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Who’s In Charge of These Waters?

by David Sheffield 2013

TEXT

Waterfront Houses and Floats on the Waterfront at Cowichan Bay BC (Photo from John MacFarlane collection)

When we head out on the waters off the British Columbia coast, our primary concerns are with winds, tides, and successfully navigating to our destination. Generally far less thought is given to the ownership or administration of these waters. That is, until we need to install a dock, a favourite passage is blocked by moored barge or log boom, or we see someone dumping a load of debris overboard. At that time the question arises: Who’s in charge of these coastal shores and waters, anyway? The BC coast is some 27,000 kilometers in length and encompasses a wide variety of topography, from exposed open ocean to deep sheltered inlets. Shorelines may feature broad, low–gradient sand beaches that you can land a plane on, or solid rock ledges only a few meters in width that drop off steeply to great depths.

Coastal waters are often referred to as submerged lands, and their ownership generally rests with either the provincial or federal government. The province owns the foreshore, which is defined as the area between the low–tide and high–tide marks. This contrasts with some other countries, where sections of the beach can be privately owned, and often shocking to our sensibilities– the beach may be fenced off right to the low-tide mark, like a farmer’s field.

For historical reasons, the province also owns the beds of "inland seas" such as the Strait of Georgia. This was confirmed in a Supreme Court of Canada decision in 1984 (the Strait of Georgia Reference), which held that when British Columbia entered Confederation in 1871, the province consisted of all British territories, including dry land, coastal straits, and submerged lands. Thus BC gets to retain the waters and submerged lands of the Strait of Juan de Fuca, the Strait of Georgia, Johnstone Strait, Queen Charlotte Strait, and the waters and submerged lands between major headlands (sometimes referred to as the "the jaws of the land"). This ownership extends to natural resources and even the "flora and fauna" attached to the subsurface. As such, provincial laws apply to activities such as the use of beaches, sailing in a passage, mooring in a bay, or building a dock.

The federal government owns the seabed under open ocean up to twelve nautical miles from the outside shore, and controls the ocean to 200 nautical miles from the shore. There are a few exceptions to these the general rules of ownership of the seabed, with the odd Crown-granted (privately-owned) water lot and portions of major harbours that are under federal rather than provincial ownership. The Constitution Act of 1867 gave the federal government the general responsibility for oceans.

The Oceans Act is the primary piece of legislation governing the oceans, along with a range of other legislation aimed at protecting marine habitat. Most boaters are somewhat familiar with the Fisheries Act and the protection it affords the marine environment. The federal Department of Fisheries and Oceans has the responsibility for managing and protecting fish and habitat. This responsibility extends to all "wetted habitat", including any private, Crown–granted water lots and eroded portions of waterfront lands that may now be under water. Other important federal legislation impacting the use of coastal waters includes the Canada Marine Act, Canada Shipping Act, and the Canada National Marine Conservation Areas Act.

Yacht at anchor

(Photo from John MacFarlane collection)

Ownership of the seabed is just part of the equation, though, with local and regional governments having power to regulate land use within their boundaries, which may extend over the foreshore and nearshore areas. This is reflected in zoning, permitting, regulatory bylaws, and official community plans. Examples may include designating zones where marinas are permitted, where log storage may occur, or recommending community moorage facilities in preference to a plethora of individual private docks in congested harbour areas.

Other areas have important and often fragile marine ecosystems whose ecological health requires that all development be excluded. Transport Canada is charged with preserving the public right of navigation through the Navigable Water Protection Act recently amended and renamed the Navigation (Protection) Act. This changes the focus of the Act from protecting navigable waters to protecting navigation, and then only on Canada’s busiest rivers, lakes, and oceans. While the amendments will greatly reduce its applicability in fresh water – excluding some 99 percent of lakes and rivers from federal oversight – the impact on BC coastal waters will be minimal.

Tenures involving physical improvements such as docks and breakwaters are assessed under the Navigation Act to ensure that they do not impose an undue hazard to safe navigation. In most cases, minor improvements close to shore are simply exempted under the Act, but major developments that are deemed to have a significant impact on navigation must be screened and issued formal approval by Ottawa. As the requirements for an Act approval are a trigger for an environmental assessment, and with the new Navigation Act covering only a limited number of freshwater bodies, this has raised fears that far fewer projects will now be subject to extensive environmental reviews.

Although its application has evolved over the years, the primary purpose of the Act remains the protection of the public right of navigation and regulating structures that might interfere with navigation such as dams, bridges, and piers. The definition of Navigable Waters has broadened over time, from its origins in British common law with references to waters that can be traversed by masted coal ships, to the point where it now includes all British Columbia coastal waters that can be navigated at high water, even in so much as a tiny rubber raft. The Act also prohibits dumping garbage in water in a manner that interferes with navigation, or depositing of material in water that is less than twenty fathoms deep. In reality, federal and provincial pollution control laws now supersede these restrictions to a large extent.

The federal government is primarily responsible for regulating pollution that originates at sea, such as an oil spill from a distressed ship. Much of the pollution that impacts BC waterways, however, originates from the land in the form of industrial effluents and sewage discharges. The provincial Environmental Management Act regulates the introduction of any pollutant into the environment, including the marine environment.

The province, through its ownership of the seabed, has the mandate under the Land Act to allocate and administer the use of these lands. The Land Tenure Branch of the Ministry of Forests, Lands and Natural Resource Operations allocates land for marinas, private docks, log storage, and industrial uses such as underwater effluent pipes. Tenures usually in the form of licences, leases, and rights of way are granted after referral input from applicable agencies such as the Department of Fisheries and Oceans, First Nations, and local government.

Seabed

The province, through its ownership of the seabed, has the mandate under the Land Act to allocate and administer the use of these lands. (Photo from John MacFarlane collection)

Both the water lot and the improvement therein are subject to assessment and annual property tax charges. Where log storage or another use is proposed in front of privately owned upland property, the province will usually not grant tenure without the applicant providing the consent of the upland owner. This stems from the riparian rights that go with ownership of waterfront land. The word riparian comes from the Latin riparius, from ripa, meaning bank or shore. Owners of coastal waterfront lands enjoy three important riparian rights: the right to protect their land from erosion or flooding by building work on their lands, such as dykes; the ownership of naturally accreted material; and access to and from the water. It is important to note that the building of seawalls for property protection below the natural (high-water) boundary of a property is not a right, and requires approval from certain agencies and a provincial tenure.

The right of unimpeded access to deep water for purposes of navigation from any point along the foreshore of their land at low water is the right that gives landowners some control over how the foreshore and near–shore are used. Should any structure constructed on the waterfront or moored just offshore interfere with that access right, it must be done with the landowner’s approval.

The question of what constitutes interference is a subject of some debate, and with a lack of recent legal precedents on the issue, the province tends to take a conservative stance and, in most instances, asks for upland owner consent. There have been situations where log storage grounds have been moved sufficiently offshore to leave the upland owner with enough clear water, so that access is not deemed to have been interfered with. The riparian right of access does not preclude the province from allocating beach area in front of a private lot to a non–obstructive use, such as oyster culture, even without consent of the upland owner; but as shellfish culture has grown more intensive, this has become of matter of some contention.

British Columbia is currently the only jurisdiction in Canada where the federal government has taken on the lead role for the licencing and management of aquaculture. The federal Pacific Aquaculture Regulations introduced in 2010 have the Department of Fisheries and Oceans Canada (DFO) responsible for regulating, monitoring, and licensing all aquaculture operations in the province, except those sites culturing marine plants.

The province, as the owner of the near shore seabed, is still responsible for providing tenures for the occupation of provincial Crown land associated with aquaculture operations, such as fish farms and shellfish culture. Aquaculture has expanded rapidly in BC waters since the 1980s: first with fish farms, and more recently with shellfish operations. This has not been without some controversy and conflict.

The wave of investment in fish farming, once termed the "Blue Bonanza", saw many quiet bays and inlets as far south as the Sunshine Coast choked with salmon net pens in the early 1980s and 1990s. Faced with unforeseen technical and environmental problems such as predation, disease, and fatal algal blooms, as well as the financial shake–out and consolidations that accompany most new industries – many sites were abandoned or their facilities relocated to more suitable locations.

A major push began in 1998 to double the amount of crown land foreshore and offshore allocated to shellfish farming; within a decade, this has also raised concerns amongst users of beaches and coastal waters. The traditional small beach culture "oyster farms" have now in some cases become large mechanized, industrial–scale operations with rafts and long lines supplementing beach culture. Through its planning efforts, the province hopes to accommodate the interests of a wide variety of competing interests while preserving environmental values. In the midst of aggressive plans to stimulate rural employment, it remains to be seen how successfully the government can juggle competing interests. Many people are very passionate about the coast and leery of development proposals that alter it.

There are numerous competing potential land uses along the British Columbia coast, especially in the heavily populated Georgia Strait Basin. The Coast and Marine Planning Branch has the mandate to plan and coordinate coastal use and development, taking into account economic development and diversification, environmental threats, land and resource conflicts, and First Nations issues. In recent years, fish farms, log storage, resorts, and shellfish tenures have been hot issues, and the Branch aims to reduce conflicts and protect key environmental values by taking inventory of coastal resources, as well as identifying both threats to specific areas and opportunities for land tenures within coastal management plans. Certainly, as the population using coastal lands and water continues to grow along with the importance of the resources in and under the sea, ownership and control of these lands and resources will command greater attention.

David Sheffield: The author has had a long career as a property negotiator and manager in the British Columbia forest industry and in the identification and protection of park and conservation lands.


To quote from this article please cite:

Sheffield, David (2013) Who’s in charge of these waters? Nauticapedia.ca 2013. http://nauticapedia.ca/Articles/Waterfront_Property.php

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