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Access to Navigable Waters

This material is intended for informational purposes only and is not
a legal opinion and therefore cannot be relied upon in the event that a reader
faces civil, criminal or quasi-criminal liability arising from the use of, or
entrance upon, private property abutting a waterway. By Chris Hutton

There are two pieces of legislation that are relevant to the question of access to fishing waters in the Province of Ontario. The first, and most important, is the Beds of Navigable Waters Act [R.S.O 1990 c. B.4]. The second is the Heritage Hunting and Fishing Act, 2002 [S.O. 2002, c. 10].

The right to hunt and fish

With the proclamation of the Heritage Hunting and Fishing Act, 2002, the Government of Ontario recognized that hunting and fishing have played important roles in shaping Ontario's social, cultural and economic heritage and that recreational hunters and anglers have made important contributions to the understanding, conservation, restoration and management of Ontario's fish and wildlife resources. The Act not only provides for the establishment of the Ontario Fish and Wildlife Heritage Commission, but specifically creates, for the fist time, a statutory right to hunt and fish in the Province. Specifically, subsection 1(1) of the Act provides that:

“A person has a right to hunt and fish in accordance with the law.”

The right to hunt and fish is not an unfettered right. You have to exercise that right, “in accordance with the law”. What this means is that as long as you have a licence (if you are required to have one) and you respect::

a) the various regulations regarding seasonal closures, equipment restrictions, catch and possession limits, and;
b) private property rights,

you have a right to fish which is recognized and protected by law in this Province.

The regulations regarding licenses, seasonal closures, equipment restrictions, and catch and possession limits can be obtained in printed form from your local bait and tackle dealer or the Ministry of Natural Resources.

Water access

It is clear that you cannot trespass upon private property while exercising your right to hunt and fish. Private lakes and ponds (bodies of water without deeded public access) are off-limits unless you have permission from the landowner. The question becomes more complex when you consider other bodies of water that are accessible to the public. The Beds of Navigable Waters Act addresses the issue in section 1 of the act, specifically it provides that:

“Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee”

Section 1 of the Beds of Navigable Waters Act creates a statutory presumption that owners of land abutting navigable waters (or streams) do not have ownership of the lake-bed/stream-bed, unless the original Crown land grant specifically states that the lakebed/streambed is included as part of the property. There are some exceptions to this rule, specifically:

a) if the land was granted before 1911 (the year that the Act was first proclaimed) and a court determined before 1911 that the landowner also owned the rights to the stream bed, or;
b) the landowner establishes to the satisfaction of a court that a water power enterprise of some sort was established in the waterway before 1911, and the landowner had a reasonable belief that he or she had the right to use the streambed for such purpose, or;
c) the waterway is designated as one to which the Act does not apply (at this time there is only one such waterway, located in Merritt Township in the District of Sudbury).

Crown land grants which specifically include rights to the streambed are rare, and were/are usually made in relation to places where mills, power dams or hunting/fishing clubs were/are to be established. These places are usually pretty obvious and are usually posted. That being said, the best way to satisfy yourself that your exclusion from a waterway is legitimate is to head off to the Registry Office and look at the original Crown grant to see if such rights were specifically granted.

If the streambed was not specifically granted to the abutting landowner, the bed of the waterway is Crown Land and can be used by the public to exercise its right to hunt and fish.

The question of Navigability

The question of whether or not a particular waterway is “navigable” is more problematic. If a waterway is not, “a navigable body of water”, section 1 of the Beds of Navigable Waters Act does not apply and the landowner's rights would be considered to extend into the streambed. Not surprisingly, the issue of what “navigable” means (within the context of the Beds of Navigable Waters Act) has, from time to time, been the subject of litigation in this Province.

The first cases concerning the issue of navigability were primarily focused on the question of whether or not a waterway could be used for commercial purposes (i.e. shipping goods or floating logs). The first test of navigability therefore included the consideration of whether or not the waterway was a commercially viable means of transportation. That criteria has recently been deemed not to be conclusive of the issue, but rather evidence that a waterway is navigable (but it is not an essential condition to prove navigability).

Essentially, the question of navigability will be looked at by the court from two perspectives - historic use and present use. If any of the following are found by a court considering the issue of navigability of a particular waterway to be fact, the waterway will be considered to be navigable:

a) it is used for commercial shipping;
b) it is used by the public as an “aqueaous highway” (i.e. it must have real or practical value to the public as a means of transport from one point of public access to another). The vessels being used do not have to be large - if the waterway is used by small watercraft (i.e. canoes, inflatable rafts, kayaks, paddle boats), or used by the public for transportation in the winter (i.e. snowmobiles, cross-country skies, snowshoes), it will be considered to be navigable;
c) it is capable of being used by the public as an “aqueaous highway”. In situations where no actual present use of the waterway can be established, the court will look at historic use of the waterway and expert information regarding the present characteristics of the waterway to determine if it can in fact be used as described above.

The issue has been explored further, and a court will now find that a waterway is navigable, even if:

a) it is only navigable during certain times of the year (i.e. spring run-off);
b) the waterway is interrupted by dams or other obstructions (natural or man-made) which impede navigation;
c) it is navigable in some parts, but not others (in such cases section 1 of the Beds of Navigable Waters Act applies only to those sections that are navigable);
d) if the river is navigated for purposes other than transportation (i.e. for fishing or other recreational pursuits)

The myth of the “highwater mark”

Many people believe that the public has a right to use land up to the highwater mark of a navigable waterway while traversing the course of the waterway. Except for a very brief period in time (between 1940 and 1951, when an earlier version of the Beds of Navigable Waters Act provided that the Crown owned the beds of navigable waterways to the highwater mark of the waterway) the law in Ontario has always been that the boundary between a waterway and the abutting land is the waterline. In other words, if you are out of the water, you could be on private property.

Generally, the public has no right to enter on to private property abutting a waterway unless consent of the landowner has been granted. You can be liable to penalties if the land is posted against trespassers (i.e a “No Trespassing Sign” or a red dot painted on objects along the boundary of the property).

The public's right to use a navigable waterway (and the bed of the waterway) does not include a right to enter upon private property to portage around a natural obstacle in the waterway, or a legally constructed obstacle in the waterway. Unless there is a recognized right (at law) to portage, you need permission to travel overland. What this means is that although you have a right to use a navigable waterway, your right may not be able to exercise that right in some circumstances. Without permission to use the abutting land as a portage, you run the risk of facing trespass charges.

Landowners beware !

Section 18(2) of the Fish and Game Act (Ontario) prohibits unauthorized persons from giving notice prohibiting activity on Crown land. If you own property abutting a navigable waterway and you do not allow people to use the waterway for fishing and/or hunting, you are contravening section 18(2) of the Fish and Game Act (Ontario) and may be liable to have a penalty imposed.

NOTE: This material is intended for informational purposes only and is not a legal opinion and therefore cannot be relied upon in the event that a reader faces civil, criminal or quasi-criminal liability arising from the use of, or entrance upon, private property abutting a waterway.