Anchoring Rights

Anchored at the north end of Beausoleil Island, Georgian Bay Islands National Park, July 2021. Photo: Douglas Hunter

“Where can I anchor?” is a question recreational boaters sometimes find themselves asking in Ontario’s Great Lakes waters. My concern on this site is strictly with wilderness cruising, but even there, situations arise where uninformed boaters can find themselves wondering if they have the right to anchor. And part of that right is how long you are permitted to anchor in a given spot.

To begin, the right to anchor is fairly broad. Navigation rights are protected under Canada’s Constitution Act of 1867, which assigns them to Parliament, and they are controlled by the federal government principally through the Canada Shipping Act. All navigable waters consequently are under the federal domain. As anchoring is considered under common law to be an inherent part of navigation, the right to anchor a vessel is also considered to be unassailable, except for certain restrictions. For example, you can’t interfere with navigation by anchoring in a shipping lane or small craft channel, and when in a harbour you’re subject to the directions of the harbour master. Unless specific exceptions have been made under the Canada Shipping Act, a boater’s right to anchor in navigable waters technically cannot be controlled or denied by a lesser authority. As I note over in Public and Private Lands, cottagers cannot bar you from anchoring in front of their property, because they don’t own the bottom. The nav rights in the Canada Shipping Act prevail—unless you’re abusing that right with unauthorized occupancy, as determined by Ontario’s Ministry of Natural Resources and Forests (MNRF).

One caveat here arises from water lots: chunks of real estate that are either occasionally or permanently submerged. They may be leased by the Crown or a municipality to a private interest (almost always the neighbouring “riparian” landowner), but there are instances in Ontario of water lots being owned outright by adjoining property owners. Water lots are a murky area of law to me, and I would not take my word as gospel, but it seems that rights of navigation under the Canada Shipping Act are fairly powerful. That right to usage of navigable water would seem to trump the right to exclusive use of the land beneath it. It might include the right simply to pass over a water lot while navigating, including trolling while fishing recreationally. But anchoring, while considered a part of navigation protected by the Canada Shipping Act, may be more problematic.

Things get complicated with anchoring because the anchor has to be secured to the bottom of a lake or river. In Ontario, that bottom for the most part (water lots excepted) is called “Crown bed,” and is Crown land under the purview of the MNRF. The ministry has said it has the right to limit how the public makes use of those bottom lands, up to and including sticking an anchor in it. (During the covid-19 pandemic in 2021, the government of Ontario, in an effort to restrict movement in the province and prevent people from gathering with people outside their immediate household, forbid the use of Crown lands for camping, and made clear that the restrictions also applied to anchoring overnight.) The MNRF’s limitation efforts are also triggered when you run a mooring line to shore or set up so much as a lawn chair on the adjacent land, if it too is Crown land, which includes provincial parks and nature reserves. Similarly, a water lot owner probably has the right to tell you not to anchor in their lot, as you would be fixing yourself to the property in the same way as tying your boat to a tree on shore or to their dock.

(Note that not all Crown land in Ontario is under the control of the MNRF. The federal government has oversight of Crown lands represented by First Nations reserves and national parks. As well, all Crown land islands on eastern Georgian Bay south of Moose Deer Point are federal. See Public and Private Lands for more.)

Back in 1997, cruising boaters experienced a serious challenge to their rights of navigation when what was then the Ministry of Natural Resources (which I will refer to for consistency by its present name, MNRF) introduced an anchoring policy for Massasauga Provincial Park, which encompasses an archipelago of islands accessible only by water on eastern Georgian Bay. The MNRF introduced the policy after consultation with the Ministry of the Attorney General, which endorsed the idea that entering navigable waters within the perimeter of the park constituted making use of the park. The policy designated specific bays in which anchoring would be permitted within the park’s perimeter (and by default which bays would be off-limits) and set a $10 fee for overnight anchoring within the park perimeter, which became payable by any vessel at anchor after 7 pm.

Echo Bay, Massasauga Provincial Park. Photo: Douglas Hunter.

The MNRF initiative was objected to by recreational boaters, with cruiser Al Will (then the executive director of the Ontario Sailing Association) taking the ministry to court to fight a ticket he was issued for anchoring in contravention of the new policy in Echo Bay in July 1997. The Crown had charged Will under section 8 of the Provincial Parks Act, for unlawfully occupying park land without a permit. The charge was dismissed by a justice of the peace on the grounds that the park policy was unconstitutional, as Will did not go ashore or fix the boat in anyway to shore, merely anchoring in the bay. The dismissal relied on the broad rights of navigation discussed above. The province appealed the ruling, and lost in 1999, with the Ontario Court upholding the original opinion of the justice of the peace that the Constitution “gives Parliament exclusive authority with respect to navigation and shipping.” MNRF as a result abandoned its anchoring policy in the park.

The Provincial Parks Act was replaced by new legislation, the Provincial Parks and Conservation Reserves Act (2006). Section 54 states that “The Lieutenant Governor in Council may make regulations…prohibiting or regulating and controlling and issuing permits for the use of vehicles, boats or aircraft or any defined class of them in provincial parks and conservation reserves.” The new act also says the Minister of what is now MNRF “may establish and charge…fees for entrance into provincial parks of persons, vehicles, boats or aircraft.” (26a) That said, the MNRF is only able to exercise control over fees and access where water bodies are contained entirely within a park or conservation reserve and the boat has to be trailered in. (Regulation 347/07 permits the operation of a powerboat “in waters that are partially but not entirely included within the regulated boundary of a provincial park.”)

Despite the precedent of the Will case, the MNRF has felt it can limit anchoring in navigable waters, including those beyond park and conservation reserve boundaries, on the basis of duration of stay and type of vessel. Neither concept can be found in federal regulations as a means of restricting navigation rights, but MNRF has striven to avoid interfering with the navigation rights that protected Will by deciding how the land it holds in trust for the public can be used. In 2004 the MNRF established a Free Use Policy (PL 3.03.01), which defines the recreational, commercial and industrial activities permitted on Crown land without fees or “land use occupational authority.” (Download a copy here.) The policy limits the use of public lands (including lands on river and lake bottoms) by boaters and campers.

The policy begins by asserting that the public has no legal right to occupy public land, for example by camping, or “to place any material substance or thing on public lands without written consent.” That said, “administrative discretion is to be exercised to allow certain activities in accordance with this policy.”

The operative concept is that the public is entitled to free use of Crown lands, provided that such use remains “temporary.” Any use otherwise becomes what we informally refer to as “squatting.” In this manner, the policy asserts an MNRF right to limit anchoring of a vessel on the “Crown bed” of a water body. It allows that there is no charge for “Activities enjoyed while traveling on navigable waterways as provided for under the public right of navigation which includes the right of reasonable moorage.” The MNRF policy then proceeds to define what the ministry thinks may be interpreted as “reasonable moorage.”

What complicates matters here is how the policy lumps together anchoring and mooring as one activity, which it calls moorage, when boaters generally consider them to be entirely different. Anchoring involves the vessel’s own ground tackle, which can be easily deployed and retrieved. Mooring, on the other hand, generally means connecting the boat to a semipermanent buoy that is fixed to the bottom with a weight or anchor. One might argue that a floating cottage with heavy anchors or concrete blocks holding it in position is effectively moored, but any boater who chucks a readily retrievable anchor or lump of cement over the side will argue that what they’re doing is anchoring. The single term moorage avoids defining exactly what an anchor is. In any event, there’s no such language in the Canada Shipping Act.

The reasonable goal of the MNRF policy is to prevent the province’s waters from turning into a squatter’s heaven of floating residences seeking safe legal harbour as pseudo vessels with constitutionally guaranteed anchoring rights. The policy considers “reasonable moorage” to be a “vessel mooring over the Crown bed of a navigable waterway for a period not to exceed 21 days (at the discretion of the Area Supervisor based on local circumstances).” One exception is “unlimited vessel mooring over the Crown bed of a navigable waterway by the owner of adjacent waterfront property, or property fronted by a road allowance or Crown reserve (Note: This right does not extend to floating cottages, residences etc. unless the operator is exercising the right of reasonable moorage while travelling).” In other words, MNRF is prepared to extend to property owners an unlimited right to anchor a boat on adjacent waters, whether using ground tackle or a fixed mooring, even though the property owner has title to neither the water or the land beneath it. Such a right however is subject to assurances that the boat (or swim float, or dock) doesn’t interfere with navigation. Another key exception to the 21-day anchoring limitation is “any mooring [that is] required due to weather, mechanical or life-threatening emergency only, length of time determined by circumstance.”

Note as well that the 21 days need not be consecutive. You cannot, for example, occupy Crown land for 20 consecutive days, leave for a day to get supplies, and reoccupy the same location without running afoul of the 21-day policy.

This 21-day limit also applies to campers. The policy in their case says they can continue to occupy Crown land after that period if they relocate their campsite at least 100 meters. While the policy has nothing to say about vessels in this regard, I was able to confirm with MNRF that hauling anchor and moving that minimum distance, even within the same anchoring bay, has the same effect.

The province has also taken specific aim at houseboats, while acknowledging the primacy of federal authority over navigation. Regulation 347/07 under the Provincial Parks and Conservation Reserves Act states: “No person shall moor or dock a house-boat in waters within a provincial park without a valid provincial park permit, unless the house-boat is moored or docked in the reasonable exercise of the right of navigation.” But houseboats are banned altogether from Algonquin, Kesagami and Quetico Provincial Parks under the same regulation. Powerboats are also not allowed to “moor overnight” in Kawartha Highlands Signature Site Park “unles the power boat is moored in the reasonable exercise of the right of navigation.”

In 2008, the province successfully secured a third conviction of a man for anchoring a floating cottage in southeastern Georgian Bay (See the MNRF news release at end of this article.) I spoke around that time on the MNRF’s authority to limit anchoring rights with William Sharpe, a maritime lawyer in Toronto. Sharpe told me that while the province “can’t interfere with the federal right of navigation,” it can demand water lot leases and licenses from marinas and yacht clubs, for example, where fixed structures and moorings are concerned. Cottagers with elaborate boat houses have also been required by the MNRF to secure such leases or licenses. It follows that by refusing to entertain leases or licenses where floating homes or cottages are concerned, MNRF can forbid their existence. But Sharpe said that there was a legal “grey area” in distinguishing between a navigating vessel (which is entitled to federally-protected rights) and a floating home. The Canada Shipping Act doesn’t make distinctions between vessels and barges (even ones without engines) when it comes to basic navigation rights, so even something being towed or nudged along by another craft has anchoring rights.

Back in 1997, the feds (via Fisheries and Oceans) repealed the definition of “floating home” in the Fishing and Recreational Harbours Regulations, instead stating, “No person shall berth, in a harbour, a vessel to be used as a residence unless there is an authorization to berth the vessel in that harbour under a lease or licence.” (7.1) But this regulation doesn’t apply to vessels of any configuration being anchored in parks and wilderness anchorages.

Another grey area, Sharpe pointed out for me, was “how long is `transient,’” as “transient” is an important distinction between a vessel engaged in navigation, with protected rights that include anchoring, and a floating abode that really isn’t going anywhere, no matter the nature of the craft. Staying in one place “for more than a couple weeks is probably not transient,” he said. That would seem to rule out turning a legitimate cruising vessel into a de facto floating home. And in choosing the 21-day period, MNRF selected a fairly generous time slot for a legitimate cruiser to stay put in one spot. It would require an awfully self-sufficient vessel (with a large holding tank) to hold out much longer without making a port of call, never mind moving to another anchorage. But as noted, this 21-day period is cumulative. You could violate it by anchoring in the same spot in one season for three separate weeks plus a day. 

While I’m not a lawyer, I’d suggest that leaving a bona fide cruising boat (as opposed to a floating cottage) anchored and unoccupied for any length of time could attract the interest of the MNRF, or invite a complaint to them. Every now and then you hear of someone who has the bright idea of parking a powerboat in a cove and commuting to it by runabout or jet ski. A grey area might be a cruising boat that drops the hook off a park for several weeks, with the crew then using a dinghy to run to the nearest port repeatedly for supplies and going ashore to use public washrooms. Are they still “traveling” as the MNRF would interpret it, or squatting?

Copyright Douglas Hunter. Re-use is forbidden without the expressed permission of the author. This article was first posted in 2008 and was last updated July 29, 2021. Comments? Suggestions? Email me here.

[MNR News Release]

For Immediate Release

January 18, 2008

$4,000 FINE FOR Third Conviction for Floating Cottage Owner

BARRIE — A Midland-area marine contractor has been convicted for the third time for illegally occupying Crown land with his floating cottage.

Raymond John Cote, 57, of Lafontaine, has been fined $4,000 and receives two years probation for leaving his cottage in a bay for almost a month.

Court was told that on May 9, 2006, Cote’s floating cottage was anchored at Beckwith Island off of Severn Sound.  Despite instructions from Ministry of Natural Resources conservation officers to remove the structure, Cote left the cottage in that area until June 2, 2006.  Ontario court rulings say the public right of navigation entitles the boating public to transient only.

In October 2003, Cote was convicted of illegally occupying Crown land in a provincial park after mooring his floating cottage for several weeks at Giant’s Tomb Island of Awenda Provincial Park.  He was fined $3,000 and given 12 months probation.  In the summer of 2004, he illegally moored his floating cottage in waters near Penetanguishene where it remained for over a year until a judge ordered him to remove it or have it forfeited to the Crown.  Cote was convicted again and was fined $5,000 and given an additional two-year’s probation.

Justice of the Peace Gerry Solursh heard the case in October 2007 and rendered his decision in the Ontario Court of Justice in Barrie on January 9, 2008.

The ministry would like to thank members of the public who assisted by reporting these violations.