If you own waterfront property to the shoreline, you are a riparian owner, meaning you own the bank (“ripa”) of the lake to the water’s edge. But where is the water’s edge in Haliburton? There is a high water mark in the spring and a low water mark in the fall. The lakes are drawn down over the summer to feed the Trent-Severn Canal system to the dismay of many waterfront owners, and the growing protest of a few. On some lakes, the draw down is greater than six feet.
Surprisingly, the law in Ontario was clearly defined in 1852 and definitively settled 25 years ago in the 1971 case of Ontario (Attorney General) v. Walker, affirmed by the Supreme Court of Canada. The case started with a very lengthy trial over the ownership of beaches on the north shore of Lake Erie in the Township of Bertie, commonly known as the Thunder Beach area. The trial judge held that a riparian owner owns to the low water’s edge, adopting an 1852 decision of an appellate division of Upper Canada, as it then was. Here is what the trial judge said:
“In the case of Parker v. Elliott (1852), 1 U.C.C.P. 470, the majority of the Court held that in the case of inland waters, a grant having a river or lake boundary extends to the water and that the law of foreshore as it is applied in England with respect to tidal waters is not properly of application in the inland waters of the Province of Ontario, and that the distinction of high and low water marks will not hold, save where the tide exists . . . any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water, then establishes that boundary as at the water’s edge [lower water mark] and not upon any bank or high water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water’s edge.”
And who owns the land under the water? The Province by virtue of the Beds of Navigable Waters Act.