Riparian rights are a category of property rights that provide landowners of property that abuts a watercourse with protections against unreasonable changes to that watercourse. In Ontario, riparian rights are preserved by common law - there is no legislation that explicitly established riparian rights on Ontario.
There are 4 broad areas of riparian rights in Ontario:
1) 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.
2) 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.
3) 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.
4) 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.
Graystone Environmental provides expert advice on and tireless defence of riparian rights across Ontario. Roxie works for practical solutions to water issues for a range of clients from municipalities to individuals to community groups.