“Riparian Rights & Shoreline Reservations”

1. “Riparian Rights & Shoreline Reservations” Presentation to the Association of Newfoundland Land Surveyors May 29th, 2014 – Capital Hotel, St. John’s, NL January 5, 2020

2. Overview • Riparian water rights • Section 7 – Shoreline reservation • Natural accretion and erosion • Section 36 – “squatter’s rights”

3. Riparian Water RightsOrigins and Background • Latin riparius - from ripa, a river bank • Adjective - of, inhabiting, or situated on the bank of a river • Term appeared as such around 1840-50 • Originates in English common law and applied to former British colonies in Canada, Australia and NE USA. • Particulars vary by country, states or provinces. • “a system for allocating water among those who possess land along its path”.

4. Riparian Water RightsOrigins and Background • The term riparian comes up in the context of land and water ownership • The concept of a reservation • Public access to water • More recently, the term is used in an ecological sense • “riparian vegetation” – specialized plants that tend to thrive on shorelines and tolerate or are adapted to flooding • The concept of a buffer zone to protect the body of water and aquatic wildlife

5. Riparian Water RightsHow are riparian water rightsacquired?

6. Riparian Water RightsOwner’s Rights • In general all landowners have right to reasonable use of water as it flows along their property. This may include: • Ownership of land to centre of water course • Right to flow in natural quantity and quality • Right to protect against flooding and erosion • Right to own naturally accreted material • Right to navigation and accessing deeper water • Right to fishing (England and Wales) • Right to domestic use

7. Riparian Water RightsProblems with this system • Riparian owners also have responsibilities: • Cannot impound water or divert flow • Must return water without degrading quantity or quality • As more and more landowners develop along a body of water, management of the resource becomes impossible. • Public access and use of water ends up having to trespass on the rights of riparian owners

8. Riparian Water RightsWater Allocation Systems in Canada • Prior Allocation (first-in-time, first-in-right). Used in Western Provinces, water is licensed to land but allocations can exceed natural flows. • Public Authority Management. Mostly in the territories, water is managed by government through issuance of permits. • Civil Code Management. Québec allocates water through various departments such as Natural Resources (hydro), Agriculture and Fisheries (irrigation), Municipal Affairs (drinking water) • Riparian Rights. Ontario and Maritime Provinces • No limits on domestic use • Non-transferrable • Water may only be used on the land itself and must be returned.

9. Riparian Water RightsWater Rights in NFLD • Existing riparian water rights associated with land grants issued prior to Crown Lands Act of 1884 are generally valid. • After 1884 Crown requires a reservation adjoining a body of water, thereby preventing anyone from becoming a riparian land owner. • Water resources are now managed by the Department of Environment and Conservation under the Water Resources Act, SNL 2002. • Alterations to bodies of water are regulated • Water is allocated to maximize public benefit • Protection of public water supply areas

10. Riparian Water RightsExample • Based on what you learned so far, is what you see in this picture legal?

11. Riparian Water RightsWater Resources Act, SNL 2002 • Definitions • Activity • Adverse effect, • Alteration • Body of water • Diversions • Domestic purposes • Environment • Groundwater • License • Water, water resources • Wetlands

12. Riparian Water RightsWater Resources Act, SNL 2002 • Provisions of the Water Resources Act are subject to: • Inuit Land Claims Agreement Act • Act does not apply to water rights conferred under the: • Churchill Falls (Labrador) Corporation Act, 1961 • The Act does not affect ownership of water rights for: • Corner Brook under the City of Corner Brook Act • Mount Pearl under the City of Mount Pearl Act • St. John’s under the City of St. John’s Act • A municipality under the Municipalities Act

13. Riparian Water RightsUnder City of ______ Act • For Corner Brook and Mount Pearl: • Subject to the Water Resources Act • Provide for public water supply • Acquire waters required for providing a water supply • Acquire land adjacent to waters to prevent pollution • St. John’s is more specific: • Possession of Windsor Lake, Round Pond, Newfound Pond George's Pond, Petty Harbour Long Pond, Handy Pond and all ponds within the catchment area of Broad Cove River above an eleof 91.44 m and Crown land in the watersheds. • Construct dams

14. Riparian Water RightsWater Resources Act, SNL 2002 • Section 4 - Domestic purposes • This Act does not affect the riparian right of a natural person owning or lawfully occupying land adjoining a river, stream, pond, lake or other body of water, to use a quantity of that water as he or she requires for domestic purposes without appreciable alteration in its quantity or quality. • A natural person with a right under subsection (1), may pump or otherwise convey water for domestic purposes without a licence.

15. Riparian Water RightsWater Resources Act, SNL 2002 • Section 9 – Property in Water • Use and flow of water is vested in the Crown • Water rights cannot be acquired by prescription • Subject to rights of property (riparian rights) or some other instrument such as a grant, licence or statute • No right implied to cause an adverse effect on water • Possible right to cause an adverse effect was extinguished by the Act when it went into effect.

16. Riparian Water RightsWater Resources Act, SNL 2002 • Section 13 – Licence • Persons wishing to use water must apply for a licence • Section 14 - Priority • domestic purposes; • municipal purposes; • agricultural purposes; • commercial, institutional and industrial purposes; • water and thermal power generation purposes; and • other purposes prescribed by regulation.

17. Riparian Water RightsEnvironmental Buffers • Buffers are prescribed by resources agencies • DFO Guidelines for Protection of Freshwater Fish Habitat in NFLD. • 15m – development around water courses in urban or other developed areas • 20m no cut zone if slope <30% or 20 m + 1.5xslope(%) if slope >30% - for timber harvesting or silviculture • 30m – piling of wood, slash, sawdust; grubbing; single recreation cottage lot development • 100m – site camps, fuel storage, quarries/pits

18. Riparian Rights • Defined in the Dictionary of Canadian Law as being: “the rights of owners of property along a river or shore of other bodies of water.” • Has an affect on the approval and issuance of Crown titles.

19. Riparian Rights (cont’d) • The same Policy applies where there is no shoreline reservation and the upland owner has riparian rights. Approval and issuance of Crown titles under water bodies will not be given without consultation with the upland owner • Purpose of Policy is to be prudent in the protection of upland owners right to access water ways

20. Riparian Rights (cont’d) • Where the Crown owns the 10 or 15 metre shoreline reservation, the Crown has the riparian rights. • However, if there is an upland owner adjacent to the Crown land shoreline reservation, Lands Branch Policy does not allow for the approval and issuance of Crown titles for water bodies or the shoreline reservation without consultation and approval of the upland owner.

21. Section 7(Reservation of Shoreline) • Public reservation around freshwater bodies was not legislated until the Crown Lands Act, 1884. • Prior to 1884 a variety of reservations or no reservation used. • Crown grants issued prior to 1884 must be reviewed on a case by case basis to determine if a reservation was made. • Some grants issued under another statute and no provision made for public reservation.

22. Section 7 (cont’d)(Reservation of Shoreline) • Court of Appeal decision in 1994: • Crown Lands Act, 1884 not retrospective with respect to land granted prior to the statute. • Stated the 1884 legislation “… stipulated that ‘henceforth’, there would be reserved from all Crown grants, without the necessity of express wording, a strip of Crown land around lakes and ponds and along riverbanks.” • 3000 of 5000 grants issued prior to 1884 lost in the Great Fire of St. John’s in 1892.

23. Section 7 (cont’d)(Reservation of Shoreline) • Lands Act, 1991 added saltwater bodies (seashore). • Outlines and circumstances under which a minimum reservation width of 10 metres can be maintained. • Specific uses: • Residential. • Section 9 (church, school, cemetery, municipal building or municipal recreation park). • Installation of water/sewer works and construction of public roads by a municipality. • Existing Crown title issued prior to amendment in 2000.

24. Section 7 (cont’d)(Reservation of Shoreline) • Present Lands Act amended in 2000 requiring a minimum reservation width of 15 metres (50 feet) except for uses outlined in previous slide. • Outlines uses and circumstances under which approval may be given to acquire Crown title to the shoreline reservation. • Industrial undertaking. • Aquaculture. • Municipality for water/sewer works and public roads. • Residence – extent of intrusion only and was erected prior to Section 7 coming into force in 1991. • Boat house and wharves to extent they intrude.

25. Section 7 (cont’d)(Reservation of Shoreline) • Lieutenant Governor in Council must give approval and only under those circumstances outlined in the Act. • Original High Water Mark • Legal interpretation states that the shoreline reservation does not move through “man made” means and remains in place as if it was never altered or interfered with. • Example: if backfilling of a water body occurs the shoreline reservation does not move with a newly established, “man made” high water mark.

26. Natural Accretion & Erosion • Natural Accretion is defined as “growth by accumulation, usually applied to the imperceptible and slow build-up of land from the sea, a river or lake.” • Natural Erosion is defined as the “ imperceptible wearing away of the earth’s surface by water, ice or other natural agents under natural environmental conditions such as climate and vegetation, undisturbed by man”.

27. Doctrine of Accretion • Born of Roman law and developed as an integral part of English common law. • The riparian owner, or owner of land that bounds a water body right to the waters edge, may gain or lose land as a result of natural accretion or natural erosion. • Where there is a Crown land shoreline reservation between a land owner and a water body the Crown is the riparian owner.

28. Doctrine of Accretion(cont’d) • The accretion or erosion must be so slow and gradual that it cannot be observed in its actual progress from moment to moment or from hour to hour, although, after a certain period, can be observed. • The increase or decrease of the shoreline must result from the action of the water in the ordinary course of the operations of nature and not from some unusual or unnatural action by which a quantity of soil is swept away and deposited elsewhere. • Example: tidal waves, hurricanes, floods.

29. Doctrine of Accretion(cont’d) • The backfilling of a water body with the intent of producing an accretion by artificial means does not fit into the doctrine of accretion. Thus, the land owner cannot gain land.

30. Water S 15 m Example - Erosion Shoreline Reservation Upland Owner

31. 15 m Example - Erosion New High Water Mark

32. Example - Accretion New High Water Mark 15 m 15 m Additional Crown Land

33. Example – No Shoreline Reservation

34. Example – No Shoreline Reservation New Property Boundary Original Property Boundary

35. Section 36 • On January 1, 1977 adverse possession against the Crown was abolished • What does this mean? • Any 60 continuous years under Common Law rule for adverse possession no longer applies. • The only period of possession that counts is the 20 continuous years prior to January 1, 1977.

36. Section 36 (cont’d) • Crown lands mean: • All lands within the province, except: • lands that may be in the use or occupation of a department of GNL or of an officer or servant of a department as an officer or servant. • Those lands that may, before the enactment of the Lands Act, have been lawfully set apart or appropriated for a public purpose. • Lands lawfully alienated from the Crown (ie. Quieting of Titles Act). • Subsections 21(1) and 22(2), and Section 55 of the Lands Act. • Declared abandoned under Part II of the Lands Act.

37. Section 36 (cont’d) • Common misconception that the Crown is adversely dispossessed for Crown grants issued under Section 36 of the Lands Act. • Certificates of Title issued under the Quieting of Titles Act subject to provisions of Section 36. • As previously stated, adverse possession or “squatter’s rights” was abolished. • A person that can meet the statutory requirements of Section 36 has acquired an interest in Crown lands.

38. Section 36 (cont’d) • To acquire an interest in Crown lands under Section 36: • open, notorious, and exclusive possession prior to the enactment of this section. • 20 continuous years immediately prior to January 1, 1977. • continuous use for agricultural, business or residential purposes or for a purpose referred to in section 9 (churches, cemeteries, municipal buildings, schools, municipal rec. parks).

39. Section 36 (cont’d) • Even though an individual/party may meet the requirements of Section 36, the Minister or Lieutenant-Governor in Council is not obligated to issue a grant, and may do so subject to those charges, exceptions or qualifications that the Minister or Lieutenant-Governor in Council may decide.

40. Section 7 & Section 36 • Section 36 is subject to Section 7 of the Lands Act. • Both sections identify those specific uses that are permitted. • Where there is no alignment on use approval cannot be obtained for Section 36 on the shoreline reservation. • Example: Personal boathouse and wharf that existed pre-1957.

41. Thank you!