Water boundaries in BC: Defying immense heaps of sawdust

1. Water boundaries in BC:Defying immense heaps of sawdust ABCLS – March 14, 2018 Dr. Brian Ballantyne brian.ballantyne@canada.ca

2. The equation Water bound = Principle(s) + Facts + k Where k = Negotiations with client, municipality, Crown, … (i.e. you can’t always get what you want)

3. 1921 subdivision

4. 1973 subdivision = 1921 OHWM

5. 2013 survey – 2m inland from 1973

7. Triple whammy: • Boundary inaccurate in 1921: • Boundary inaccurate in 1973. • Erosion by 2013.

8. Some answers • Yes (accretion below a dam?) • No (fill/alteration shifting a bound?) • No (historic flooding shifting a bound?) • Yes (avulsion leading to accretion?) • Yes (accretion along a slough?) • No (grant excepting dry ravines/gulches)? • Yes (landowner allowed to prevent erosion?) • Yes (dereliction dating to Abbot of Ramsey, 1365?)

9. Water boundaries on Canada Lands: That fuzzy shadowland (2015) http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/earthsciences/pdf/Water-bounds-monograph-English-web.pdf Subsequently, 50% more British Columbia! • Provincial Lands Regs(SK - 2017): Accretion is back! • Middlesex v MacMillan (ONCA - 2016): Navigability • Brydon v Thom (BCCA – 2015): Access & alteration • BC v Miller (SCC – 1975): Back of beach * One thing in this list is different than the other things

10. 12 steps to water boundary bliss • Parcel must be riparian when transferred. • Boundary has potential to shift. • Shift is a function of rate, not cause. • Accretion must be apportioned equitably. • Dams do not necessarily affect bounds. • Sudden shifts in water affix water bounds.

11. 12 steps to water boundary bliss • Many plans show water bounds poorly. • Riparian parcels are constrained. • Navigability continues to play a role. • Public interest affects water bounds. • Common & usual presence to be sought. • Principles wrestle with BC watercourses.

12. Bonus bliss!!!! 13. Principles apply to all lands (fee simple, First Nation Reserves, Crown parcels)!!!!

14. Is it a water bound?

15. Poster child 1896: Lot 134 surveyed 1911: Lot 134 granted “excepting a 1ch strip measured from HWM” – Monashee v BC (1981 - BCCA)

16. 1880 field notes

17. 1881 plan

18. 1896 field notes

19. 1969 opinion

20. 2018 plan

22. Is it a watercourse? • Source (inflow) • Outlet (outflow) • Gradient (slope) • Banks (cross-section geomorphology) Must have 3 outta 4 characteristics! Kapicki v Andruick(1975 – ABSC)

23. Water bounds are imprecise +/- 5m okey-dokey(e.g. planning purposes) Stonemanv Denman Island Local Trust (2013 – BCCA) “There is a certain imprecision, and perhaps imperfection.” Andrietv. Strathcona County (2008 – ABCA) There “is arbitrariness and opinion involved in deciding exactly where to determine the natural boundary to be” Harris v. Hartwell(1992 – BCSC)

24. 8 opinions within 18m

25. 8 opinions within 8m

26. Present natural boundary Land Act, s1: Visible high water mark of a body of water “where the presence and action of the water are so common and usual, and so long continued in all ordinary years” as to cause a distinct change in the soil and vegetation between the bed and banks. * my emphasis

28. Vegetation/soil • AG BC v. Miller(1975 - SCC) • Lawrence v. AG BC (2010 - BCSC) • Village of Island View v. Romashenko, (2010 - SKCA)

29. Island View v. Romashenko (2010 - SKCA)

30. BCLS #1

31. BCLS #2

32. BCLS #3

33. BCLS #4

34. Water bound is ambulatory if: • It shifts slowly, gradually and imperceptibly • The shift is incremental (happens at bound) • The cause is either: - natural forces (water or wind), or - inadvertent effect of legitimate structure (e.g. bridge across N SK River ca 1900)

35. What is accretion and erosion? • If the water bound moves out, then accretion has occurred and the parcel increases (reliction, retreat) • If the water boundary moves in, then erosion has occurred and the parcel decreases (submergence, encroachment)

36. 600 m of accretion over 10 years

37. Whence come these principles? • Clarke v. City of Edmonton (1929 - SCC) • Neilson v. AG BC (1956 - SCC) • Queen’s County v. Cooper (1946 - SCC) • South Centre of Theosophy v. S Aust. (1982 - PC) • Robertson v. Wallace (2000 – ABQB)

38. Clarke v Edmonton circa 1883

39. circa 1910

40. circa 1930

41. circa 2009

42. How is accretion apportioned? • Paul v. Bates (1934 - BCSC) • Re Brew Island (1977 - BCSC) • Andrietv Strathcona(2008 - ABCA)

43. #1: Perpendicular from baseline

44. #2: Proportioning new vs old

45. Re: Brew Island (1977 - BCSC) Accreted Land

46. Andriet v Strathcona#1 (2008 - ABCA)

47. Andriet v Strathcona#2 (2010 - ABQB)

48. Constraints on accretion = Parcels Pitt v Red Deer(2000 - ABCA): That part of the NE ¼ lying west of the Red Deer River. As the river moved out of the NE ¼, the parcel only increased to 160 ac. Johnson v Alberta(2005 - ABCA): That part of the section not covered by the waters of Buffalo Lake. As the lake receded, the parcel only increased to 640 ac.

49. Lack v AB (2011 - ABQB) circa 1900: Grant of the NE ¼ of S25, not covered by waters of Gull Lake 1930: Subdivision of part of NE ¼ of S25 2007: Gull Lake had receded 600+m • Out of NE ¼ of S25 • Into SE ¼ of S36