MNRF’s consultation on anchoring restrictions: One hot mess

UPDATE: Wally Moran on the Boating Georgian Bay Facebook group has posted (evening March 8) that he has heard directly from Grayson Smith, the minister with the MNRF portfolio, who told him “in no way is the Ministry interested in changing the rules for anchoring for cruising boats.” More when there is an official statement that the MNRF is standing down.

I attended the first of two scheduled online information sessions and Q&As held by Ontario’s Ministry of Natural Resources and Forestry (MNRF) on its proposed new regs that supposedly are meant to address floating homes and cottages but as written by accident or design would kick cruising boats out of the vast majority of anchorages on Georgian Bay and the North Channel. The staff must have had some inkling of the response they were about to receive from boaters (who dominated participation), but I was impressed in not a good way with their lack of preparation and what became clear was an incuriosity on the part of the ministry as to how the regs would drastically impact recreational boating. For all they kept saying that they were gathering feedback for a regulatory proposal that was only an idea, they’ve been at this since last spring, when they initially invited comments. It’s astonishing that they came up with a proposal whose cure is far worse than the disease it purports to address.

I don’t want to recap the entire issue here. In brief, in a supposed effort to outlaw floating accommodations on waters of the province, the MNRF is proposing a radical change to regulations affecting what it calls “camping on water.” The presentation made clear it intends to forbid floating accommodations built on barges and the like. Any sane person would wonder why the MNRF has also decided to go after cruising boats. Its explanatory illustrations showed a typical express power cruiser, keelboat, and houseboat, in case there were any doubts.

As I explain over on my Anchoring Rights page, the province has striven to address “squatting” on the water by considering anchoring to be a use of the Crown bed, which leads the province to define anchoring a vessel with accommodations as “camping on water.” At the moment, you’re limited to 21 non-consecutive days in any one spot in a year, and you then have to move 100 meters. The new regs would reduce that to just 7 non-consecutive days with a required move of one kilometer. In other words, once you had logged seven days somewhere, you would be subject to an anchoring kill zone a kilometer in radius. That’s bad enough for cruisers that revisit a favourite anchorage more than once in a cruising season and then want to visit another one close by. The real kicker is that anchoring would be forbidden within 300 meters of a developed shoreline. That’s mainly to protect cottagers, and development technically could be as little as a six-foot dock stuck on the rear of an island property.

Like other boaters, I started going through my charts to evaluate the regulation’s impact. Most every anchorage I use between our home port of Midland and 12 Mile Bay, just for starters, would now be off limits. Let me add that I avoid crowded anchorages. All it takes is one cottage on some part of an anchoring area to create a 300-meter exclusion zone that wipes out an entire anchorage. As I have shown, the north end of Beausoleil Island in Georgian Bay Islands National Park would be almost entirely off limits to cruising boats.

Participants could type questions into a chat, and I asked how the proposed regs were compatible with the appeal court ruling in the Al Will case, which you can read about on my anchoring rights page. The case is not obscure. It is fundamental to anchoring rights in the province, and the government of Ontario lost in the first go-round, and then lost on appeal. The appeal ruling made clear that anchoring is a right of navigation protected by the Canada Shipping Act, a federal law, and that no lower authority can impinge on that right, particularly by excluding some navigable waters from anchoring just because the province feels like it. So how does the province expect to create an arbitrary 300-meter exclusion zone throughout the province’s navigable waters based on adjacent private property?

When the MNRF staffer read my question aloud, she said they were not familiar with the Al Will case and that I was welcome to submit information.

That was a bad sign.

There was another hiccup, when a staffer explained the existing 21-day rule. They said it meant you could stay anchored somewhere 21 days, then would have to move somewhere else. I corrected them in the chat, saying the 21 days were non-consecutive over the course of the year, and they acknowledged that. A staffer also said that the 7-day rule would also be non-consecutive, and presented it like this was no big deal. You go somewhere for three days, then go back for four, and then that’s it for the year. The one kilometer radius needless to say would snuff out other local options in popular cruising areas.

People who posed questions and got to ask them with their mic activated were overwhelmingly mystified and upset with what would happen to cruising in Georgian Bay and the North Channel. (The host could not activate my mic and I wasn’t able to address the Al Will case.) Most anchorages would be lost entirely. I was tempted to send the staff home with some homework. Get out the Georgian Bay charts, look at the stretch of the 30,000 Islands between Midland and Parry Sound, one of the finest cruising grounds in the world. Now point out to me which anchorages still would be available along the route. There aren’t many, as I’ve mapped out some of the main losses.

People wondered who the MNRF had consulted. The most telling moment for me was when a representative of the Georgian Bay Association had the chance to speak. The GBA represents cottagers’ associations on Georgian Bay and the North Channel—thousands of cottagers. It had not asked for the 300 meter exclusion zone, and opposed it. The GBA has worked hard in partnership with Boating Ontario to create a mutually respectful experience of the bay, and its representative was understandably anxious that the issue of floating residences not transmogrify into a cottager-boater war, which is exactly what the MNRF’s proposal is threatening to inculcate.

The staff was shaky and a bit evasive/elusive on anchoring rights. They stated early on that the regulation would not infringe on the federally guaranteed moorage rights enjoyed by boaters. Saying that is one thing, not doing it is another. As its example of reasonable moorage, a staffer cited having to stop because of a mechanical breakdown. I typed in the chat that moorage (anchoring) rights are not limited to breakdowns. At another point, a staff said that moorage rights weren’t firmly decided and would have to be settled by the courts. As the session continued, staff started freestyling/backtracking on their limited description of anchoring rights of cruising boats, pretty much reaching the point of conceding that you can anchor for whatever reason you like, including enjoying the scenery.

At that point, the entire premise of the proposed regs collapsed. If the province is going to acknowledge (as it must) that it has no right to infringe on anchoring rights protected under the Canada Shipping Act, and thus could not tell cruising boats where they could not anchor based on proximity to shoreline development, what is the point of the proposed regulations? If the regs already intend to disqualify floating accommodations (things on barges etc) from enjoying ANY anchoring privileges, why go after cruising boats at all?

I think the answer is twofold. First, the province knows it has a big problem trying to define what is and isn’t an undesirable floating accommodation. Anchoring rights under the Canada Shipping Act are so broad that even barges pushed around by tugs enjoy them. And so the province must have felt compelled to cast a very wide net on vessel types, but that only runs afoul of the federal rights cruising boats enjoy. The other part of the answer is that the province obviously has been listening to militant politicians that have constituencies of shoreline property owners, and they would be absolutely delighted if a wide broom could just sweep all the cruising boats out of their privileged enclaves. When staff was pressed by one attendee on the rationale for the 300 meter zone, they replied with a vague reference to sociocultural issues, and as the attendee wisely replied, what they were saying was that people that own million-dollar waterfront properties don’t want their views spoiled by boats, and that the ministry seemed to feel the property owners’ desires trumped the rights of boaters to enjoy the same views.

One flabbergasted commenter reminded staff that cruising boats aren’t some phenomenon that popped up during COVID and created an overnight crisis in shoreline areas. Cruising has been going on for a long time, since before the Second World War, he guessed. Actually, on Georgian Bay, it’s been going on since the 1870s. It predates the proliferation of cottages. I’m a historian. I have the receipts. In May 1879, boating enthusiasts in Parry Sound formed the slightly tongue-in-cheek Parry Sound Yacht Club, but there was no questioning their enthusiasm for recreational boating. On October 24, 1879, the Parry Sound North Star reported: “Messrs Starkey, Switzer and Hamilton set out from Parry Sound on the first-named gentleman’s yacht this morning.”  (Talk about pushing the cruising season…)

Some attendees wondered if the Ministry would consider a smaller exclusion zone. My attitude is that the MNRF has no right to dictate ANY exclusion zone. As written, its regs would turn most of the beloved anchorages of Georgian Bay and the North Channel into a giant version of the Tadenac Club of eastern Georgian Bay, where boats are forbidden on its waters through some mysterious charter.

In a session like this, it’s hard to assess how much impact the staff will have on the ultimate form of the regulation. My feeling is: not much. This beast must have some political backing, and it is going to take some concerted pressure not only from boaters, but also (especially) marina owners and communities that rely on cruising boaters for livelihoods to make the ministry come to its senses. In the meantime, my chief concern is that the ministry is weak/waffly on anchoring/mooring rights that are federally protected. They can’t make vague assurances to cruising boaters on one hand and leave cottagers on the other hand with the impression that they can chase away any cruising boat that comes within three football fields of their property.

Ultimately, if it’s not careful, the MNRF will discover that it’s overplayed its hand, and could find that using occupation of the Crown bed (with the flukes of an anchor) to create something called “camping on water” won’t withstand a larger court challenge intended to protect navigation rights.

Additional thought: what remains unclear to me is whether this exclusion zone would apply regardless of whether you anchored overnight. To my eye, it would be in effect for an afternoon visit to a place you like to swim or fish, if your boat has accommodations.