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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 While deputy mayor Elizabeth Davis- Dagg initially said they could send a let- ter of support to the feds, she later rescinded that motion and it was decided to invite Walden to a Harbour Committee meeting.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