Stream/river access rules?

kodiakjack

kodiakjack

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How does stream and river access work in Canada?

I know in the states, for the most part, if a river is banked on both sides by private land, river users can still access and travel up and down the river so long as they stay off the banks and below the high water mark. The idea being that if there’s a parcel of public land blocked in by private property, then one could potentially still access it by entering the stream where it goes under a bridge on a public road, then wade or float “through” the private property along the stream until you reach the public land. The thinking being that one could access relatively untouched public hunting grounds (as few other may be ambitious enough), and you could fish or bow fish on your way in and out.

With a large river, it seems pretty cut and dry, but with smaller streams... I don’t know. I know a few states allow stream access anywhere a high water mark exists, including dry creek beds. Others define it as “navigable waterways” with varying definitions of the term.

So where in Canada would one begin to look for these regulations or definitions? I’m assuming it’s on a provincial level, but it could be federal or municipal for all I know.

Any points in the right direction would be appreciated. Thanks.
 
Nova scotia is the same way as long as its a water course, you can follow it and fish it. The only way to have private water is a lake with no streems in or out and you own the land all the way around it.

If you were not fishing you may not be allowed too though. Our laws are based on legal fishing. Not hiking, walking or hunting.

Altthough with a boat you would be good to go
 
Evanguy said:
Nova scotia is the same way as long as its a water course, you can follow it and fish it or hike it. The only way to have privite water is a lake with no streems in or out and you own the land all the way around it.

In nova scotia your idea would work. You can follow a 30km river with zero reguard to land owners or privite property
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Now is a “watercourse” defined anywhere? Are there criteria like width, or depth, or flow, or water has to be present, etc?

And is this just “knowledge you know” or is there applicable regulations somewhere? Thanks :)
 
May have answered my own question here...

From wiki:

“Definition of Navigable Waters
Edit
The Act is relatively silent about the complete definition, saying only that a “navigable water” includes "a canal and any other body of water created or altered as a result of the construction of any work."[12] The Supreme Court of Canada, however, adopted the "floating canoe" threshold in 1906, holding that any water that was navigable and floatable was within its scope.[13]

"The definition of ‘navigable water’ is broad and inclusive, and must be interpreted by relying upon a definition provided in the NWPA and related jurisprudence. Briefly, if a craft is able to pass over a body of water, the body of water would be considered navigable. The craft could be as large as a steamship or as small as a canoe or a raft." [6]

In 2011, the Ontario Superior Court of Justice concluded that the common law of navigability “requires that the waterway be navigable” and “must be capable in its natural state of being traversed by large or small craft of some sort.” It summarized the Canadian jurisprudence on this matter as follows:[14]

1. A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort—as large as steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water.

2. "Navigable" also means "floatable" in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms.

3. A river or stream may be navigable over part of its course and not navigable over other parts.

4. To be navigable in law, a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used.

5. According to the Civil Code of Quebec, the river or stream must be capable of navigation in furtherance of trade and commerce.[15] The test according to the law of Quebec is thus navigability for commercial purposes,[16] but that is not applicable in the common law provinces.

6. The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public.

7. Navigation need not be continuous but may fluctuate seasonally.

8. Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points.

9. A stream not navigable in its natural state may become so as a result of artificial improvements.

Therefore, navigable waters include all bodies of water that are capable of being navigated by any type of floating vessel for transportation, recreation or commerce. In that respect, frequency of navigation may not be a factor in determining a navigable waterway — if it has the potential to be navigated, it will be determined “navigable”.”


Number 7 is interesting, as I’d interpret that as dry river beds...
 
The Carp river, where it passes through Kanata (Ottawa) is classified as a navigable waterway, even though that ducks, standing in it in the summer, barely get their ankles wet.
 
We have a creek that has water across a farm. According to my dad if it has a name on a map it can be accessed publicly
 
There’s two reasons I ask.

1. I’d like to get more into bow fishing. Living in SW Ontario, there are little streams everywhere. Most of which could easily “float a canoe”. There’s a lot of carp in them and being able to wade upstream away from fishing pressure by bridges could be beneficial, as well as get me away from the fisher folks who don’t think too highly of bow fishing.

2. At our deer camp in eastern Ontario, there are large patches of crown land, but only a handful of trails that acces them. Rifle season can be a bit of a circus. But if I approach the Crown from the private side where a stream runs through, I can get myself set up quietly on crown without the roar of dozens of quads, or maybe even in such a way that deer responding to pressure from the trail sides may wander towards me.

Obviously a lot of research needs to be done to make sure the streams are passable, etc. but maybe a chance to refresh the “same-old” annual hunt.

Thanks for the input folks.
 
kodiakjack said:
There’s two reasons I ask.

1. I’d like to get more into bow fishing. Living in SW Ontario, there are little streams everywhere. Most of which could easily “float a canoe”. There’s a lot of carp in them and being able to wade upstream away from fishing pressure by bridges could be beneficial, as well as get me away from the fisher folks who don’t think too highly of bow fishing.

2. At our deer camp in eastern Ontario, there are large patches of crown land, but only a handful of trails that acces them. Rifle season can be a bit of a circus. But if I approach the Crown from the private side where a stream runs through, I can get myself set up quietly on crown without the roar of dozens of quads, or maybe even in such a way that deer responding to pressure from the trail sides may wander towards me.

Obviously a lot of research needs to be done to make sure the streams are passable, etc. but maybe a chance to refresh the “same-old” annual hunt.

Thanks for the input folks.
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My rule of thumb has been if i can get access to a body of water legally( be it from property i have access to, to bridge embankments, to publick boat launches and will float my canoe , its legal.

Mind you some people have land claims for the land under the water. In this case you can be on the water but cannot step out of a craft and stand in the river.

Have regs handy if you decide to travers water that goes through the middle of someones property
 
kodiakjack said:
Now is a “watercourse” defined anywhere? Are there criteria like width, or depth, or flow, or water has to be present, etc?

And is this just “knowledge you know” or is there applicable regulations somewhere? Thanks :)
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im not sure what exactly one is but i know you need a permit to redirect a water course or build a bridge from DNR, i have a seasonal stream on my land that is about 10" deep in the spring and fall and average 3-6' wide, dry in summer and i need a permit to redirect/ reshape/ build a bridge (that touches the banks). and if its big enough to need permits to touch its a defined water course


here is INFO on what one is fior nova scotia.
https://novascotia.ca/nse/watercourse-alteration/

looking into it a bit more the water needs to be running through to be able to assess

"uncultivated land" means land that is in its natural wild state, and includes also land that has been wholly or partially cleared, but is otherwise in its natural state. R.S., c. 14, s. 2.

https://nslegislature.ca/sites/default/files/legc/statutes/angling.htm
 
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In Ontario it is a mixed bag. Generally a small stream that runs through private land, the bed will be privately owned. Rule of thumb for navigability is that if it can float a small kayak at some point in the year (spring freshet) it is navigable. You can float on it but not wade since the underlying land is privately owned.

There are also a mishmash of Crown reserves on some waterbodies which may still exist. There is really no one spot to find this info however since most are historical and relate back to previous uses like barging or log driving.
 
Personally, if there is water in the waterway, I would go ahead and use it. Pretty much the worst that could happen would be the landowner asking you to leave. Then you could decide whether or not you want to push it, in which case the MNR/OPP could be brought in. If they side with the landowner, they'll tell you to leave. I've had a rather lengthy discussion with a couple of CO's around the issue of unintentional trespass, and they told me that unless it is a blatant case, they will vary rarely charge someone. Then, you again have the option of backing off or escalating to the next step. If it were me, this is where I would drop it, but you may decide to take the matter to the courts.
 
9.3mauser said:
https://www.chinneck.ca/did-you-know-that-the-law-of-navigable-waterways-was-recently-clarified-by-the-ontario-court-of-appeal/

https://www.advocatedaily.com/none-creek-not-a-navigable-waterway-ontarios-court-rules-in-severance-dispute.html
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That’s an interesting use of the act...

Unrelated:

If a landowner DID have ownership of a creek bed (and was aware of it from the 150 year old land transaction), to lawfully prevent trespassers, would they not need to post it as “no trespassing” like regular land? (Talking Ontario btw)
 
kodiakjack said:
May have answered my own question here...

From wiki:

“Definition of Navigable Waters
Edit
The Act is relatively silent about the complete definition, saying only that a “navigable water” includes "a canal and any other body of water created or altered as a result of the construction of any work."[12] The Supreme Court of Canada, however, adopted the "floating canoe" threshold in 1906, holding that any water that was navigable and floatable was within its scope.[13]

"The definition of ‘navigable water’ is broad and inclusive, and must be interpreted by relying upon a definition provided in the NWPA and related jurisprudence. Briefly, if a craft is able to pass over a body of water, the body of water would be considered navigable. The craft could be as large as a steamship or as small as a canoe or a raft." [6]

In 2011, the Ontario Superior Court of Justice concluded that the common law of navigability “requires that the waterway be navigable” and “must be capable in its natural state of being traversed by large or small craft of some sort.” It summarized the Canadian jurisprudence on this matter as follows:[14]

1. A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort—as large as steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water.

2. "Navigable" also means "floatable" in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms.

3. A river or stream may be navigable over part of its course and not navigable over other parts.

4. To be navigable in law, a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used.

5. According to the Civil Code of Quebec, the river or stream must be capable of navigation in furtherance of trade and commerce.[15] The test according to the law of Quebec is thus navigability for commercial purposes,[16] but that is not applicable in the common law provinces.

6. The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public.

7. Navigation need not be continuous but may fluctuate seasonally.

8. Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points.

9. A stream not navigable in its natural state may become so as a result of artificial improvements.

Therefore, navigable waters include all bodies of water that are capable of being navigated by any type of floating vessel for transportation, recreation or commerce. In that respect, frequency of navigation may not be a factor in determining a navigable waterway — if it has the potential to be navigated, it will be determined “navigable”.”


Number 7 is interesting, as I’d interpret that as dry river beds...
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In Ontario, and many other provinces, access depends on navigability though there may be other restrictions beyond that. The wiki list is right on some points and woefully wrong on others. There is a great deal of legislation and common law regarding navigability but unless it is well established (like say Lake Erie or the Ottawa River) it really is case by case. The Beds of Navigable Waters Act basically says all navigable waterways are not granted to private owners and remain public highways unless specifically granted in a Crown Patent. The key however is if they were navigable at the time of the grant from the Crown. The only sure way to determine that is to get a court to decide it based on available evidence. No artificial waterway is public unless is has been dedicated as a 'highway' even if you can float a cruise ship on it. In the past 'navigability' used to require that the river is or had been used for commercial purposes, like logging even if it was only seasonal. But more recent determinations will conclude a river is navigable even if it is for recreational purposes and not much larger than a swale.
 
At one time I owned a large acreage in the Huntsville area (Ontario). It had a large creek running through it, which was considered under law navigable. Our deed however was specific stating we owned the creek bed. But people were allowed to land along the creek shoreline for a distance of 10 ft. back from the waters edge to seek rest and shelter if need be. So technically since we owned the creek bed you would be trespassing by walking up the creek with waders on. But I could not stop you from paddling your canoe up the creek and stopping along the shore line to have lunch and a pee and then carrying on. The creek that ran through my other property in Ontario had no specifics written into my deed other that I did own the creek bed.
So I would say based on my experiences your success having access on rivers and creeks which flow through private lands may depend on what is written into the landowners deed. No land owner in Ontario owns the water as far as I am aware. So paddling your canoe should be legal, getting out of it on the shoreline or stepping on the river bottom however may be different story.
 
mrgoat said:
At one time I owned a large acreage in the Huntsville area (Ontario). It had a large creek running through it, which was considered under law navigable. Our deed however was specific stating we owned the creek bed. But people were allowed to land along the creek shoreline for a distance of 10 ft. back from the waters edge to seek rest and shelter if need be. So technically since we owned the creek bed you would be trespassing by walking up the creek with waders on. But I could not stop you from paddling your canoe up the creek and stopping along the shore line to have lunch and a pee and then carrying on. The creek that ran through my other property in Ontario had no specifics written into my deed other that I did own the creek bed.
So I would say based on my experiences your success having access on rivers and creeks which flow through private lands may depend on what is written into the landowners deed. No land owner in Ontario owns the water as far as I am aware. So paddling your canoe should be legal, getting out of it on the shoreline or stepping on the river bottom however may be different story.
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What your deed says, or what the registry office has on record is in no way conclusive as to what your rights are regarding water courses or boundaries. Conflicts between title and navigability (ie who owns the waterway) are rife in Ontario. I can point to PINs in the registry office that for the same watercourse go from exclusion to 'ad medium filum' (the centerline) to ownership within yards of each other. Basically, registry office records are meaningless in determining ownership based on navigability.
 
mrgoat said:
At one time I owned a large acreage in the Huntsville area (Ontario). It had a large creek running through it, which was considered under law navigable. Our deed however was specific stating we owned the creek bed. But people were allowed to land along the creek shoreline for a distance of 10 ft. back from the waters edge to seek rest and shelter if need be. So technically since we owned the creek bed you would be trespassing by walking up the creek with waders on. But I could not stop you from paddling your canoe up the creek and stopping along the shore line to have lunch and a pee and then carrying on. The creek that ran through my other property in Ontario had no specifics written into my deed other that I did own the creek bed.
So I would say based on my experiences your success having access on rivers and creeks which flow through private lands may depend on what is written into the landowners deed. No land owner in Ontario owns the water as far as I am aware. So paddling your canoe should be legal, getting out of it on the shoreline or stepping on the river bottom however may be different story.
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Interesting. So, as the property owner in that situation, would you make a point of having words with anyone wading up the creek?

It would seem to me, (if I were such a property owner) that there is no greater threat to my property or security whether stream users were floating up or wading up. I think regardless of what my lease said about the creek bottom, I’d just ignore it and treat it like public access. If there’s enough water to float a canoe, I’d rather people be free to step out and pull it past rocks and roots, etc. without taking additional risks staying in the boat cuz they’re scared of getting dinged for trespassing if the touch the bottom.
 
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