Splake wrote:
Unfortunately I believe Matt's interpretation is wrong when considering private property. The only potential exception would be if the lands that have to be crossed to portage were publicly owned and had been sold off. I'm not sure what the cut off date would be for the sale, but I know it would have to be "relatively" recent - ie: not going back to the 1800's.
Private property owners are not legally required to allow people to cross their land without permission. Even if previous owners allowed portaging, any new owners are not obligated to continue to allow portaging or water access.
The Credit River case specifically considered private property and argued extensively on its historical uses.
I agree with you, that the decision did not agree the private property owners were legally required to allow people to cross their land without permission in this particular case of the Credit River.
What the case established, was that the criteria for requiring that private property owners allow the passage of people and goods along a portage on their land, is consistent with the statement of;
The Ontario Public Lands Act (March 31, 1997), Chapter P43, Item 65(4): "Where public lands over which a portage has existed"
There was only required to be a portage on public land before the land became private. No timeline or time limits were established. The Credit River failed this test because it was not proven that an historical portage existed before the dam was built. This dam was privately constructed and of course there was no prior portage because previously there was no impediment at that location.
In the case of the Burnt River it was a logging route and potentially traveled by canoe even before the railway was built. Also we have an Ontario MNR route pamphlet from 1980 with all of the same portages on it. It is quite clearly an established route with documented portages.
So I disagree that any new land owner can arbitrarily decide to stop allowing people to cross their land without permission.
Where the text from the City of Kawartha Lakes says;
1.) "the portages are no longer permitted due to being on private property and
2.) they have not been maintained and
3.) therefore are very unsafe at this time.
4.) The section referenced above is not navigable at this time."
#4 is legally incorrect. The river bed has essentially the same status as Crown land: It is a navigable waterway.
#1 is directly in conflict with the Ontario Public Lands Act (March 31, 1997), Chapter P43, Item 65(4) so long as the land over which the portage passes
was at one time Crown owned before becoming private and the portage was already there. Very easy to prove in this case since the loggers would have needed to walk around the rapids.
#2 is largely irrelevant. Whomever reported to the City their desire to prevent the passage of people over the portage is very likely concerned about their personal liability. However, in order to be held liable for an injury they would have to be found to have acted in a negligent way. Negligence is very difficult to prove and since the Act does not require maintenance it would also be impossible to suggest #3.
#3 There is no definition for what is safe. It is literally a track through the forest. There is no standard or definition for what an unsafe portage is. There is no standard or definition for what a safe portage is. I am confident the fact that there are old printed documents would be sufficient to identify these as established portages and their maintenance status has no legal effect.
I am assuming that someone has purchased a cottage and is now afraid that they are required to maintain the portage, when they are actually not. This is a fairly common land use conflict. The Act only requires that the portage be available and accessible for use. It does not have to be maintained.
Splake wrote:
any new owners are not obligated to continue to allow portaging or water access.
Yes any new owner is obligated to allow portaging but not to water access since it is the river that is open to navigation and not to or from adjacent lands.
Anyway, this is highly ironic since the reason for the City of Kawartha Lakes to publish and distribute a pamphlet is to attract paddlers to the area. There is probably someone giving them some grief and the council is trying to deal with it themselves.