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14 THE RURAL VOICE
2
THE BEACH SAGA - WHO OWNS WHAT?
Some of the most scenic and
valuable land in this province lies
along the shores of the Great Lakes.
In a recent decision in the case of
Gibbs versus The Village of Grand
Bend, the Supreme Court of Ontario
ruled that this land is included in
lakeside grants which now extend to
the water's edge.
Until the Gibbs decision, which is
under appeal by the province to the
Ontario Court of Appeal, the Ministry
of Natural Resources and other
government agencies asserted that the
Lakeshore was owned by the Province
of Ontario or by the public at large, for
whom the province managed the
beaches. Under this claim, private
land ownership stopped short of the
beach and adjacent land owners had
no right to control the use which was
made of the beach by members of the
public.
The Bed
This claim to ownership by the
province has taken different forms.
Initially, the province asserted
ownership on the basis that the beach
was part of the bed of the lake. Under
The Beds of Navigable Waters Act,
ownership of the beds of all navigable
waters in Ontario is vested in the
province. That argument was rejected
by the Supreme Court of Ontario (and
upheld on appeal to the Supreme
Court of Canada) in the 1974 decision
of Walker versus The Attorney
General.
The Walker case dealt with
ownership of beach lands in Bertie
Township, along the shores of Lake
Erie. The province argued
unsuccessfully that the upper limit of
the bed of the lake was the high water
mark, being the line of vegetation
found at the back of the beach. The
court rejected that argument and found
that the bed was the part of the lake
that was always covered by water.
The Bank
The Walker decision was certainly
a set -back to the Crown's contention
that it owned all of the beaches in this
province. Nevertheless, the province
continued to assert that the Walker
decision was very narrowly confined
to a small area along Lake Erie where
the original patents did not contain a
reservation clause reserving the beds
and banks. That clause was found in
deeds covering approximately
1,100,000 acres of land, much of
which was located along the shores of
Lake Huron, Lake Erie, and Lake
Ontario.
In 1981, a lawsuit was started in
Sarnia by Malcolm A. Gibbs to
declare that he was the owner of part
of the beach located in Grand Bend.
Gibbs was able to show clear title to
the property going back to 1836. The
province took the position that Gibbs'
title was subject to their reservation
and that the beaches along Lake
Huron belong to the province.
The original grant from the King of
England to the Canada Company, who
in turn sold to settlers, contained a
reservation clause reserving and
excepting the beds and banks of all
navigable streams, waters and water
courses. Gibbs took the position that
the reservation clause had no
application because old documents
revealed that in negotiating the sale of
the land to the Canada Company, the
King of England had agreed to convey
the beaches.
On December 20, 1989, the second
shoe fell on the province's claim of