Ontario MNR policy on Navigable Beds

Policy No. PL 2.02.02
OWNERSHIP DETERMINATION - BEDS OF
NAVIGABLE WATERS
Date Issued
February 26, 2007

Based on the Canoe Ontario ruling, the Ministry of Natural Resources, in addition to considering the above noted seven conclusions, will be guided by the following key points when making navigability decisions for administrative purposes:

1. For purposes of determining navigability, the Ministry position will only be finalized after considering the issue of navigability from the perspective of both the date of inspection and the date of letters patent. The necessity to consider navigability from both perspectives arises because the courts have historically considered navigability at the date of the grant, but it is possible, but not certain that future decisions will reflect only the current situation

2. Navigability depends on "public utility".

3. Public utility means actual or potential commercial or recreational use, or other
"socially beneficial activity".

4. Generally, the waterway should run from one point of public access to another point of public access.

5. Seasonal limitations do not detract from navigability as long as there is some use (or potential use) which is regular and which has practical value.

5.0 References
5.1 Legal
• Beds of Navigable Waters Act, RSO 1990
• Canoe Ontario vs. Julian Reed (1989) 69 OR 2d 494
• Coleman vs. A.G. For Ontario (1983) 143 DLR (3rd) 608
5.2 Directive Cross References
• PL 2.09.02 Navigation – A Public Right (Bulletin)


Findings of the Canoe Ontario vrs. Julian Reed Case: also applicable to MNR decisions

Justice Doherty accepted the following seven conclusions reached previously in the Coleman Case:

(i) navigability in law requires that the waterway be navigable in fact. It must be capable in its natural state of being traversed by large or small craft of some sort;

(ii) navigable also means floatable in the sense that the river or stream is used or is capable of use for floating logs or log rafts or booms;

(iii) a river may be navigable over part of its course and not navigable over other parts;

(iv) to be navigable, a river need not in fact be used for navigation so long as it is realistically capable of being so used;

(v) a river is not necessarily navigable if it is used only for private purposes or if it is used for purposes which do not require transportation along the river (i.e., fishing);

(vi) navigation need not be continuous, but may fluctuate with the seasons; and

(vii) where a proprietary interest asserted depends on a Crown grant, navigability is
initially to be determined as at the date of the Crown grants