STAKED CLAIM - Keeping track of riparian rights

published 2009 Canadian Water Treatment Magazine

Proponents, designers and operators of water-related projects are often entangled and delayed by the constant consideration of the rights and concerns of stakeholders. However, recent changes seen at the federal level (Navigable Waters Protection Act) and provincial level (Green Energy and Economy Act) signal a move to shelter projects from objections and delays of stakeholders. While these changes may eliminate or minimize statutory obligations to seek and address public comment, it cannot be forgotten that citizens have rights and recourses that should be acknowledged and respected. Some of these rights fall into a category of common law property rights. These communal law rights are not part of any statute or regulation. However, they are recognized and enforced by the courts. A particularly important set of property rights for water-related projects are riparian rights. Projects on or near bodies of water should guard against impacts to riparian land owners throughout the design, construction, and operational phases. Knowledge of riparian rights can help guide and shield projects. Without proper consideration they can be used more as a sword, particularly in Ontario and in Atlantic Canada where the common-law statutes of these rights has meant escape from recent project fast-tracking legislation. Owners of land that borders water have basic rights to make reasonable use of that water. In Ontario and some Atlantic provinces, these rights remain as common law principles. Although most other provinces have legislated water rights, the common law approach in Ontario continues to provide riparian owners with some of the broadest interest and protection. A brief review of the riparian rights in Ontario— which include many specific rights not addressed in legislated rights from other jurisdictions—will help provide a comprehensive understanding of what considerations should be made when designing and operating a project.

Importantly, any individual or corporation can be liable for an interference with riparian rights—not just those located on or who make use of the water. For example, a project some 10 kilometres from a lake may impact riparian rights by causing the deposition of contaminants in the water. Most rights, however, are limited to reasonable use, protecting the rights of upstream/upwind projects and other riparian owners.

Rights of access and use The most fundamental of these riparian rights is that of reasonable access and reasonable use. While temporary infringements to the right of access may be permissible, the right may serve to block any installations or actions that permanently infringe on access by a riparian owner. The right of access will extend across the entire length of the owner’s property fronting on the body of water. While providing alternative access may mitigate project impacts, it is likely not sufficient to avoid liability. Rights of use can extend to both ordinary and extraordinary uses. Drinking and other domestic uses closely related to the owner’s land are typically considered ordinary uses. Regardless of the downstream impacts, ordinary uses will not bring about any liability. Extraordinary uses, such as irrigation or manufacturing, will be allowed provided no impact to the riparian rights of others. 

Rights relating to flow and quantity Riparian owners have rights to customary flows of water entering and leaving their land. More specifically, these rights include having the water flow in its natural course, preventing permanent extraction of water such as bulk exports, preventing permanent or long lasting alteration to flow from unreasonable use, and ensuring water leaves the land unobstructed to protect against flooding from downstream blockages or dams. 

Rights to undiminished quality Water should enter and leave the riparian owner’s land in its natural state. While there may be upstream rights to use and even drainage, downstream owners are protected from contaminants and other pollution in the water. However, this protection is not extended to elements in the water that occur naturally. In line with limits placed on use discussed above, riparian land owners can employ this right to protect against downstream contamination. Rights of proper drainage Riparian owners have rights to proper drainage onto and from their land. These specific rights protect from flooding and erosion caused by unreasonable upstream drainage. Even where an upstream project does not increase the flow of drainage, any concentration of flow into a narrow point or changes to the location of the flow that causes downstream flooding or erosion may increase liability.

Rights to accretion Accretion is the increase of land by natural forces. Riparian rights extend to land created by either the gradual accumulation of material, or recession of waters to a lower level. Recent cases have determined that this land is typically property of the riparian owner, not the Crown. What’s important here is that this new land may create unintended consequences. Riverbed and lakebed sediment is often where most contaminants settle. If it becomes exposed and, in addition, becomes the private property of the riparian owner, there may be liabilities to the upstream polluter.

Going forward Riparian rights have been in existence for a long time but have never been utilized to their fullest extent in order to address impacts of upstream projects and are typically not major considerations to proponents. However, with new changes to stakeholder consultation and protection obligations at both the federal and provincial levels, citizens can still seek protection from courts through these common law rights. When a project has the potential to significantly impact a nearby body of water, it is important for operators, proponents, and designers to be aware of, and protect, the rights of riparian land owners. Failure to appropriately consider both statutory and common-law requirements for water protection in the development and design of projects may lead to difficult and costly confrontation, delay or even halting of a project.