The Common Law Right to Protect Waterfront Land from Erosion

By Del Elgersma

Del Elgersma summarizes the recent BC Supreme Court decision in the case of Fonseca vs Gabriola Island Local Trust Committee, which affirms the “ancient common law right” of waterfront owners to protect their land from erosion.

BACKGROUND

  • The Fonseca’s are an elderly Burnaby couple (in their ‘80’s), married over 60 years, who have owned waterfront property on Mudge Island, near Gabriola, since 1991.
  • In 2003 they received a provincial license and built a concrete boat ramp.
  • Over the next few years they built various structures on their property along the shoreline, including a deck and two seawalls, without the approval of the local government, the Gabriola Island Local Trust Committee.
  • The Gabriola Island Local Trust Committee has the status and powers of a local government under the Local Government Act.
  • A bylaw prohibited any structure within 30 meters of the sea. There was an exception where the frontage on the sea was adequately protected from erosion by natural bedrock – in that case, the setback was reduced to 7.5 meters, but that did not help the Fonseca’s: they didn’t have bedrock, and their structures were right along the shoreline.
  • In 2012 they had a dispute with a neighbour, who complained about the structures, which resulted in enforcement action by the local government and ultimately this case.

DECISION

  • The judge ordered the removal of a deck and certain fences which were built within the setback area and which were not for the purpose of preventing erosion.
  • However, the judge agreed that there is a common law riparian right for a waterfront landowner to protect their property from erosion by the sea.

(Technically, riparian rights are rights related to streams and rivers, while littoral rights are rights related to the sea or lake-shore. However, it is common for both types of rights to be referred to as riparian rights.)

The judge stated, “this riparian right is grounded in Roman and, subsequently, English law that allowed landowners to protect their property”. He referred to two old English cases, coincidentally both from 1828, which outlined this right, and included this quote from one of those cases:

“It seems to me that every landowner exposed to the inroads of the sea has a right to protect himself, and is justified in making and erecting such works as are necessary for that purpose”

Justice Masuhara then stated “I find that there exists a common law right to protect your property from erosion caused by the “inroads of the sea”.

The remaining issue was whether this common law right had been extinguished. Under rules of statutory interpretation, common law rights continue unless modified, altered or abrogated by statute. The abrogation must be express or necessarily implied; the judge found neither. While the Local Government Act gives local governments wide powers to regulate land use and structures, there is no specific abrogation of the right to protect land from erosion. The judge therefore concluded that the setback bylaw infringed the Fonseca’s common law rights and was inapplicable to the seawalls.

Unfortunately, within two weeks of the decision the local trust committee announced it would appeal the decision. In a press release they stated:

“We are disappointed with the Court’s narrow interpretation of the law and decision that B.C. local governments cannot enact zoning regulations to prohibit seawalls”.

The trust committee’s argument that the common law has been abrogated seems destined to fail. The BC Government itself has acknowledged that the right still exists!

The Ministry of Environment published a paper on riparian rights in 1990 (updated in 2008). The paper, titled “Riparian Rights and Public Foreshore Use in the Administration of Aquatic Crown Land”, has much to say about the common law right recognized in the Fonseca case.

Here are some excerpts from the paper:

“British Columbia recognizes the right of upland property owners to protect their land from erosion or flooding by building embankments, dykes, or other protective improvements. This right may be exercised only on the upland property. Owners have the right to install protective structures on their own land; but they require the consent of the Crown to extend any structures below the natural boundary.

“As defined in section 1 of the Land Act, natural boundary means the visible high water mark of any body of water…

“Accretion and Erosion
Land abutting a body of water is subject to accretion and erosion.
A waterfront property owner owns land that has slowly and naturally accreted once that land takes on upland characteristics.
This situation can also operate in reverse. When the upland is slowly and naturally eroded, the land lost becomes part of the foreshore or bed of the adjacent water body. The Crown then owns the land below the natural boundary.

“Summary
Of the historical or traditional riparian rights and related property rights mentioned here, three have been abrogated by statute;

  • The principle of ad medium filum aquae (the concept that your boundary extends to the middle of any adjacent stream or river).
  • The right to water flow of undiminished quality and quantity.
  • The right to construct facilities on the foreshore to provide for access to deep water.

“Three riparian rights that do apply in British Columbia are:

  • Protection from erosion by an owner.
  • Accretion and Erosion – ownership of naturally accreted material which has taken on upland characteristics.
  • Ingress and Egress – access to and from navigable waters.

“The right to protect waterfront property from erosion is relatively well established. The limits of that right are defined by the boundaries of the upland property being the location of the present natural boundary as it exists from moment to moment. To erect protective works beyond the present natural boundary needs the consent of the Crown.

Given these statements, it is hard to imagine that the Court of Appeal could decide that the common law right to protect your land from erosion has been abrogated.

This right is very important in BC, because land lost to erosion cannot be reclaimed, it becomes Crown foreshore land.

TAKEAWAYS

  • In the Fonseca case, the judge found that there had been actual erosion – if there was no evidence of erosion (or at least no real threat of it), the result may have been different.
  • If the local trust committee wins on appeal, the decision applies retroactively, so any structures built while the appeal is pending would be non-compliant.
  • The judge confirmed that local governments can regulate how seawalls or other anti-erosion measures are constructed – if the local trust committee loses the appeal, expect to see municipalities update their bylaws to regulate this.
  • If the trial judge’s decision is upheld, the best time to build protective structures might be immediately after the appeal, before the municipality brings in onerous bylaws (or before the province enacts legislation to abrogate the right).
  • However,
    • be careful that structures don’t result in erosion to your neighbour’s property, and
    • be prepared to prove that there was actual erosion, or at least a real threat of erosion.

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