Mackenzie v. Harken Towing Co. Ltd.: A Landmark Decision on Riparian Rights

The courts infrequently address the creation and modification of riparian rights in British Columbia. Recently, the Supreme Court of British Columbia issued its decision in Mackenzie v. Harken Towing Co. Ltd., 2025 BCSC 2493. The decision is important to the profession because Justice Giaschi’s reasons present a contemporary and thorough doctrinal summary of the law, based on a simple set of facts, much of which was uncontested. The case represents a nice “textbook” for riparian rights in Canada. Ascendion Law was counsel for the successful plaintiffs in this case.

Background of the Case

The dispute arose over the riparian rights of the Mackenzies, owners of a property that has been in their family since 1949. ​ The property borders the Pitt River and has historically been riparian in nature. ​ The family historically operated a tugging company along three contiguous properties along the Pitt River, of which the plaintiff’s property occupied the middle.  The second generation of Harken Towing’s founder who owned and occupied the middle property, and critically no longer was associated with the company, sought to evict Harken Towing from their waterfront, or at least claim riparian rights of access to the Pitt RIver. Naturally, Harken Towing sought to oppose the claim, having occupied the waterfront since 1949.

Harken Towing argued that the construction of a retaining wall and the infilling of the foreshore in the 1950s severed the property’s connection to the water, thereby extinguishing its riparian rights. ​ It claimed that the plaintiff’s property was “landlocked” due to the fill placed “between” the plaintiff’s property and the waterfront. 

The plaintiffs sought a declaration that their property remained riparian and that the defendants’ actions constituted an interference with their riparian rights. ​ They also sought an order for the removal of a wall that Harken Towing had built in front of the plaintiff’s property effectively blocking their access and obstructing their view of the waterfront. Indeed, one of the plaintiffs testified that a large and highly visible “No Trespassing” sign was their view when they looked out their back window in the direction of the water.

Findings

The court emphasized that riparian rights arise from the ownership of land adjoining a water body. ​ Citing Southern Nigeria v. John Holt & Co. and Attorney-General of Canada v. Higbie, Justice Giaschi held that human intervention, such as the construction of retaining walls or infilling, does not extinguish riparian rights or alter property boundaries. ​ The court rejected the defendants’ argument that the property had ceased to be riparian due to the physical changes to the foreshore. ​

The court found that the barricade and no trespassing signs erected by Harken Towing constituted a clear interference with the plaintiffs’ riparian rights, preventing them from accessing the foreshore and waters of the Pitt River. ​

Legal Significance

In the last decade, cases involving riparian rights in British Columbia, and indeed Canada, have often involved one of: the intersection of riparian rights and Aboriginal rights and title and the interference with riparian rights between private owners. However, it has been some decades that the courts have been asked to consider the alleged extinguishment of riparian rights due physical changes to the land. In this case, and material to the law, the change in the physical characteristics of the land was not due to accretion, but was by human intervention.

We were proud to represent the successful plaintiffs in this case.

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