Access to Green Lake Through 19 Mile Creek: Your legal rights

The property owner of the lands surrounding 19 Mile Creek in Whistler does not own the delta formed on Green Lake.  While the property owner may fence off the lands, and restrict access through the land, there is nothing stopping someone from walking and/or navigating a vessel down 19 Mile Creek.  Furthermore, a recent SCBC decision reaffirmed citizens’ access to lakes noting that “The ownership of lake beds is … intended to be collectively held for the benefit of all citizens of the province. As that is the case, consider doing what other jurisdictions have done and guarantee access to this precious public resource.”

Background Legislation:

Stream and lake beds are crown property. This was affirmed by the 1894 North-West Irrigation Act and by a 1932 Supreme Court of Canada decision in Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd.

The starting point is to recognize that the common law does not regard water in situ as being capable of private ownership. As Halsbury’s Laws of England puts it:

Although certain rights as regards flowing water are incident to the ownership of riparian property, the water itself, whether flowing in a known and defined channel or percolating through the soil, is not, at common law, the subject of property or capable of being granted to anybody. Flowing water is only of public right in the sense that it is public or common to all who have a right of access to it.

Ad medium filum aquae is a general interpretive rule of British common law that in construing a conveyance where land adjoining an inland river is granted, the prima facie presumption is that the parties intend to include in the grant, the bed of the river to the mid stream.

In Canada, the rule of interpretation at this common law was expressly abrogated by the North-west Irrigation Act of 1894 in respect to future grants. The North-west Irrigation Act preserved rights and agreements obtained and made previous to its enactment and these would be determined by reference to the applicable law at the date of the grant or agreement

The Northwest Irrigation Act unequivocally revoked or rescinded common law riparian rights, declaring that the water in all streams, lakes, ponds, springs, or other sources belongs to the Crown. It then defined the conditions under which federal officials could grant water rights or concessions to companies or individuals for a variety of uses.

In a 1932 Supreme Court of Canada ruling on Arrow River & Tributaries Slide & Boom Co. Ltd. v. Pigeon Timber Co. Ltd., it was declared in its rulings that a company could not charge a toll on a river as waterways are owned by the crown.   In effect, private companies do now own water in Canada.  This and other cases have affirmed that Canadians have the rights to access through the waterways and continues to be upheld today as a right of all Canadians.

British Columbia Background:

Crown ownership of water in situis expressly recognized by statute in British Columbia.  The North-West Irrigation Act was first adopted in 1894, but the specific reference to Crown ownership was added retroactively the following year as the original Act mentioned only the vesting of a right of use in the Crown. The North-West Irrigation Act continued in force until ownership and control of public land and natural resources were transferred from the federal government to provinces such as British Columbia.  Although British Columbia as a colony had adopted legislation providing for Crown control of the use of water as early as 1892. it did not provide for Crown ownership of surface water until 1925 and did not recognize it as extending to underground water until 1995. “ The property in and the right to the use, percolation and any flow of ground water, wherever ground water is found in British Columbia, are for all purposes vested in the Crown in right of British Columbiaand are conclusively deemed to have always been vested in the Crown in right of British Columbia”

In British Columbia, Ad medium filum aquae – which is more a “property” right than a riparian right – has been largely abrogated in British Columbia as a result of an amendment to s. 52(1) of the Land Act. This amendment precludes private rights of ownership or control over the beds of streams, lakes, rivers, and other water bodies in the province.  See the BC Land Act at http://www.bclaws.ca/civix/document/id/complete/statreg/96245_01

A recent B.C. Supreme Court decision against Douglas Lake Cattle Company in December 2018, Justice Joel Groves ruled that Douglas Lake did not gain control of Minnie and Stoney lakes — traditional fishing places for Indigenous people and local anglers — by purchasing the grazing rights to the land around it, nor was it allowed to close a public road, maintained by the province, to cut off access.

Ownership of 19 Mile Creek:

In British Columbia, as an owner of waterfront property, the property line generally extends to the natural boundary of a lake, river, stream, or coastal water. This natural boundary is usually represented by the normal high water mark (in freshwater areas) or by the high tide mark (in coastal locations). The land below the natural boundary is defined as the foreshore and in most cases belongs to the Provincial government (the “Crown”). This includes the bed of a river, lake, or coastal area. Beaches, which are dynamic, with sand and pebbles pushed and pulled by tides and waves, generally also lie below the high water mark.

Conclusion:

The Property Owner of the lands surrounding 19 Mile Creek has no right to refuse access to Green Lake through the water of 19 Mile Creek so long as the person accessing Green Lake stays in the natural boundary of the high water mark.  The high water mark in the case of 19 Mile Creek may be at times dry, especially in the summer, so careful attention must be made by all parties.  

Only the Crown may refuse access, but it must provide reasons.  The Police can only enforce laws and regulations that exist.  I can find nothing about 19 Mile Creek in Whistler that would preclude lawful entrance by an individual under the reasons outlined above.

Download Legal Briefs here