This case was heard in the Nova Scotia Court of Appeal.
The Corkums were property owners with land on the south side of Glace Bay Harbour. Between 1987 and 1989, the Nashes, along with another party, engaged in construction activities to improve the wharves along part of the shoreline that the Corkums claimed as their property. The Nashes were fishermen who claimed to have been using the shoreline for years with the Corkums’ permission.
When the Corkums sought an injunction that would bar the Nashes from carrying out any further construction in the area, the Nashes argued that the Corkums could not claim riparian rights to the shoreline because Nova Scotia’s Water Act had vested the rights to watercourses, along with the beds and shorelines of those watercourses, in the Province rather than in private property owners.
After considering the relevant law, the Court held that the body of water in question was a “harbour,” and, as such, was not a “watercourse.” As a result, it held that private property owners like the Corkums could claim riparian rights to the harbours on their properties, and could prevent others from barring access to the water.
Rather than ordering the injunction that the Corkums had sought, the Court suggested that the parties should come together to reach a settlement. It added, however, that if the parties could not find a solution within six months, the Corkums could return to request an injunction.
After the parties were unable to reach a settlement themselves, the Corkums returned to the Court to request an injunction. In keeping with the earlier decision, the Court ordered that the Nashes must stop their construction activities, remove their boats and equipment, and cease using the wharves to moor their boats and store their equipment.
When the Nashes appealed to the Nova Scotia Court of Appeal, the Court held that the lower court had not made any errors of fact or law. The appeal was therefore dismissed.
To read about this case in the Supreme Court of Nova Scotia, go to Corkum v Nash, 1990 CanLII 4127 (NS SC) and Corkum v. Nash, 1990 CanLII 4135 (NS SC).