjoy their public right of navigation. I can see no reason for such court-imposed largesse.

The Court went on to also conclude that the lakes in question were in any event not "navigable waterways". The decision can be found here:

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