Canada Analysis
Status: In-depth
An in-depth assessment of options for private conservation of aquatic lands in British Columbia, Canada, was completed by the Nature Conservancy of Canada. While the complete assessment is not available to the public at this time, a summary of findings is provided below. The initial findings indicate the leasing of the foreshore is possible, while the outright purchase of aquatic lands is not.
Overview
In British Columbia, the foreshore, the area between the low water mark of low tide and the high water mark of high tide, is generally considered to belong to the province.1 Furthermore, the province has ownership of “inland waters”, defined as waters lying “between the jaws of the land”.2 Generally this indicates that the province owns the seabed of any bays, estuaries, harbours and similar marine areas that fall between two distinct headlands.3 In addition to the above-mentioned waters, British Columbia owns the entire seabed between Vancouver Island and the mainland of British Columbia.
Within British Columbia, it appears aquatic lands cannot be privately owned. Short of outright ownership, the Land Act allows for four types of tenures that private entities can acquire over aquatic Crown land: 1) a lease, 2) a licence of occupation, 3) a right of way, or 4) a temporary permit.4 The rights associated with each are tempered in the marine context by the public right to navigation and, for foreshore areas, the private riparian rights of the owners of adjacent coastal property.5
Leases
Section 38 of the Land Act gives the Minister the ability to lease Crown land.6 Leases grant the tenure holder the right to exclusive use and enjoyment of the land as well as the right to exclude others from the land. Holders of a lease to aquatic Crown lands have an enforceable right to exclude others similar to a terrestrial lease.
Licences of Occupation
Section 39 of the Land Act allows the Minister to grant licenses of occupation.7 A licence of occupation is a tenure that gives the holder the right to use the land for a specific and defined purpose, and therefore conveys fewer rights than a lease. Most importantly, licenses of occupation do not convey the right to exclusive use and enjoyment of the land.8
Statutory Rights of Way
Section 40 of the Land Act gives the Minister the ability to grant statutory rights of way, which are generally granted for linear uses of Crown land for purposes such as communication and transportation.9 A statutory right of way does not grant the holder exclusive use and enjoyment of the land although the tenure holder can take legal action against individuals who interfere with the holder’s right to use the land in accordance with the right of way.10
Temporary Permits
Section 14 of the Land Act allows the Minister to grant temporary permits to allow applicants to occupy land to carry out an investigation of the land or its natural resources, to construct roads or other transportation related improvements, or to undertake other temporary uses of the land.11 Temporary permits do not grant exclusive use of the land and permit holders are not permitted to restrict access of the public to the land.12
1 Halifax Longshoremen’s Assn., Local 269 v. Offshore Logistics Inc., [2000] F.C.J. No. 1155, [2000] A.C.F. no 1155 at para. 52, [Halifax].
2 Halifax at para. 52. See note 1.
3 Halifax at para. 52. See note 1.
4 Land Act, R.S.B.C. 1996, ss. 11(2) and 14.
5 Crown Land Administration Division, Occasional Paper No. 5: Riparian Rights and Public Foreshore Use in the Administration of Aquatic Crown Land [2008] at 5 [Administration of Aquatic Crown Land].
6 Land Act, s. 38.
7 Land Act, s. 39.
8 Crown Land Administration Division, Land Policy: Form of Crown Land Allocation, [Crown Land Allocation] at 2.
9 Land Act, s. 40.
10 Crown Land Allocation at 3. See note 8.
11 Land Act, s. 14.
12 Crown Land Allocation at 1-2. See note 8.