Thursday, 18 July 2013

A SHORT(ish) NOTE ON WATERFALL ACCESS

A quick word about access to waterfalls in Nova Scotia. There are many places where a brook which contains a waterfall flows thru a private owners land, and respect for their property should be paramount in the mind of any waterfall enthusiast. One should ALWAYS seek permission of the landowner to approach the falls, and in many cases not only will they be more than willing to allow you on the property to view the falls, but will tell you some of the history and their memories of the site.

Moose Brook in Hants County is a fine example of this, the elderly woman who owns the home next to the brook those fine falls are found upon is more than willing to discuss the falls with you, and to ensure that folks stay on her side of the brook so as not to disturb the neighbours farm animals. When approaching the site for the second time to gather improved photos of the falls, she told me that how readers of this blog have stopped in for tea after their visit to the falls, and one CHERISHED and anonymous reader came by the next day with some daylily bulbs for her flower bed in front of the house.

The other end of the spectrum is those who post NO TRESPASSING signs along the property and especially at the access point. Many visitors to Upper Gillis Lake Falls have complained about the land owner above the falls who has threatened some visitors with a firearm for trespassing.

It must be noted, here in Nova Scotia, that while any land owner may own the lands SURROUNDING the brook which contains the waterfall, they DO NOT own the brook itself. EVERY lake, river, stream and brook in the Province of Nova Scotia is Crown Land and legislation enshrines this fact:

The Angling Act of Nova Scotia (http://nslegislature.ca/legc/statutes/angling.htm)  is quite clear in regards to access and ownership of the brooks, lakes and beaches in our province. It states:

Right to go upon land, river, stream or lake
3 (1) Any resident of the Province shall have the right to go on foot along the banks of any river, stream or lake, upon and across any uncultivated lands and Crown lands for the purpose of lawfully fishing with rod and line in such rivers, streams or lakes.
(2) Any resident of the Province shall have the right to go on, upon or across any river, stream or lake in boat or canoe or otherwise, for the purpose of lawfully fishing with rod and line in such rivers, streams or lakes.
(3) The rights conferred by this Section shall not in any way limit or restrict the right of any owner or occupant to compensation for actual damages caused by any person going upon or across such lands for the purpose aforesaid, and shall not be construed to give the right to build any fires upon such lands. R.S., c. 14, s. 3.

Note that the act states ANY river, stream or lake. There is NO private ownership of any watercourse in Nova Scotia. While privately held property may enclose a watercourse, that stream or lake remains Crown Land. I carry a valid Nova Scotia Fishing License when I am exploring, as well as a copy of the Angling Act to show to landowners when hostility such as this occurs.  The owners there have even pointed firearms at people they feel are trespassing over their property. They placed gates against travel up an established trail to the falls, contrary to the Crown Lands Act of Nova Scotia which states:

61 Enclosure of roads or watercourses on application

(1) The Minister may, on application being made by a holder of land, grant to the holder a permit to enclose wholly or in part any road or watercourse by which the land is traversed or bounded, subject to payment of such annual rent as may be determined by the Minister.
(2) An enclosure permit may be granted subject to:
(a) conditions relating to the payment of rent,
(b) conditions requiring the erection of gates or the provision of some other means of access or both (so as not to interfere unnecessarily with any traffic), and
(c) such other conditions as the Minister determines.

While I respect a landowners privacy, and when there are issues regarding access, will work with the land owner as best as possible to educate them about the rights of citizens and try to find middle ground for access to the falls site. Most landowners are proud to share the waterfalls that are located within their property boundries with others, but some people are quite ignorant and agressive about protecting what they THINK is theirs. 

Watercourses within the province remain a portion of Crown Lands, to the point of the ORDINARY HIGH WATER MARK. This is defined within the Land Surveyors Act of Nova Scotia as: "the limit or edge of a body of water where the 
land has been covered by water so long as to wrest it from vegetation or as to mark a distinct character upon the vegetation where it extends into the water or  upon the soil itself." 

These issues are important, and need to be addresssed. The ownership of  “watercourses” in the Province of Nova Scotia rests in the Provincial Crown. The Water Act of Nova Scotia was enacted in 1919 with the effect of vesting ALL 
watercourses, whether previously granted or otherwise, within the Province of Nova Scotia as of May 16, 1919:

"Notwithstanding any law of Nova Scotia, whether statutory or otherwise, or by a grant, deed or transfer heretobefore made, whether by the Crown or otherwise, or any possession, occupation, use or obstruction of any water course, or any 
use of any water by any person for any time whatever, every water course and the sole and exclusive right to use, divert and appropriate any and all water at any time in any water course, is declared to be vested forever in the Crown in right of the Province of Nova Scotia."

A “Watercourse” was defined within the 1919 statute to include:

2 (b) … every water course and the bed thereof, and every source of water supply, whether the same usually contains water or not, and every stream, river, lake, pond, creek, spring, ravine and gulch; but shall not include small rivulets or 
brooks unsuitable for milling, mechanical or power purposes.

Although this seems to preclude ownership with regards to industrial usage, Justice Davison ruled in Corkum v. Nash (1990), 71 D.L.R. (4th) 390 (N.S.S.C.) within paragraph 33:

"The intention of the legislature was to permit the Province to take control of watercourses in order that watercourses and the water are preserved for the benefit of the public for a number of uses included fresh water supply irrigation and industrial and recreational purposes…" 

(NOTE: RECREATIONAL PURPOSES)

When the Water Act was revised in 1972, the exclusion regarding "small rivultes &c" was removed. It was ammended to read:

k) 'water course' means the bed and shore of every river, stream, lake, creek, 
pond, spring, lagoon, swamp, marsh, wetland, ravine, gulch or other natural body 
of water, and the water therein, including ground water, within the jurisdiction of 

the Province, whether it contains water or not;

These definitions were also rolled into the Environment Act in 1994 within S.103:

every watercourse and the sole and exclusive right to use, divert and 
appropriate any and all water at any time in any watercourse is vested forever in 
Her Majesty in right of the Province and is deemed conclusively to have been so 
vested since May 16, 1919, and is fully freed, discharged and released of and 
from every fishery, right to take fish, easement, profit a prendre and of and from 
every estate, interest, claim, right and privilege, whether or not of the kind 
hereinbefore enumerated, and is deemed conclusively to have been so fully 

freed, discharged and released since May 16, 1919.

So, to close, please respect ownership and private property, do not tromp across someones yard to access the falls, anywhere in the province, but remain within the boundries of the Angling Act and be responsible. Waterfalling is an eco-friendly and eco-conscious pursuit, and I encourage EVRYONE to maintain a "zero impact" approach to enjoying these sites. Thank you.

~Abvhiael