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Dams and Hydrology

Management of Water Property in the Domain of the State

The Centre d’expertise hydrique du Québec (CEHQ), an agency of the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques, oversees the management of water property in the domain of the State, which consists of the bed of the largest lakes and watercourses in Québec. It belongs to the Québec State and is placed under the authority of the Environment Minister, who controls the activities that are carried out within it.

For the Minister of Sustainable Development, Environment, Wildlife and Parks, management of water property in the domain of the State consists of fulfilling the tasks related to property management and ensuring protection of water resources. This role translates primarily into management of leases, licences, servitudes and acts of sufferance, as well as by the sale or transfer of jurisdiction over certain parts of water property in the domain of the State. Before granting any rights, the Minister of Sustainable Development, Environment, Wildlife and Parks must know the bodies of water for which the bed is part of water property in the domain of the State. The Minister must also be able to specify the limits of the domain with respect to riparian land. Generally, water property in the domain of the State is not registered in the official cadastre.

The Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques also works together with the Ministère des Ressources naturelles, when it comes to surveying land of the State, the cadastral reform program, the small hydro-electric power stations program and the allocation of land throughout the province, particularly for purposes of creating regional parks.

1. Legislation

2. Administrative Framework

Water management in the domain of the State involves three tasks: knowledge, boundaries and licensing.

2.1.  Knowledge of water property in the domain of the State

2.1.1. The expanse of water property in the domain of the State
2.1.2. Application concerning domainal rights
2.1.3 Non-applicability of statutory limitations

2.2.  Defining the boundaries of water property in the domain of the State

2.2.1.   Boundary determination and agreement with a riparian owner
2.2.2.   Instructions of the Ministère des Ressources naturelles
2.2.3.   Cadastral reform and water property in the domain of the State
2.2.4   Applications concerning the State

2.3. Concession of ownership of water property in the domain of the State

2.3.1. Authorization for Occupation Free of Charge
2.3.2.  Occupation Licence
2.3.3. Servitude and Act of Sufferance
2.3.4. Lease
2.3.5.  Sale


1. Legislation

The Watercourses Act, some of the provisions of which date back to 1856, allows the government to authorize the Minister of Sustainable Development, Environment, Wildlife and Parks to grant specific rights over water property in the domain of the State, subject to certain conditions, and to grant the right to flood State land to maintain and operate dams primarily for purposes of producing hydroelectricity or floating timber.

The Regulation respecting the water property in the domain of the State, which was enacted into law with the passage of Order in Council 81-2003 on January 29, 2003, pursuant to the Watercourses Act, authorizes the Minister of Sustainable Development, Environment, Wildlife and Parks to decide alone the granting of specific rights, under certain conditions.

2. Administrative Framework

2.1.  Knowledge of water property in the domain of the State

2.1.1. The expanse of water property in the domain of the State

The State is owner, by sovereign right, to the bed of all of the lakes and watercourses that have not been the subject of a concession by the public administration. The root titles of the State over these beds and watercourses are however presumptive. In each case, there is a need to verify if such a concession has taken place. This information is preserved in the archives of the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques (register of water property).

2.1.2. Application concerning domainal rights

Upon request, the Direction de la gestion du domaine hydrique de l’État of the CEHQ issues notices concerning the navigability or the property ownership of a lake or watercourse. An application must be filed for this purpose using the “répondant sur la domanialité” form that is available. An application form can be completed and filed online. The Direction de la gestion du domaine hydrique de l’État does not make a decision regarding the navigability of a body of water, only a court of law can do so. Where no ruling is present, however, its actions within the territory are based on its opinions.

2.1.3 Non-applicability of statutory limitations

In accordance with the Civil Code, no one may appropriate property of the State for himself by occupation, prescription or accession (Civil Code, section 916).

2.2.  Defining the boundaries of water property in the domain of the State

Natural Bank(French) Embankment(French)
Cliquez pour agrandir - Rive naturelle
Cliquez pour agrandir - Rive remblayée
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Excavated Bank (French) Flood Plain
(French)
Cliquez pour agrandir - Rive excavée Cliquez pour agrandir - Terrain inondé
Click to enlarge

Defining the boundaries of water property in the domain of the State is based on an analysis of evidence that enables one to formulate an opinion regarding the position of the boundary between water property in the domain of the State and the private domain; water property generally starts at the location of the high-water line (Civil Code, section 919).

In accordance with our case law, which, on this subject matter, is based on French customary law, the high-water line in tidal zones in a natural environment is the location where land comes into contact with the water during the period of the highest spring tides. This limit, however, may fluctuate over time depending on erosion and natural accession (Civil Code, sections 965 to 970) and is therefore is not immutable.

Where backfilling or excavation work has been carried out on a shore, the high-water line on the property ceases to move. It is therefore important to determine the location of the high-water line before work begins. Because under legal statutes a riparian owner cannot acquire a part of water property in the domain of the State, regardless of the date backfilling takes place, it is important for an owner to know this limit, which is deemed to be a boundary marker of his land.

To determine this line, the specific facts of each case must be examined, in particular natural vegetation on the water’s edge. The Direction de la gestion du domaine hydrique de l’État of the CEHQ has information on the boundaries of water property in the domain of the State on a number of water bodies throughout Québec and conducts studies in this area. Land surveyors who are surveying along the edges of bodies of water in the domain of the State can make enquiries about information the CEHQ has on record concerning the boundaries of public water property, by filling our an online form which is provided for this purpose.

Boundaries of water property in the domain of the State are demarcated in a number of situations:

2.2.1.   Boundary determination and agreement with a riparian owner

The Minister of Sustainable Development, Environment, Wildlife and Parks is authorized to agree to the limits of the water property in the domain of the State with the owner of adjacent riparian land (section 38 of the Regulation). Where this is the case, administrative fees apply. He does not, however, have the right to be involved in a legal boundary marking process. The Attorney General of Québec must be advised of any legal procedure. (Code of Civil Procedure, section 96)

2.2.2.   Instructions of the Ministère des Ressources naturelles

Any surveying on land in the domain of the State must be carried out in compliance with the instructions of the Minister of Natural Resources, which are issued to land surveyors by the Bureau de l’arpenteur général du Québec. In the instance of sales of parcels of water property in the domain of the State, specific technical instructions have been drafted under section 17 of the Act respecting the Lands in the domain of the State.

2.2.3.   Cadastral reform and water property in the domain of the State

The Québec land register has existed since 1860. For purposes of updating the register, the Ministère des Ressources naturelles, introduced a cadastral reform a few years ago. This ambitious undertaking will produce an updated computerized image that is as accurate as possible of all private property throughout Québec. The Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques is participating in the program as a large owner of land under its authority, including water property in the domain of the State. Although this domain is usually not recorded in the land register, its representation may be distorted due to inaccurate cadastral information regarding riparian property, particularly where shorelines have been backfilled or altered. In each region that is undergoing the cadastral reform process, the Direction de la gestion du domaine hydrique de l’État forwards all of the information it has available to the land surveyor who has been hired to carry out work in a particular area, to ensure that this information is included in the land survey analysis. To obtain information on the cadastral reform program, contact the Ministère des Ressources naturelles at 418 627-8600, for property owners in the Québec City region, and 1 888 733-3720 from elsewhere in Québec.

2.2.4   Applications concerning the State

The Attorney General of Québec is regularly involved in applications for legal recognition of property ownership. This is the case for instance of a riparian owner of water property in the domain of the State who takes his neighbours to court to confirm his title of ownership by having a thirty-year acquisitive prescription legally recognized. During this type of procedure, the Attorney General of Québec receives notice of the application (Code of Civil Procedure, section 96) and asks the Direction de la gestion du domaine hydrique de l’État to formulate its recommendations to him within the prescribed deadline. Where this is the case, due to the non-applicability of statutory limitations of the domain of the State (Civil Code, section 916), the Direction recommends to government attorneys that they that ensure a provision be recognized by the Court in all cases of similar applications that are brought to its attention by a riparian owner, namely:

that such an application for legal recognition of property ownership will not be for the purpose of defining or changing in any way whatsoever, the location of the limit of water property in the domain of the State”, except obviously in instances where the findings of the Direction de la gestion du domaine hydrique de l’État conclude without a doubt that the domain of the State is not adjacent to the land coveted by the applicant.

2.3. Concession of ownership of water property in the domain of the State

The Direction de la gestion du domaine hydrique de l’État can issue legal documents concerning occupation on the bed of a watercourse by structures, such as fill work, jetties, piers, breakwaters, marinas, aquacultural sites, that have been erected in compliance with the Environment Quality Act and applicable urban planning regulations (Civil Code, section 2990) or simply an occupation without works, such as a beach.

Note: All of the amounts, unit rates, minimum rents and administrative fees indicated in this document are those that were in effect on February 27, 2003 and are adjusted on April 1st of each year to take into account fluctuations in the consumer price index.

2.3.1. Authorization for Occupation Free of Charge (section 2, Regulation)

The owner of riparian land may, without the authorization of the Minister of Sustainable Development, Environment, Wildlife and Parks, install free of charge a platform on piles or a floating platform with a movable anchor or a boathouse on piles, provided that its area does not exceed 20 square metres and it does not occupy more than 1/10 of the width of the bed of the watercourse at that location.

2.3.2.  Occupation Licence (section 10, Regulation)

The Minister of Sustainable Development, Environment, Wildlife and Parks may agree, by issuing an occupation licence and by imposing a fee structure, to occupation of the water property for non-profit purposes to install the following structures:

A licence to occupy water property in the domain of the State is valid for a period of one year. A licence is automatically renewed free of charge year after year and becomes invalid automatically by law when the occupation for which it was authorized has ended. (example of occupation licence)

A licence may, however, be issued for a period not exceeding 25 years in the case of a bridge, a cable, a pipe or works other than a jetty. A licence can be revoked by the Minister of Sustainable Development, Environment, Wildlife and Parks for failure to comply with the conditions that were set or conditions for which a licence was authorized.

2.3.3. Servitude and Act of Sufferance (sections 16 and 17, Regulation)

The Minister of Sustainable Development, Environment, Wildlife and Parks is authorized to grant servitudes or acts of sufferance with respect to water property in the domain of the State. In the case of a servitude, the cost is determined according to the standardized value specified in the property assessment roll and may not be less than $250* if the area concerned is one hectare or less, and $250* per hectare if the area is greater. Administrative fees in the amount of $250* are required to process an application, which are deducted from the amount owing when a right is granted. An act of sufferance may be granted free of charge.

2.3.4. Lease (section 19, Regulation)

Leasing, by means of a lease, governs the occupation of the bed of a body of water by structures such as fill work, jetties, piers, breakwaters, marinas, aquacultural sites or occupation without the presence of structures, such as a beach on water property in the domain of the State.

Except for a lease for purposes of aquaculture, a third party who applies for a lease must receive the consent of the adjacent owner of riparian land.

An owner of riparian land who would like to obtain a lease must file a lease application in writing to:

Centre d'expertise hydrique du Québec
Direction de la gestion du domaine hydrique de l’État
675, boul. René-Lévesque Est, Aile Louis-Alexandre-Taschereau,  4e étage, boîte 16
Québec (Québec) G1R 5V7

and specify the reason for the application, as well as the purpose of the occupation or the structure erected on the water property in the domain of the State.

The following documents must be included with each application:

If following an examination, an application is deemed admissible, the riparian owner is required to hire, at his expense, a land surveyor for the purpose of preparing a plan showing the area to be covered by the lease. The plan must be prepared according to the standards of the Centre d'expertise hydrique du Québec and must be enclosed with the lease. The land surveyor is therefore required to download all of the files necessary to successfully fulfill his duties. These files include a graphic representation and provide a summary of information that a plan must contain.

The land surveyor must download the files necessary to fulfill his duties. These files provide information concerning the following:
  1. General instructions (French, PDF document, 37 kb)
  2. Instructions for preparation of the following:
  3. Graphic representation (French, PDF document, 107 kb)

Although the lease that is granted may be long-term (25 years) and registered with the Bureau de la publicité des droits, it is usually valid for a period of one year and automatically renewed, unless one of the parties concerned serves notice to the other stating otherwise (example of a lease).

The Minister of Sustainable Development, Environment, Wildlife and Parks is authorized to govern, by means of a lease, facilities consisting of fill work, jetties, piers and other breakwater type structures, and facilities that are used for purposes of a beach, marina and commercial aquaculture. To grant rights for flooding or other work related to erecting or maintaining dams on land in the domain of the State, the Minister of Sustainable Development, Environment, Wildlife and Parks must first obtain the authorization of the government of Québec; the rent in this instance is determined by an Order in Council.

Change of address of lessee

To notify the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques of a change of address, you must contact the Direction de la gestion du domaine hydrique de l’État  by calling the following number: (418) 521-3818. It is important to have the following information on hand: the file number, lease number, client number (debtor) or name of the client and the name of the watercourse.

Transfer of a lease

Where a lessee would like to transfer a lease, in accordance with a clause in the lease that generally contains this type of provision, he must obtain the consent of the Minister. A copy of the deed of transfer of the riparian property is required, which may be submitted by a legal representative of the owner (notary, land surveyor, etc.), by the new owner or by the former owner. Upon receipt of the document, the Direction de la gestion du domaine hydrique de l’État will issue a letter confirming acceptance of the transfer. If a copy of the deed of transfer is not available, the name and address of the new owner will be requested. To hasten the lease transfer application procedure, an applicant should provide the following information: the file number, lease number, debtor number (client) or client’s name and name of the watercourse.

The lease grants a 45-day period for the Minister to issue a decision regarding a sub-lease or lease transfer. An administrative fee of $35* is charged for an application to transfer a lease, a sub-lease or to make changes to an area that has been leased for profit purposes, for marina purposes or for aquaculture purposes.

Cancellation of a lease

A lessee who files an application to cancel a lease must submit an explanatory letter with photographs, showing that the site has been returned to its original condition. It is very important to indicate the following information on the application: the file number, lease number, debtor (client) number or name of the lessee and name of the watercourse. After an application has been received and the file examined, a letter confirming cancellation of the lease will be issued to the leaseholder. In some cases, an on-site visit by a representative of the Ministère du Développement durable, de l’Environnement , de la Faune et des Parcs may be required.

Obtaining a copy of the lease

Where a lessee requests a copy of a lease, the individual must indicate the file number, lease number, client (debtor) number and name of the watercourse. The lessee may be required to produce specific information or a written request to prove his identity.

A notary, lawyer or land surveyor who acts on behalf of the lessee must certify that he has been hired by the lessee in the written request for a copy of the lease.

Where any other person requests a copy of the lease, the application must include a signed authorization from the lessee. Failing that, the request will be handled in accordance with the provisions of the Act respecting Access to documents held by public bodies and the protection of personal information. A lease contains personal information, the confidential nature of which must be preserved.

Billing

The annual rent payable varies according to the use and whether or not use is for profit or non-profit purposes. Federal and provincial taxes (GST and QST) apply to the rent.

Rent is billed annually to the riparian owner, two months prior to the lease renewal date.

The payment of rent and applicable taxes is collected and deposited by the Direction des ressources financières et matérielles of the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques. If payment is not made within thirty days of the renewal date, the Direction des ressources financières et matérielles will issue the lessee a statement of account. Interest charges will apply in addition to the rent.

Types of leases

Photo : CEHQ

  1. Lease for occupation of a nautical structure
  2. Lease for use of a beach
  3. Lease for a marina
  4. Lease for aquaculture purposes
  5. Lease including a promise to sell
  6. Lease for a regional park

1.  Lease for occupation of a nautical structure (sections 19 to 27, Regulation)

This type of lease is required for occupation of a portion of water property in the domain of the State that has been backfilled or that includes structures such as jetties, piers, breakwaters, etc.

If a lease allows the lessee to carry out activities for profit, the annual rent is calculated at a rate of 10% of the value registered in the property assessment roll. The minimum annual rent is $250*. If only non-profit activities are authorized, the cost of the annual rent is calculated at a rate of 5% of the value registered in the property assessment roll. The minimum annual rent is $50*.

Where a lease is granted to a municipality or a body for non-profit use that provides public access to bodies of water, excluding a marina, the minimum annual rent is $50* per hectare, without being less than $50*.

The maximum area of water property in the domain of the State that can be leased is five hectares.

2.  Lease for use of a beach (sections 19 to 27, Regulation)

This type of lease is required for use of part of the water property in the domain of the State that usually has no facilities or structures, commonly known as a beach.

If a lease allows the lessee to carry on activities for profit, the annual rent is calculated at a rate of 10% of the value registered in the property assessment roll. The minimal annual rent is $250*. Where only non-profit activities are authorized, the annual rent is calculated at a rate of 2% of the value registered in the property assessment roll. The minimum annual rent is $50*.

An area that is leased in this instance is limited to the strict minimum required for beach activities. A lease for use of a beach also does not allow the lessee to restrict the passage on foot of people on the beach. (Civil Code, section 920)

3.  Lease for marina purposes (section 24, Regulation)

Use of water property in the domain of the State for marina purposes implies that private non-profit activities are carried out. The unit rate that is used to calculate the value of the property may not exceed $15.25* per square metre. The minimum annual rent is $250*.

An area that has permanent structures is leased at a rate of 5% of the value of the domain and an area that is used for purposes of a mooring basin and removable structures, at a rate of 2% of its value.

4.  Lease for aquaculture purposes (section 28, Regulation)

A lease for aquaculture purposes is required to operate a fish-breeding plant or to cultivate or harvest aquatic plants in compliance with the Act respecting commercial fisheries and aquaculture. The annual rent is calculated on the basis of $2.50* per hectare during the first five years if facilities are present and on the basis of $0.50* per hectare during the first ten years if no facilities are present. The annual rent payable is $250*. It must be specified that the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation is the only government agency that handles applications filed by aquaculture operators. Upon receipt of a copy of a licence issued by the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation and after verification of any other licence required, a lease project must be drafted detailing the purposes for which a lease is required. The maximum term of a lease is 20 years.

5.  Lease including a promise to sell  (section 29, Regulation)

In the event a sale by the State has been planned, the part of the water property with a promise to sell may be leased but the term of a promise to sell contained in the lease may not exceed 5 years. During the period of the lease, if the riparian land is sold, the buyer may maintain the lease and benefit from the value determined in the promise to sell. He may not, however, benefit from a deduction of the rent that was paid by the previous lessee.

6.  Lease for a regional park (section 30, Regulation)

This type of lease is required to rent part of the water property in the domain of the State for purposes of operating a regional park. The location must be determined by a by-law that was passed by the regional county municipality for the purpose of practising recreational and sporting activities.

2.3.5.  Sale (section 31, Regulation)

Owners of riparian land that has been expanded into a body of water following backfilling work may obtain a clear title for the portion that was backfilled on water property in the domain of the State that they occupy.

Subject to compliance with certain conditions, in particular concerning the legality of backfill work, the Minister of Sustainable Development, Environment, Wildlife and Parks is authorized to transfer parts of the water property in the domain of the State that have been backfilled to the extent of:

The following hyperlink summarizes the main provisions of a sale, more specifically the selling price, administrative fees, obligations of the buyer, rent deductions, an approximate calculation of the selling price, the documents that must be submitted for a purchase application and a mailing address.

The sale to a municipality for the nominal amount of $1 is authorized, provided the municipality agrees, under a resolutory condition, to preserve the premises for public non-profit purposes. Administrative fees in the amount of $500* plus $1* per linear metre of shore apply where the sale is to a municipality.

The boundaries of water property around Lac Saint-François, where water retaining works are very old, is a special case that is determined by means of the mutual transfer of ownership, carried out on either side of an agreed limit. The State is authorized to sell ownership of part the property to an adjacent owner for the nominal sum of $1.

Where this is the case, administrative fees of $250* apply for purposes of agreeing on a boundary, in accordance with this provision of the Regulation.


* All of the amounts, unit rates, minimum rents and administrative fees indicated in this document are those that were in effect on February 27, 2003 and are adjusted on April 1st of each year to take into account fluctuations in the consumer price index.


If you would like to comment on information contained in this document, you can contact the CEHQ by email or by calling 418 521-3866, extension 7150.

 

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