The question of fact whether the Wye River, which meanders through property of the applicants in Simpson v Ontario (Natural Resources), 2011 ONSC 1168, was navigable, and the question of fact whether there had been an express grant of the river bed, were heard and determined de novo by the Superior Court of Justice on an appeal under the Land Titles Act of the decision of the Deputy Director of Titles, which upheld Ontario Ministry of Natural Resources’ objection to the applicants’ application to be registered as owners of lands including the river bed.

The factual issues arose on consideration of section 1 of the Ontario Beds of Navigable Waters Act which provides “where land borders on a navigable body of water or stream, or on which the whole or a part of a navigable body or water or stream is situate, or through which a navigable body or water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee”.

The parties agreed that the onus is on Ontario to prove that the waterway was navigable as at the date of the patent, which was, for this land, 1836.

In his reasons the Honourable Justice Eberhard reviewed the jurisprudence about the meaning of “navigable” in determining “proprietary rights in the bed or solum”, including Coleman v Ontario [1983] O.J. No 275 and Canoe Ontario v Reed 69 O.R. (2d) 494, [1989] O.J. No. 1293 and quoted extensively from Coleman for the history and context of the navigability question, including these principles:

The common law in England distinguishes between tidal waters, which are navigable and accessible to the public for passage over the surface, the ownership of the beds being vested in the Crown; and inland waters (i.e. non-tidal) in which case a grant by the Crown to a riparian owner automatically coveys to him the bed of the inland water adjacent to the lands conveyed while the public right of navigation is preserved.

Previous case law holding that the Great Lakes and the Winnipeg River to be inland waters as to which a riparian owner was prima facie presumed to have title to the solum has now been modified by the Beds of Navigable Waters Act.

The principles emerging from the cases are:

1. A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort, as small as canoes, skiffs and rafts drawing less than a foot of water;
2. “Navigable” also means “floatable” in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms;
3. A river or stream may be navigable over part or its course and not navigable over other parts;
4. To be navigable in law a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used;
5. It need not be navigable for commercial purposes;
6. The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public;
7. Navigation need not be continuous but may fluctuate seasonally;
8. Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non navigable;
9. A stream not navigable in its natural state may become so as a result of artificial improvements
10. While commercial utility is not a sine qua non to navigability, evidence of commercial use will be determinative of the question.

If use is regular and has practical values, then seasonable limitations, or limits on the type or nature of the public utility do not remove the waterway from the public domain.

In reviewing Canoe Ontario, Doherty J. found that the public right of passage does not carry with it a public right or portage and if natural obstruction temporarily or permanently prevents passage, the right of public passage remains although it may not be exercisable.

The court found that the Wye River was capable of supporting such activity as canoe use and log floating (without actually finding that such use actually occurred) and thus the passage running through the subject land was navigable, and since it found no express grant, the applicant could not claim ownership of the river bed.  The appeal and application were dismissed.

David Alderson, LL.B, LL.M  

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