Common law protects public and private rights on foreshore

Editor: The contentious issue of public access to waterfront is again a hot topic in Kelowna.

Ian Sisett has written numerous letters conveying his earnest discourse on waterfront property rights in Kelowna. Sisett states that ““some private beach front title extends out into the water by original survey.”” This is a scarce occurrence, but it is correct.

He also states that “most beachfront title includes private property rights to water’s edge.”

This is not correct. He fears that “a member of our community is anxious to promote unlawful occupation of private lakeshore.” Sisett then begs the question “what is the law as to public access to foreshore within our city limits?””

I would like to offer my views as a former BC Crown Land Officer, with experience in managing Crown foreshore in Kelowna.

All waterfront lots in BC, property that extends to the natural boundary of a body of water, have certain common law rights, i.e. riparian rights, to benefit from that unique location.

Common law rights, which still exist today, include the right of unobstructed access to and from the water, a right that would preclude the Crown or its agents from placing something on the foreshore without the owner’s permission.

Others are the right to protect property against erosion by revetments constructed within the property boundary, but not on the beach or Crown foreshore.

Another right is the right to apply to the province for a dock licence of occupation on Crown land/foreshore. This is not a lease and does not provide for exclusive use.

Another right is the right of a natural accretion. Where a property boundary is tied by legal description to the natural boundary and that natural boundary moves by a slow and imperceptible process of nature, a claim may be made to have the lot re-surveyed to include the accreted land.

No such private rights exist where a public road or strip of vacant Crown land lies between the private land and the natural boundary, such as is the case in parts of Okanagan Centre/Landing.

The physical forces in wind and wave actions are constantly re-shaping the foreshore. The ramifications of attempting to interfere with that process are obvious. Manmade barriers totally re-direct the erosion/dereliction and natural accretion process, and significantly impact on the biological resources present. These same barriers invariably cause an impediment to public passage along the foreshore. It is so evident when one examines the dynamic effect of these barriers when you look at an aerial photograph of the Crown foreshore in Kelowna from its more natural state, 50 plus years ago, compared to today.

The foreshore is, in common law, the public domain. While the Land Act provides the Crown with statutory authority to designate exclusive use in certain areas to serve a greater public interest, it is a principle that public access be protected wherever possible. The water below the foreshore is also public domain, but federal rather than provincial law deals with stewardship of the public right to use it.

It is unfortunate that the City of Kelowna chooses not to acquire a Crown foreshore head lease from the province to control and manage waterfront activity within its administrative boundary.

Municipalities in Peachland and Summerland did so over 40 years ago, and since have jurisdictional control of development and use along their foreshore. For the most part, the public has the right of free and unrestricted passage along the beach. S. Gorkoff, W. Kelowna