Court rulings don’t support claim of open beaches

Midland Free Press, May 19, 2000. ( this article is a revised and updated version of TINY’S SHORELINE — A LEGAL HISTORY, which appeared in Issue #14 (Spring 1999) of The Tiny Cottager)

Before summer’s hot days arrive, perhaps we should reflect on the “state of the nation” concerning Tiny’s municipally owned shoreline, shoreline policy and other issues that go with many miles of sandy shoreline.

Over the last 70 years, the Ministry of Natural Resources and its predecessors, the Department of Lands and Forests and the Crown Lands Department, one local newspaper and countless ill informed local historians have all fanned the flames with misinformation on the dream world theory that – “if it is sandy beach, it must be public, and if it isn’t, it should be”.

The first major test case of the Crown’s ownership of shoreline property was decided almost thirty years ago. In 1970, Mr. Justice Stark of the Supreme Court of Ontario, held in the trial of Walker et al v. the Attorney General (Ontario) that where one of the boundaries of the land granted by a Crown patent is to be a boundary of water, then that boundary is at the water’s edge unless the grant reserves in clear and definite words a space between the lands granted and the water boundary. Thus, Walker owned his property to the water’s edge of Lake Erie in the Township of Bertie, near Fort Erie.

The Crown appealed to the Court of Appeal for Ontario and lost, then appealed further to the Supreme Court of Canada, again without success. Thus, the trial judgement was affirmed by the Court of Appeal for Ontario in 1972 and by the Supreme Court of Canada in 1974.

The Attorney General’s claim against The Rowntree Beach Association (RBA) and fourteen waterfront owners was a test of the “space” mentioned in the Walker case here claimed to be the space between the “line of wood” and the water’s edge.

In June 1990, the Attorney General for Ontario issued a Statement of Claim and commenced a lawsuit on behalf of the Crown, the Government of Ontario, against RBA; it was a test case. The Crown claimed ownership of a strip of land around the entire perimeter of Tiny Township – a strip of land between the water’s edge and the “line of wood”. Because the property rights of many waterfront owners would have been affected by the decision, the Court ordered that 2000 waterfront property owners be given notice that their property rights could be adversely affected if the Attorney General won the lawsuit.

Documents presented as evidence at the trial showed that MNR had known for over 60 years that the Government of Ontario did not own any land along Tiny’s shore. The issue was created in the late 1980s when MNR staff, knowing that RBA held a registered deed to its beach, disputed the deed, went public and declared that the beach was Crown owned. Very simply, outspoken staff created a problem for its Minister that could only be resolved in court.

Evidence at the trial showed that the Crown had known since the 1930s that it did not own any of the waterfront in the southern part of the province – including the waterfront in Penetanguishene, Midland, Tiny and Tay.

After a five week trial in 1993, on March 15, 1994, the trial judge, Mr. Justice Flinn, dismissed the Crown’s claim against RBA.

During the trial, the patents for all the perimeter lots in Tiny were examined by the Court. The court ruled that when the Crown sold the original township lots around Tiny’s perimeter, all of the township lots were granted or sold by the Crown to the water’s edge. The Court found that when the Crown granted those township lots, except in a limited number of grants, it did not reserve or retain any land or special rights along the water’s edge.

Because the title of the owners at Rowntree had been particularly called into question by the Crown and because they had proved the validity of their titles back to the first Crown grants in 1823, the judge ruled they owned their lands to the water’s edge.

It is significant that within the 30 day period allowed for an appeal, the Attorney General and the Ministry of Natural Resources jointly announced that there would be “No Appeal”. The government press release stated that they could find no grounds for appeal and accepted the trial decision as final.

Since the 1994 decision of the court, there have been rumours – fiction without facts:

• that only RBA is privately owned. That is simply not so. The court found that, with few exceptions, the Crown did not retain any strip of land at the water’s edge at any place in Tiny;
• that the beaches are being “privatized”. In truth, the Crown granted the shore lands into private ownership when the Crown first patented, or granted, the township lots – between 1823 and the late 1800s.
• that there is public access to the shore because of the Gibbs decision in Grand Bend. This is a total misconception. The Gibbs decision was based on a differently worded Crown grant and on different circumstances. The public right is unique and is reserved only in the Canada Company grants.

Most people have seen or heard something about Archie Gibbs and Grand Bend. The press reports about the lawsuit are that the court granted “public access” to the beach owned by Archie Gibbs at Grand Bend. The evidence was that the owners of the Grand Bend beach, Archie Gibbs’ ancestors, had allowed the public to use the beach as though it were public land since the early 1900s. The court decided that the Crown did not have any ownership interest in the land; but the public had established “user rights” over the Grand Bend beach by 1908 or by 1940 at the latest.

Almost three years ago, the Ministry of Natural Resources, without declared reasons, issued an unsigned plain paper press release giving its interpretation of the decision in the Gibbs case. The press release was titled “Public Rights to use Private Beaches for Recreational Purposes”. It stressed “user rights” over private property.

There is nothing new about the law of “user rights”; it was established centuries ago and was the law applied by the judges, on appeal, to the Gibbs land. For example, if someone walks through your property as a short cut to the bus stop continually for years and years and you never stop him, he may be able to prove that he has established a “user right”. He does not acquire that right simply because he wants it. In each case, it is a question to be established in court with the burden of proof resting on the “user”.

A private “user right” comes about as the result of uninterrupted, unchallenged use by a person over another’s land. The claim of a right, a trespass to start with, only becomes a legal right with the declaration of a court on a private claim.

Public “user rights” over private property only become legal rights upon a successful application to the court initiated by the Attorney General.

A frequent claim that the Walker, Gibbs and Rowntree decisions set the precedents for land titles and rights in Tiny township is, and continues to be, without foundation. In summary, all the three cases really did was restate some traditional principles of the common law that neither individuals nor the Crown dispute.

Understanding both the shoreline legal history and the significance of the court decisions is important if the “Beach Issue” is to be amicably resolved and without horrendous legal costs.

Understanding the legal realities of the land law should help put to rest some long-standing myths and replace them with verifiable facts. More importantly, it will provide accurate background information for residents, property owners, visitors and local media regarding the question: “whose land are you standing on?” Only after the boundaries of the municipal lands are known will the municipality be able to plan for its municipally owned shore lands. Until the municipal shore lands identification study has been completed, the Shoreline Parking Management Strategy cannot be further developed nor finalized. If you don’t own it, you cannot plan for it.

via the Tinny Cottager Online