So who does own the water..

[LeXXington]

Hi All:

 

When the last post came up about this, I became courious as many people have different views and arguments for and against. I therefore contacted the DFO and the Coast Guard for some guidance.

 

Please do not treat this as Set in Stone as each situation could be different, Check with your local Harbour Master or coast Guard as there are special "Proclomations"

 

Below is our e-mail conversation. There is still some area's that have special situations but it might give you some good information. I have removed the e-mails so they do not get flooded with "what if's" but please feel free to access this resourse that your pay for.

 

 

Good morning Sir: please note, in blue, the Department of Fisheries and Oceans' response to your query.

 

B. Sue

Pêches et Océans Canada, 200 rue Kent, Ottawa, Ontario, Canada, K1A 0E6

Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario, Canada, K1A 0E6

Gouvernement du Canada/Government of Canada

 

 

--------------------------------------------------------------------------------

From:

Sent: February 15, 2007 1:25 PM

 

Subject: Re: FW: Who Owns the Water?

 

 

Thank you for your prompt reply.

After reading the Navigable Waters Protection Act (Transport Canada) I would like your input on an agreeable understanding.

To understand our issue, property owners are adding docks then natural and man-made harbours are springing up around them. Area's that use to be excellent fishing area's have had the land surrounding them sold by municipalities for development then the owners of these area's are trying to "Ban" people in boats from fishing in these area's saying they bought the rights from the Municipality. This is access from a boat only never touching the shore, land or property as I understand that this can be sold.

 

1. All water that is navigationally is open to the Canadian public, this includes harbours that have not had special powers granted too them by the federal government such as port authority established under the Canada Marine Act Right.

 

2. Where as the water is said to be off limits or by special proclamation by the government. Notices are too posted with the government of Canada or Fisheries. An Example "No fishing" fishing sanctuary by the Ontario government. Right although there could be some nuances to be made.

 

3. Local citizens can post "No fishing" signs but unless its endorsed by the Ontario or Federal government or a Authority established under the Canadian Marine act this can be considered a request not a law. Not exactly. It really depends on the specific situation. There are situations where there is no need for the government to endorse it. Thanks in advice you can provide.

Paul

 

 

 

" Brenda" < wrote:

Good morning Sir:

 

No one owns water. It is for the benefit of everyone. But someone could own the bed or the shore - and of course a wharf.

 

There is a public right to navigate on navigable waterways. As per the Constitution Act, only the Parliament could interfere with this right. This means no one could do anything to stop you from navigating even if they own the bed of the waterway. This being said, the right to navigate does not give someone the right to use someone else property. One needs to distinguish between "access" and "navigation". Although there is a public right to navigate, if a waterway such as a lake is surrounded by private properties, there is no right to access the lake. Also, if the shore, a wharf or any other facility is privately own, it is perfectly legal to control use of those facilities. Owners of those facilities are not supposed to interfere substantially with navigation though. Navigable Waters Protection Act (Transport Canada) might be applicable in some cases.

 

Legislation of fisheries is also with the federal but there is a link with private property. So depending on the circumstances of the case, it might be legal for an individual to indicate "no fishing". Again there is a distinction to be made between legislative jurisdiction and property rights. You may wish to refer to "La FOREST, G.V., Water law in Canada – The Atlantic Provinces, Ottawa, Information Canada, 1973 for more information.

 

I trust this helps.

 

B. Sue

Pêches et Océans Canada, 200 rue Kent, Ottawa, Ontario, Canada, K1A 0E6

Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario, Canada, K1A 0E6

Gouvernement du Canada/Government of Canada

 

--------------------------------------------------------------------------------

From:

Sent: February 12, 2007 11:12 AM

To: XNCR, Min

Subject: Who Owns the Water?

 

 

Dear Sir/Madam.

A Ontario fishing internet board that I read is currently having a lively discussion on a very important topic and we would like some guidance.

http://www.ofncommunity.com/forums/index.php?showtopic=3302

We understand that if the water is navigational its "everyone's". The issue we have is with "private" Marina's. In this there are 2 types of Marinas

The ones that are in natural harbours that a business puts a dock up and say its private "NO FISHING" via bringing your boat in (not touching shore).

Then there are the type that are built, a channel is dug to the main lake and a harbour is dug out of the land to create a marina.

There is concern of citizens taking a resource for all and calling it private with many on the municipal level confused as what is and is not true.

Thanks in advance

[bigfish1965]

So clearly, in the absence of a Port Authority, there is no special rights granted to land owners over the water. Also, as has been mentioned, only the Province can dictate no fishing areas in public waterways where access is also public.

[majorlifts]

I suggest, copy, paste, print, and carry a copy of this letter, so the next time some person is belly aching, politely whip it out and feed it to him.

[GbayGiant]

Dude, that's a good idea. even though you don't need it, it would make the bickering stop, and the guy would know you understand you rights.

[Terry]

I would say take it

because I had a cop side with the marina owner and they made me leave

so the email would make them think twice about giving you the boot

[snag]

Hey Lexxington,

 

Thanks for that.

 

I tried to find out about the Humber Marina but had no returns to my messages.

 

The Port Credit Marina is definately one of the exceptions and they now have new signs posted along with the By-law infraction #.

 

Marinas are iffy, but any cottage owner who gives you grief certainly has some explaining to do.

[camillj]

Guys, ya may want to read that response again ... it says you have a right to NAVIGATE navigable waters (the definition of which is not totally clear) .. not fish (so unless your argment is that you are ON YOUR WAY to a fishing destination that happens to be through their Marina you may find yourself in an awkward situation... and it also says there are cases where property owners DO have the right to prevent access... and that there are cases where Marinas have been granted special rights ... dont want to get embarrassed with your own piece of paper... and you certainly are better off not making a nuisance of yourself especially if you are in fact in the wrong ....

[huntervasili]

You have use of the water though... That includes fishing, access is a different story. If you access the lake by lawful means (public launck) you are ok but when you begin to have no legal means of accessing a waterbody without trespassing this is when you get in trouble, and will look like a fool with a piece of paper saying you can be on the water but basically have to parachute into it and somehow be picked up...

[bigfish1965]

Guys, ya may want to read that response again ... it says you have a right to NAVIGATE navigable waters (the definition of which is not totally clear) .. not fish (so unless your argment is that you are ON YOUR WAY to a fishing destination that happens to be through their Marina you may find yourself in an awkward situation... and it also says there are cases where property owners DO have the right to prevent access... and that there are cases where Marinas have been granted special rights ... dont want to get embarrassed with your own piece of paper... and you certainly are better off not making a nuisance of yourself especially if you are in fact in the wrong ....

 

Being in a boat fishing is not differnet than fishing. Navigation includes all legal uses.

There are so VERY few exceptions to the Act. You will generally find a Port Authrotiy in these instances.