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luv2drift

Essa township permit????

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well he should follow the law...but towns are starting to make laws that they have no right to put into place...I would think waterways are Canadian government jurisdiction not local and so they laws would be meaningless....IMHO

 

but what do I know.......

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Typical government cash grab, just wait till other municipalities get the same idea.... I live in angus and mostly don't fish the area too many people for my liking, plus there plenty of better spots on the notty.

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As promised I spoke with a real estate lawyer friend of mine on the weekend and she told me the following: Essa Township and any township as far as she has found do not own the water/river, or the immediate shorline. That is a legal term called "raparion rights". There are very few properties that have raparion rights that include ownership right to the water's edge.

 

Therefore, why do anglers pay to use the river to fish when Essa doesn't own it???

 

Like one other said on the board....40 Bucks for people who litter??? Exactly put some by-law agents in camou and ticket the people tossing garbage everywhere????

 

.....and to you Gerritt........there's always one in every crowd that wants to get his two cents in at a cop. Feel better.... and for the record I do not committ assaut, robbery etc.

If you want every other water body or river in Ontario to start charging feel free to pay the fees. You must be wealthy. I am not wealthy and never intend to be.... so in 20 years have fun paying 2500 bucks to fish in ontario. Hope its not an "I told you so"?

 

so I will not be paying the 40 dollars!

Edited by luv2drift

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Whoops, I forgot to pay my $40 on the weekend when down at the Notty.

 

I was looking for a Kiosk in the bush, but no luck

 

:D

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and just for the record...if protesting the 40 bucks make sure you identify yourself, obey parking signs, have your fishing licence on you, and have you driver's licence, ownership, and insurance in your vehicle

 

thank you have a nice day.

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some posts of any dealings with the by-law officers would be greatly appreciated.

 

Where were you?

What they said?

What you said?

Did you pay?

Edited by luv2drift

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Like the song say's " To save paradise put up a parking lot"

 

Um,

 

I think it's "They paved paradise........."

 

 

That's O.k.

 

Neil Young has a song "The Cripple Creek Ferry"

My wife thought it was:

 

The Purple Greek Ferry.

 

LOL.

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Appreciate the work you've done on researching this info. I understand the littering problem but if you really want to solve it have a by law officer drive by one day a week for a few hours and hand out a few littering fines. That will get peoples attention too and use the fine money to pay for clean up. I'm sure there's not that much going on in Essa that a by law officer can't spare 2 or 3 hours a week.

 

I personally think the fee is crap. My real issue with it is that if people just line up to pay without protest what's to stop other municipalities and townships from charging fees. There's garbage along plenty of other rivers too. Maybe next year the City of Kitchener will charge me to fish bass in the Grand. And so will Waterloo, and Cambridge. I realize this is an exaggeration now but it's not that impossible.

 

And I'm not trying to start an argument here, though I suspect I people will disagree, but still would like to make a point. Although you may be able to stand in the riparian area and fish, what happens if you cross township land to get to said fishing area. It seems like then they may have something on you. I don't know the area well enough but if you do park and walk across township land can they still charge you?

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that's no exaggeration!! that's what will happen! You will be paying everywhere.

 

Most townships have lots of people making around 13 to 25 dollars an hour that pick up a heck of a lot of garbage in a day! I know I live in a township and I see their good work.

 

NOW i'm not saying the town should pick everyone's garbage up!

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yeah but

 

if they only charge people with fishing rods...then they are breaking the law....I paid for my fishing license and that is provincial not local jurisdiction ..if they charge every person who walks the waters edge fine ..

 

but just people with a fishing rod...then that is Bull.......and possibly against the law ...that's my story and I am sticking to it

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Riperian rights are a contencious issue around the entire province. There are two pieces of leglislation that govern them 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 land on both sides of a river but do they indeed own stream bed. Unless it was deeded by the queen prior to the first world war, and the land has been retained in family possession without a transfer of ownership then the potential of them in fact owning stream bed is a distinct possibility. The vast majority of the rest, when transfer of property ownership occured then that right was returned back to the crown

The right to hunt and fish

 

More background on this topic

 

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.

As a rule this right again is rarely transfered within a real estate transaction.

 

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.

 

 

Now the $40 bend is a fee to access the land and fish the river( Its not a fee to fish the river) and while you can argue it plain and simple you are tresspassing on Private Property ( in this case township land) and as such can be fined under the tresspass act. Many townships have by laws that in certain cases dont make sense but they exist, a classic local point is the land on Bronte below Rebecca to the Lake, OMNR opened it up to angling by removing the social sanctuary there and the township passed a by law making it illegal to fish from shore, but again cant stop a boat or someone in the river.

 

Bottom line with miles of miles on the Notty to fish ( some very popular some off the radar) if you dont want to fish the bend go elsewhere, but remember there is a stretch of no kill water there also there are 3 distinct properties that do in fact own stream bed and 1 that will have a half baked crazy lady come with a shot gun to you....

 

If there is a stretch of water you wish to fish research it talk to the land owner and if you cant gain access go to the local registry office verify his land status and if you choose still enter via legal method, and ensure you have a copy 18 ( 2 ) of the act to ensure the police charge the land owner, personally, again I would rather fish a different piece of water as fishing is about relaxing not confrontation, dont we get enough of that all day

 

Hope this helps

Edited by aniceguy

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I AM SOOO GLAD!! I stopped fishing rivers/trout 4 years ago. I have to agree that $40 is bull. How about a protest I will sign it, and i am sure we can get alot more to sign just on this board. Here's a thought, don't fish it and save your $40 for gas to another trib.

That's life, quick buck

 

Daniel

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No one can introduce fishing restrictions outside of the feds and province. No fees, no rules, no anything. Period.

Municipalities are laden with illegal restrictions. Many small towns do not put their bylaws in front of a lawyer first. They can't afford it. my mother is a former town councilor and now is the by-law enforcement officer and I've read their bylaws...many of them are totally unenforcable. She knows it and doesn't write tickets on them.

There is nothing wrong with challenging a bylaw you find illegal or offensive. Just know the risks involved. It is not up to the anglers to pay for the clean up of everyone. If they want to pass a land use bylaw making EVERYONE pay 40 bucks to be there, that would be legal.

The town of Niagara-on-the-Lake made a bylaw banning fishing from a local public dock. Result..unenforcable and not enforced.

The reason was the same..littering.

So, logic says if you cannot enforce littering laws, which near a waterway can be a major offense, HOW THE HECK CAN YOU ENFORCE A NEW AND DUMBER LAW!

You don't need more laws if others are not being followed, you need greater enforcement of the existing laws.

I will gladly put my name and picture to that statement.

Do not let municipalities tread on your rights unchallenged. Ask for a delegation at the next town council meeting and tell them. If we let it go quietly, others will follow.

The water is federal gov't property and we have already paid for the right to fish it.

I was a Fish and Wildlife Guardian with the MNR for years and this was made very clear. Municipalities do not usurp the province...ever.

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Municipal by laws have teeth, essa's fees are 10 for a day or 40 for the year but they are for access to city owned parks, they are not for the right to fish the Notty, and as such can and are enforced by by law enforcement

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aniceguy...kudos

 

 

can you clearify a few points for me.

 

1. The area in question should be "navigable" because there is a well established tourist canoe route.

2. Ok forget the shoreline lets assume its all private. What about an angler who waded into the designated area? As you know the signs for the trespass to property act have several conditions they must adhere to.

3. There are conflicting subjects surrounding the issue. It seems it is written that land owners can be charged and users of the water can be charged???

4. A fee to access the land and fish the river vs a fee to fish the river. If I access the land which Essa Township owns and I walk down with a back pack on and wade out to the middle of the river and don't start the act of fishing until in the middle of the river than I should be fine? If I walk down to the shoreline and shore fish I am trespassing?

5. In order to lay charges, there must be some significant evidence recorded by the person laying the charge...you can beat a speeding ticket if the copper doesn't know the speed of sound!

6. 40 bucks vs 50 bucks for the trespass ...I'll take the chance I might go tomorrow..hahaha

Edited by luv2drift

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Nice research, so in other words the $40 fee does appear to be legal, and, the high water mark myth doesn't hold a lot of water(except during the spring flood :rolleyes: ). So unless you want to walk down the side of the river(feet in water), looks like this is legal. I would much rather see something like a Township access permit for those who live in Essa Twp, other municipalities do likewise for access to boat launches and parks like Innisfil, and Oro 9th line if I'm not mistaken. Maybe Brian knows if they charge at the Barrie Marina for Barrie City residents to launch&retrieve. I'm sure if they took 2 cents from every ESSA property owners tax bill, they would more than equal the amount they spend on the administration of tickets, making, distributing, revenue, etc. And lets keep it civil and not nasty, there's something to be learned here.

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aniceguy...kudos

can you clearify a few points for me.

 

1. The area in question should be "navigatible" because there is a well established tourist canoe route.

luv2drift, there's about 7 or 8 log jams just north of # 90 to the swamp, and once into the swamp there's a few more around the Willow, so big it would take many kilo's of C-4, DM12, or what it takes to blow it up. My neighbours been in there a number of times, it's impossible to navigate any distance now.

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Well I guess you should go and take everyone's 40 bucks and clear them OUT!!! because it is a designated tourist canoe route and I have the book to prove it!

 

Let's go chop chop

 

or use the C4 what ever

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I know one of the other fellow up the street made mention of this to the NVCA/Fishing Derby and they were totally unaware that the river had been "plugged up" by mother nature, from his story, he lead me to believe "it's not their job" to make sure the river can be used for canoe or other boat travel. Man, it would take an army(air force or navy don't count) to chop chop their way through that mess and then pull it up on the banks. There's a couple spots, it's so high you can't even come close to seeing over top of the pile of trees, and probably a couple hundred feet long. I know you're right about the canoe route designation.

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if I go with 6 people and I am the only one that has a fishing rod....are they only going to charge me the 40 bucks....I think I can easily beat that......

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