More readers lately than I can ever recall are asking hard questions about the legalities and illegalities of access to fishing waters in Alberta.
Up until about 2003, the annual Alberta Sportfishing Regulations contained this essentially accurate, but simplistic statement: “Anglers may fish in any natural lake or stream that is open to fishing. Respecting the rights of landowners will help maintain access to many sportfishing areas. Anglers must not trespass on privately owned lands to reach waters or while fishing. This also applies to private lands adjacent to where stream bank fencing has been done under the Buck for Wildlife program.”
In the 2012 Regulations, after even more touchy-feely pap, there is now only this under the heading Access to Fishing Waters: “It is the angler’s responsibility to know, understand, and abide by access conditions that apply when using and enjoying Alberta’s lands. Permission is always required before entering or crossing: Private land (from landowner).”
There follows a long list of places you can’t fish without first getting permission from someone, but nothing is said about where you can access waters and fish without asking anyone. Thus, confusion prevails among anglers and landowners in Wild Rose Country, and ugly fences, signs, and confrontations are becoming more common.
Somehow our government has never been able to bring itself to inform Alberta anglers exactly what Alberta law says regarding the most important access they need: simply being in, on, or near enough the water to make a cast.
The basic answer to that question is simple, if you know where to look, but even many of my fishing lawyer colleagues have no idea. So, if our government, in the annual Sportfishing Regulations can’t or won’t tell sport fishers what Alberta law, The Public Lands Act, under the heading “Rules of Law,” section 3 (1) says, then I will:
“Notwithstanding any other law, the title to the beds and shores of
(a) all permanent and naturally occurring bodies of water, and
(b) all naturally occurring rivers, streams, watercourses and lakes is vested in the Crown in the right of Alberta …”
In a nutshell: the beds and shores of rivers lakes and streams in Alberta are public land and you have a right to be there and fish if you are licensed and the season is open, but you have no right to trespass on private land to get there.
The guide could also tell us that legal access to waters might be gained at the pitifully few public fishing access sites we have in Alberta, or at bridges, or down road allowances, for example, or from other public land, but that is probably too much to expect of our government.
Some anglers are aware of the basic “Rule of Law,” but often ask: “Where does the bed and shore start and private land end where a river or stream flows through or a lake is on private land?”
In 1921, Alberta’s highest court, in the case of Flewelling vs. Johnston, decided that the boundary of land adjoining navigable waters in Alberta would not be ad medium filum aquae, to “the middle thread of the stream,” as it was in England, but rather the “ordinary high water mark,” a line to be determined where vegetation ceases or the character of the vegetation and the soil changes.
In 1930, in the Supreme Court of Canada case of Clarke vs. The City of Edmonton, Mr. Justice Lamont, speaking for the whole court, said this:
“But neither the line of ordinary high-water mark, nor of ordinary low-mark, nor of a middle state of water, can be assumed as the line dividing the bed from the banks. This line is to be found by examining the bed and banks, ascertaining where the presence and action of water are so common, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself…. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any way so as to derogate from or interfere with the right of navigation which by law belongs to the subjects of the realm, or the rights of fishery, which is prima facie common to all….”
(Since the “Rule of Law,” quoted above, was passed in 1931, “navigability” has not been an issue in Alberta.)
All my recent inquiries, strangely, are about brawling freestone rivers — the Clearwater, Livingston, Castle, Oldman — where it is obvious that the rocky foreshores are public land from which, if you can get onto them legally, you can fish for miles to your heart’s content, or so long as your joints hold out. But in many other Alberta streams, the adjoining landowner owns the bank right to its steep, grassy edge, and, to be “legal,” you’d better stay in water which is often deep enough to drown you..
Bob Scammell is an award-winning columnist who lives in Red Deer. He can be reached at bscam@telusplanet.net.