This changes somewhat when we promote our waterways as tourism products and a destination. There are two considerations - each with a more complex story behind them - the basics come down to 1) providing access to water ways 2) addressing the inherent risk in paddling or fishing (ignoring motor boat recreation in the points below).
Access to water:
1. Providing parking and access points to water is the main requirement in promoting paddling tourism and water trails. Without marked/endorsed access
points people will find their own, creating ecological impact and antagonizing
neighbours or the surrounding community.
2. While floating on water has a legal right of
passage in Canada, access to land on either side of the water is not a right. There are many jurisdiction specific details, for example:
a.
Originally most waterways had a Municipal Shore
Road Allowance or shoreline right of way (66 feet from the water’s edge – which
edge? Often high water mark).
b.
Some munis/townships do not have any allowance
on the private lots abutting water.
c.
Some munis/townships are selling off the Shore
Road Allowance, which is on a lot by lot basis. This is enabled in Ontario, for example, by the Ontario
Lands Act sec 66(3). Most land owners likely do not know if their lot extends
to the water's edge or if it has a shore allowance (despite every land owner
believing they own to the water). The property deed is the only proof. One lot
may have purchased the allowance, and next door did not. The Land Registry
office using the Property Id number is the only conclusive answer to waterfront ownership.
d.
Ontario Power Generation has a waterfront
easement on most every river that has a power generating station, regardless of
private land ownership.
3.
If a jurisdiction is promoting a paddle route,
any rapids or dams will require investigation re: land ownership and to
ensure/arrange right of passage around it via land. Sign this portage trail to
direct use to this endorsed access way.
4.
Camp sites or designated stopping areas fall
under same legal status as portages for access to land. Using crown land is the
easiest option, or arrangements with land managers or private land owners to
allow landing access.
5.
Emergency landing on private land is
considerable a ‘reasonable right’ in tort law; other unauthorized uses would be
trespassing. Original land patents and deeds included explicit allowance for
‘marine distress’ access, however the province can remove that from deeds upon
application from land owner (Public Lands Act sec 66(1)). Similar access for
river bank fishing access exists, and can be removed by the province upon
request.
6. Ontario
Public Lands Act sec 65(4) states any portage
that existed before the land was sold from the Crown to a private owner, the
portage access remains, and “any person
travelling on waters connected by the portage has the right to pass over and
along the portage with the person’s effects without the permission of or
payment to the owner of the lands, and any person who obstructs, hinders,
delays or interferes with the exercise of such right of passage is guilty of an
offence.” This likely includes most every portage in Ontario, given paddle
routes preceded private land ownership in most parts of the province by many generations. Difficult
to prove except in the most historic of locations (link: https://www.ontario.ca/laws/statute/90p43#BK76)
7.
Water belongs to the government; any water
that is ‘navigable’/paddle-able allows for public right of passage, even if
land on both sides of navigable water if private. Fences across, dams etc. are
not allowed to impede passage without specific permit. This is a federal
statute under the Navigable Water Act and cannot be released by the province.
8.
In very rare circumstances the river bed may be
privately owned (river beds are almost always property of the Crown); this is often high up in
the watershed with small streams, ponds or impoundments, or other special cases
likely not floatable nor qualify as 'navigable' under the Navigable Water Act. In such a case of private river bottom but floatable
water, right of passage is guaranteed, however floaters cannot anchor or touch
river bottom without trespassing. For fishers, this means they cannot fish from the bank or wade in the river without trespassing.
9. Private land owners: Occupiers’ Liability Act applies, and sets a standard of ‘no reckless disregard’ for those navigating past or over land, as long as no money is charged; certain instances the duty may rise to ‘reasonably safe’.
Govt land managers: Certain statutes may create standards or obligations of govt agencies i.e. Conservation Authorities Act, Provincial Parks and Conservation Reserves Act regarding water access, parking amenities etc.
Dams and installation permits have requirements for signage and booming.
Paddling Inherent Risk
- Paddle routes already exist on most every water way; portage trails likely already exist where needed (however may be trespassing on private land).
- Endorsing a paddle route via map or signed access points implies an arm’s length duty of care relative to the route type. Users assume the risks of recreation; whitewater users assume different risks than lake users. Endorsers of a paddle route must ensure its navigability (i.e. can be traversed without trespassing on private land).
- Lake paddling routes/areas require no service beyond access point.
- River paddling routes may require more attention on an annualized or severe weather event basis re: deadfall, sweepers, portage trail clearing. There are thousands of kilometers of unmaintained river paddling routes across Canada with no negative effect. Creating a tourism product with concurrent marketing implies a level of service and assurance that the paddle route is navigable, open, and has public access.
- It is not typical or expected to mark hazards on river paddling routes i.e. warning sign of rapid ahead. Portage sign compensates for warning sign, however even this is optional. Users assume risks inherent in paddling.
- Charging money to access a paddling route i.e. camping permits, passes, raises duty of care to ‘reasonably safe’.
- Charging for parking does not elevate the duty of care under the OLA in Ontario. Ontario is the only province with this exemption for paid parking.
- Providing a map of route, marked access points (put in and take out options) and specific route hazards would be considered good practice to share with users, however there is no standard or requirement.
- Marketing a route as a destination creates a duty to ensure the route is ‘reasonably safe’ given its intent and user group (i.e. some whitewater kayakers seek extreme challenge, others seek placid ponds – marketing needs to ensure the right user finds the right access point).
- Marketing efforts concentrate use. Parking capacity, landing site environmental impact, neighbour relations all need to be monitored and maintained.
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