Tiny's Shoreline - a Legal History

Copyright (c) The Federation of Tiny Township Shoreline Associations

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 45 miles of sandy shoreline.

Over the last 70 years, the Ministry of Natural Resources and its predecessor, the Department of Lands and Forests, one local newspaper and countless ill informed local historians have all fanned the flames with misinformation based on the 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, the trial judge, Mr. Justice Stark of the Supreme Court of Ontario, held in the case 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, by description or otherwise, a space between the lands granted and the water boundary. Thus, Walker owned to the water's edge (Lake Erie) his property in the Township of Bertie (Fort Erie).

The Crown appealed, without success, to the Court of Appeal for Ontario. The Crown further appealed to the Supreme Court of Canada, again without success. Thus, the trial judgment 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 and fourteen waterfront owners (RBA) was a test of the space mentioned in the Walker case ("the space" was 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 45 mile 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 could 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 at least 50-60 years that the Government of Ontario did not own any land along Tiny's shore. MNR created a problem when, in the late 1980s, its employees, knowing that RBA held a registered deed to its beach for 60 years, "went public" and "declared" that the beach was Crown owned. MNR 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 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 sold those township lots, it did not reserve or retain any land 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 early 1800s, 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 - not based on fact:

--that only RBA is "privately" owned - that is simply not so. The court found that the Crown did not retain any strip of land at the water's edge at any place in Tiny.

--that the beaches are being "privitized" -in truth, the Crown sold the shore lands into private ownership when the Crown first patented, or sold, 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 - false. The Gibbs decision was based on a differently worded Crown patent/grant and on different circumstances.

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, always stirring the pot, 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. For example, if you allow someone to walk through your property as a short cut to the bus stop and he does it 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".

"User rights" (private) come about as the result of uninterrupted, unchallenged use by a person of another's land. The "right" only becomes legal with the declaration of a court. "User rights" (public) over private property only become legal upon a successful application to the court initiated by the Attorney General.

Understanding both the shoreline legal history and the significance of the court decision regarding beach ownership in Tiny Township is important. It 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 current 'Shoreline Parking Management Strategy'. This plan is presently under development by Tiny Council and will apply exclusively to municipally owned shore lands. When the survey determining the boundaries of these properties is complete and the plan approved, in a very real sense, everyone will know where he or she stands.