Report of Research, Field Investigation and Survey of Robert D ...

6.3.11 Clarke v. Canada (Tabs 28 and 29)
This is an appeal to the Supreme Court of Canada, which overturned the Alberta Supreme Court
ruling (included in Volume 3 at Tab 28). At the Alberta Supreme Court it was found that the
addition of alluvial material to a raised ‘bench’ did not constitute a true accretion, partly
because the City had deposited trash on the bench, which contributed to the deposition of silt
and partly because the bench was much higher than the level of much of the alluvion, and so
could be distinguished from the more recently created land addition.
The Supreme Court of Canada ruled that it did qualify as a legal accretion and that Clarke was
entitled to the land. There is a thorough review of the law regarding accretion under English
common law, but no surprises, since many more recent cases have accepted and built upon this
ruling. There were presumably (but not necessarily) sidelines which would have restricted the
accretion Clarke was entitled to, assuming that it extended beyond these boundaries, but there is
no discussion to give us guidance in this regard.
6.3.12 Chuckry v. Manitoba (Minister of Public Works) (Tabs 30 and 31)
This case arose from a dispute regarding compensation for land expropriated and then flooded
as part of a Water Control Work on the Assiniboine River. Chuckry claimed that he owned an
additional 59 acres due to accretion, while the province of Manitoba denied this. During the
expropriation by the province he was not compensated for the accreted land so he appealed (Tab
30), but the appeal was dismissed. The Supreme Court of Canada allowed the appeal and
overturned the Manitoba Court of Appeal ruling.
This case again asserts the fact the there is a right to accretion by the adjoining riparian owner.
However, there is an interesting comment which might guide us in the question of statute law
and when it takes priority over common law. In Tab 30, at para. 49, Justice Dickson writes: “In
the Keewatin Power Co. v. The Town of Kenora [1908] 16 O.L.R. 184, Moss C.J.O. held the
common law of England relative to property and civil rights, as introduced into Ontario in 1792
except in so far as repealed by Imperial legislation having force in the province, or by provincial
enactments, to be the rule for decision on the rights of riparian assets. The Court held in respect
of lands granted by the Crown bounded by the Winnipeg River, the title to the bed of the river, ad
medium filum aquae passed to the riparian owners by virtue of the grant to them, there being
nothing in the grants to rebut the presumption.
Justice Moss was speaking specifically on riparian rights, but I believe this applies also to all
civil and property rights. As a result of this ruling the province passed the Beds of Navigable
Waters Act after the fact to correct the situation. In our case we already have provincial
legislation pre-existing (in the Surveys Act) which it would seem to me has already over-ruled
any common law.
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