HomeMy WebLinkAboutLakeshore Advance, 2013-06-26, Page 22 Lakeshore Advance • Wednesday, June, 26, 2013
Land title in dispute, Gibbs would like to transfer title
CONTINUED FROM > PAGE 1
Grand Bend derived its name from a
hairpin turn in the Ausable (Aux Sables)
River, a short distance inland from Lake
I luron, where sand dunes blocked the
river's outlet to the lake. Frequent flood-
ing hampered farming in the region;
nevertheless, a small milling commu-
nity developed at "'Ihe Grand Bend" in
the 1830s. In response to a local peti-
tion, the township cut anew riverbed
directly to the lake along an old portage
route in 1892. This improved drainage
in surrounding farmlands and provided
access to the Lake Huron fishery. In
subsequent years, the sand dunes
attracted summer vacationers to Grand
Bend and made the village a popular
sumtner resort.
Me issue at hand today is the owner-
ship, operation and management of the
Grand Bend harbour. Gibbs met with
council in 2011 to open discussions
concerning this matter. Before the cut
was created at the hairpin turn and
before the harbour was constructed in
1897- the land, (as is seen on the 1853
survey), on the south side where the art
galleries and restaurant are, was origi-
nally the Stephen Drain. The deed to
the lands that include where the pier is
and the launch ramp were titled to the
Gibbs family.
Since that 2011 meeting with Gibbs
and the municipality, the federal gov-
ernment has been disposing of owner-
ship of a number of small inland great
lakes harbours including Port Burwell
and Port Stanley.
Walden explained there are two
options -one where the municipality
can own the harbour as an asset in the
sante way they own arenas and roads
and the second to have the municipal-
ity support their cause with the federal
government to get compensation for
the Gibbs' ownership of the lands in
exchange for the transfer of title of the
lands beginning north of the pier, the
mouth of the harbour and land
upstream from the mouth of the har-
bour, lying north of the original drain.
Walden also said he has been made
aware there are possibly three sources
of funding from the senior levels of gov-
ernment providing the necessary cash
to accomplish this objective.
While deputy mayor Elizabeth Davis-
Dagg initially said they could send a let-
ter of support to the feds, she later
rescinded that motion and it was
decided to invite Walden to a Harbour
Committee meeting.
In a letter from solicitor Philip Wal-
den, he explained to council that since
the very low water levels of Lake Huron
and the need for upgrading and main-
taining of the Grand Bend pier and har-
bour, (In the early 2000s the Feds
offered to hand over the pier to I,amb-
ton Shores, but they were not willing to
repair it first, so those plans did not
materialize) it was felt that these events
have created a perfect time for all par-
ties to resolve their objectives.
"I am sure the municipality is under
pressure from the Grand Bend boating
community and commercial fishermen
together with residents and business
owners of Grand Bend in order to cor-
rect the physical condition of the har-
bour which is such a major asset to the
district," explained Walden in his letter.
MPP Monte McNaughton has also
been addressing this issue at the pro-
vincial level in hopes of opening dia-
logue with the province to settle the
involvement with these questions. In a
letter to Attorney General John Gerret-
sen, McNaughton explained there is a
long-standing legal dispute between
the province and Gibbs concerning the
property title. He explained to Gerret-
sen that the harbour lands owned by
Gibbs were transferred from the Ontario
Crown to the Crown of Canada in 1940,
which allowed the federal government
to construct the north break -wall of the
artificial outflow of the Ausable River.
The issue here is that the province
transferred land that was not theirs to
give. McNaughton continues by
explaining the complication arises
because the need to upgrade harbour
facilities for the tourism and the Crown
wants to transfer ownership to Lamb -
ton Shores so they can control their
own project but the Crown is unwilling
to make such a transfer when the title is
in dispute.
LOOKING BACK
May 15, 1836 the Canada Company
was issued one patent for all of Bosan-
quet Township, as it existed then.
Bosanquet's northern limit at the time
was Main Street, Grand Bend, causing
the Canada Company patent to include
Gibbs' beach.
The land battles with Gibbs family
The pier being built in 1905 atter the harbour was created in 1897,
began in the late 1970s. There was a trip to the
council of the day in 1979 and then the court bat-
tles began in 1988.
In the early 1980s, M. A. (Archie) Gibbs and
Gibbs Company sued the Province of Ontario and
the Village of Grand Bend, claiming Gibbs owned
the beach south of Main Street at Grand Bend and
also claitning datnages. The Province and the Vil-
lage counter -sued, asserting that the Crown owned
the beach or, alternatively, that the public had the
right (called in law a prescriptive right) to continue
using the beach for recreational purposes, as it
had since the 1870s.
•
For most of this century, the Ministry of Natural
Resources and its predecessor, the Department of
Lands and Forests, contended that the beach
south of Main Street at Grand Bend was owned by
the Crown, because of its interpretation of the
original Crown grant..
After a 76 -day trial in the Supreme Court of
Ontario in 1989, Mr. Justice W. D. Chilcott ruled
that: Gibbs owned the beach and the Crown had
failed to establish a prescriptive right of any kind
for the public to use the beach. Gibbs was awarded
damages and costs for the "loss of revenue and
profits" in the.beach from March 30, 1979, when
Gibbs asserted ownership, to the date of judg-
ment. The Ontario Government and the Village of
Grand Bend appealed this decision.
Images of Yesteryear LAM
In 1995, in a majority decision, the Ontario
Court of Appeal upheld the ruling that Gibbs
owned the beach. I lowever, the Court of Appeal
ruled the public had obtained a right by long
usage to continue using the beach for recrea-
tional purposes and that the uses that could be
made of the beach by Mr. Gibbs and any other
owner were limited to public uses.
The Court of Appeal said the Gibbs and his
company alight be entitled to damages and
referred that question back to the trial judge.
Gibbs' costs at trial were also referred back to
the trial judge to determine, after the determi-
nation of damages.
'the court determined. (Ibbs was to pay the
costs of the appeal. Negotiations to resolve the
issues of costs and damages were not success •
ful. The parties agreed to refer the issues to non-
binding mediation. After mediation, a proposed
settlement was reached on May 6, 1997. 'Ibis tie
Clement results in a fair settlement and public,
ownership Of the beach. The settlement was
implemented on November 6, 1997.
Under the agreement, the peach became the
property of the Village of (rand Bend and was
be named "Gibbs Beach" in recognition or the
Gibbs family's historic ownership and Gibbs
received a financial settlement.
Grandview A
artments
NOW RENTING IN GRAND BEND
49 units includes 5 appliances & balcony. Common room with kitchen facilities available,
FOR MORE INFORMATION 519-237-3647
r S•.
IMS' to 1X t*.k . it.. •
1" '4 W !1M 1r 41