By Jack Ellis
Since the early 1990s and the Attorney GeneralÕs lawsuit over the Tiny shoreline, it has been widely recognised that land ownership and records all along the shore are a dogÕs breakfast, a nightmare of confusion. Over 100 shoreline subdivisions and tens of thousands of individual land transactions have been registered from the 1800s to the present day. The problem is, there is a huge variation in what rights to the beach and shore were conveyed in these transactions.
It was also known that these uncertainties affect municipal lands in the shoreline area. The 1991/92 Park Master Plan effort floundered when it came to positively identifying municipal parks, access ways and beaches. What was not known before the Lambden study was just how widespread and serious the problem is.
In early 1999, Township Council decided it was time to settle the facts about what lands it owned on the shore. It asked David Lambden, OLS, CLS, to provide expert opinion as to the nature and extent of all municipally owned shoreline lands along the perimeter of Tiny Township. By the end of January 1999, agreement to proceed had been reached, and Prof. Lambden set to work.
Who is David Lambden?
David Lambden is far from your usual rugged surveyor trudging around the countryside with a tripod and pole, pounding in stakes. In his present vocation, David Lambden is a spry and distinguished looking 71 year old Professor Emeritus of Surveying, University of Toronto, who conducts an active consulting practice in land management in his retirement. While he occasionally does surveying on the ground, most of his consulting work consists of giving expert advice on where boundaries lie, and on the provisions of boundary law.
A graduate of the University of New Brunswick, he did postgraduate study in Australia and England. His early career in Canada led him from private practice to government, attaining highly responsible positions as a Deputy Master of Titles of Ontario and the first appointed Examiner of Surveys, Land Titles. He wrote the Code of Standards and Procedures for Surveys and Plans, Regulations under the Land Titles Act of Ontario, 1958, and the Boundaries Act, S.O.1959. Not bad for someone then under the tender age of thirty.
In the 1960s and early 1970s, Prof. Lambden was to be found in Australia, New Zealand and the U.S.A. Down under, he consulted and taught at the University of New South Wales, concentrating on land management and information systems. In the U.S., he taught at the University of California.
Back in Canada in the mid-1970s, he became Professor of Surveying at the University of Toronto and conducted an active consulting practice. One of his consulting activities was as a founding director of the private company that partnered with the Ontario government to create Teranet Land Information Systems Inc. This major enterprise is now implementing the billion dollar computerised land titles system that will eventually replace our antiquated land registry system.
He is widely acknowledged as one of the worldÕs top experts on boundary definition, especially where water boundaries are involved. His numerous writings are standard references in the field, as is his book, Boundaries and Surveys (with I. De Rijcke). Prof. Lambden has been retained as an expert witness in landmark legal actions, many involving substantial Indian land claims. The best known cases in which he has testified are those of Gibbs v. Grand Bend and Attorney General for Ontario in 1989, appealed in part in 1995, and the Attorney General for Ontario v. Rowntree Beach Association in 1994, which established that most Crown patents in Tiny extended to the waterÕs edge.
Tiny is thus immensely fortunate to have the services of such an eminent and knowledgeable expert, who also has a huge head start of familiarity with the legal intricacies of land on our shoreline. He operates his consulting practice at fees that are surprisingly moderate for an expert at his level, charging per diem rates comparable to junior professional engineers. He has the luxury of choosing his consulting assignments according to their inherent interest and challenge, not the bucks involved.
What Has Prof. Lambden Found So Far?
Prof. Lambden made interim reports to Council on May 17, 1999, and December 13, 1999. The latter report was a written one, and was augmented from the tape of the meeting and Prof. Lambden's response to various questions raised. The final version, dated February 19, 2000, is available from the Tiny Township website, www.township.tiny.on.ca. It makes great reading, especially where his acerbic wit comes out. Reading between the lines, one can see various difficulties he encountered because of the changes at the top level of Township staff and some maddeningly inaccurate reports in the local press!
Prof. Lambden pointed out that creating a Register of Municipal Lands, with reliable maps, is a basic component of the proper management of public affairs, as well as being a statutory requirement under the Municipal Act. Without the facts such a Register would contain, disputes over land will never end and hysteria rather than reason will dominate.
In Tiny, the normal practice of deriving a register identifying municipal lands from Registered Plans does not work. Why? Because the Township itself has not taken proper actions to receive lands or to register their title properly, and this has gone on for over 100 years! In the Registry Office, many of the Abstract Books have no entry for municipal rights on the (supposedly) dedicated streets and lanes, only grants of private rights-of-way. Many plans before the 1940s even lacked Municipal approval, and no roads or beach areas were dedicated at all. Without municipal approval of the Registered Plan, including specific dedication of roads and other public lands, without deeds of transfer, these strips are held in private title. The question is, who has title?
The Township has de facto ownership of most of its roads, because they have been used for years by the public and maintained by the Township. But for a municipality to acquire the legal title, it must also pass a Bylaw accepting the lands and dedicating them to their intended purpose, as roads or open space for example. The Bylaw must then be registered in the Registry Office so that all and sundry are aware of what the municipality now owns. A Municipal Lands Registry must also be available in the municipal offices for all to conveniently access on a day-to-day basis.
These steps are standard practice for municipalities in Ontario, as well as being standard legal requirements. But for decade after decade, Tiny failed to do these things! Who in their right mind would acquire a property without getting a proper deed and seeing that it was properly filed in the Registry Office? Well, Tiny did!
In Tiny, the problem of public ownership of beaches was massively confused for decades by the provincial government, who wrongly claimed (against the advice of many of their own in-house experts) that the beaches were Crown Land. Successive Councils likely wondered why the municipality should assume the legal costs of filing Bylaws on beach lands that they were told were the public property of the Crown in right of Ontario.
Implications of the Problem on the Ground
Some examples of the problems on the ground illustrate the urgent need to clear up this mess once and for all.
In the Balm Beach area, most of the roadways and laneways were never deeded to the municipality. The normal and correct legal process was not followed. Bylaws were not passed and filed. Thus the municipality, technically, has uncertain title interest in them. Remember, these lanes and roadways provide the access to the beach. Some walkways on the plans do not exist on the ground, and some walkways on the ground are not located where the documents say they should be. What if a road or walkway is discovered later to run through someoneÕs yard?
In the D'Aoust Bay area, the question arose of where the boundaries of properties lie, some private and some municipal. The boundary needed to be clarified because accretions and low water levels have moved the shoreline outwards. Where is the public access and the dividing line on this additional land? Prof. Lambden attended on site in July 1999 with adjacent owners, some Council members and staff, and made recommendations on the process to be followed on the basis of his expert knowledge and painstakingly detailed study. Although no reporter was present, it was only shortly after that a local paper told a garbled tale of the meeting. Such events are no help to this complex project.
The efforts of Teranet to map properties and institute a modern land titles system have been completed in some parts of Ontario. It is a major improvement, leading to cost savings in land transactions and improved security of title for owners and vendors alike. But Teranet has set Tiny and its problems aside for the present, until the lands problems, especially along the shore, are resolved. While others can already benefit, we in Tiny cannot.
How Can the Mess Be Fixed?
Much of the necessary research work is now complete. Prof. Lambden is preparing both a proper Registry of Municipal Lands and a set of retroactive Bylaws to identify the municipal lands on the shore and to ensure that the TownshipÕs legal title to them is in place.
The work has been both complex and immensely detailed. Fortunately, Prof. Lambden is the type of professional who revels in such tasks, as well as being absolutely the most competent person to do them. Efforts were slowed initially because the Township lacked a CAO/Clerk for much of the time. Prof. Lambden now reports to a newly created Lands Committee, which includes the new CAO/Clerk, the Planner and legal counsel for land law.
Prof. Lambden has advised Council not to reveal findings piecemeal or prematurely, since this could lead to confusion and misunderstanding. Accurate descriptions of areas of public and private rights, and the access ways, are the foundation for applying the Zoning Bylaw that must follow the recently-adopted Official Plan. His findings are now being reviewed by legal counsel and the Lands Committee. They will be presented as soon as these confirming steps are complete.
As noted, the problems are massive, but there is no alternative to fixing them, and this must be done properly or it is not worth doing! It is also a legal requirement that the Township must meet. Maybe the only clouds on the horizon are the possibility that either an unwise Council will stop the project before it is complete or that Prof. Lambden might resign from the job.
Prof. Lambden has emphasised from the outset that neither the time nor the cost of the whole project can be estimated in advance. This project is essentially an open ended one. It is not like turning over the rock and getting rid of the beetles and worms; here there is always another rock, and then another, always surprises. Concern over costs is appropriate on the part of public representatives, and no one knows this better than Prof. Lambden. He is used to giving full value for complex services, the extent of which cannot always be determined in advance. Council needs to realise that the problem is historically theirs to deal with, and so long as it is unresolved, presents a constant but hidden cost burden to all residents of the Township.
Let us hope that all members of this Council, and the next Council, maintain the conditions necessary to let Prof. Lambden finish this job properly and expeditiously. Without the interest and support of a knowledgeable Council the project will quickly lose its appeal, and costs would really skyrocket.
The future of Tiny Township's public lands depends on it!