Proposed System to Open More Opportunities to Resident Salmon Anglers

 

BY:                  John Bagnall

DATE:             November - 2008

 

Introduction     The Province of New Brunswick has a system that allows private ownership of the bottom (bed) of many streams.  In certain situations, the owners of the riparian land adjacent to a stream also own the stream bottom to the centre of the channel.  This allows the owner of the adjacent land to build structures such as dams on the streambed without trespassing.  It also gives the owner the exclusive rights to the fishery in the stream overlying the bed.

 

These rights are not as cut-and-dry as is often assumed.  In his review of riparian rights in New Brunswick, future Supreme Court Justice, Gerald V. LaForest (1960), asserts that:

 

“In addition to the ordinary rights of other land owners, the grant of the bed of a stream ordinarily carries with it the exclusive right to fish in the waters flowing over it, unless the stream at the point in question is tidal, or quite possibly navigable.”

 

Judge LaForest refers to “a group” of rules that determines whether the adjacent riparian owner owns the bed of the stream.  In order, they are:

 

  1. If it is tidal at the point in question, the adjacent land grant extends to the medium high tide line.
  2. Unless expressly granted, the shore and bed are the property of the Crown (presumably the federal government) in the case of harbours, or the Province in other cases.
  3. If the stream is navigable, but not tidal, the same rules apply as though the stream were tidal.
  4. In the case of non-navigable waters, the owner of the riparian land owns the bed of the stream to the mid-point of the channel unless the grant expressly says otherwise.

 

However, Judge LaForest also refers to a consideration that overrides this group of rules.  He says:

 

“It must be emphasized that these are rules of construction that may be overridden by express terms or by clear implications (presumably expressed in the land grant terms).”

 

Because there are landowners that assert ownership of the streambed on the major rivers in the Miramichi drainage (the Cains, the Main Southwest Miramichi, the Renous, the Little Southwest Miramichi and the Northwest Miramichi), it is assumed that his overriding factor must apply in these situations.  However, since Judge LaForest’s group of rules would logically apply to situations where there is no objective evidence of streambed ownership, it should be up to the owner to prove these rights.  The rivers in question are obviously navigable.  For example, signs produced by the owner of the adjacent riparian land informing the public of private water rights and excluding them from fishing would be subjugated to LaForest’s default group of rules.  The public could legally assert their right to fish on the water in question.

 

In your response to our letter requesting the consideration of a system to standardize the posting of waters where private fishing rights exist, you responded with the following:

 

 

We assert that in the absence of such a system, members of the public are free to fish anywhere in the Miramichi system as long as they a valid licence and follow the rules of the Fish & Wildlife Act (i.e. Judge LaForest’s group of rules apply).  So, despite the difficulty in developing, monitoring or enforcing such a system, it is needed.

 

Our Proposal:             The system that we propose is simple – one similar to the successful program by which private land in NB is posted to allow / disallow hunting.  Our proposed fishing rights system would have the following components:

 

  1. The owners of private fishing rights would be responsible for surveying their boundaries by employing legal or paralegal professionals and land surveying professionals.
  2. Once the ownership of the riverbed and the fishing rights are confirmed, the GPS positions of intersection of the property boundaries with the high water level of the river would be obtained.
  3. The position of these points would be recorded in a database on a website that is accessible to the public.  On the website, the public would be informed that the fishing rights between the points are under private ownership, and that they are forbidden to fish there under the threat of prosecution for trespassing.
  4. The private water owner would be issued standard signs that would inform people navigating through the water of the fishing rights status of the water.  This would give the landowner the right to evict fishermen from the water (i.e. his land).  The RCMP would enforce the system like they would for any private property dispute.
  5. If a riparian owner with riverbed, and therefore fishing rights ownership does not want to exercise these rights, this person would do nothing, and the public could therefore assume that the water is open for public fishing.  A riparian owner could exert his private water rights at any time by registering his property (Steps 1 to 3 above).
  6. The database and website would be maintained by the Crown Lands Branch of the NB Department of Natural Resources.

 

In anticipation of concerns about the cost of maintaining such a system, we expect that they would be minimal and that existing staff could maintain the small database and website.  Since the private water owners would be the principal beneficiaries of such a system, we propose that they be charged a one-time fee for registering their waters in the system, and perhaps a small annual fee to maintain the system.

 

The system could also fund and produce an annual publication providing and perhaps illustrating the location of private waters, and by exclusion the locations of waters open to the public.

 

Reference:      LaForest, G.V.  1960.  Riparian rights in New Brunswick.  Canadian Bar Journal.  Vol. 13: