MYTHS AND TRUTHS ABOUT THE SHORELINE
The lawsuit, AG v. RBA, has afforded, for some who want provincial ownership of the shore division and unrest. “Rowntree” is the rallying call to divide. If Rowntree can be isolated, if Rowntree can be blamed for “causing the problem”, if Rowntree is seen as the “bad guy’, then people will want Rowntree to lose. Concentrating on Rowntree keeps the focus off the rest of the shore. If other shoreline owners think the lawsuit is only at Rowntree, they will have no anxiety about their own property and will play into the hands of those who want to make public beaches out of private property.
Approximately 2/3 of Tiny’s residents live in the shoreline areas. For years, back and front lot owners have, together, shared and cared for their beach. If “back cottagers” are turned against “waterfront cottagers” so that they do not unite to protect their beach, who gains, who loses? The “beach issue”, which has nothing to do with municipal politics, was injected into Tiny’s 1991 election in an attempt to divide the electorate of the cottage communities. Stories are still being spread and the frequency will probably escalate in the months ahead. Why? Truth is being hidden in hope of political gain.
What myths have been and are being spread?
Myth 1. “The Beaches of Tiny are part of ‘our’ heritage.” Many years ago, shoreline property owners sold land for cottage development. The beach property was not something separate – it was sold as part of the farmer’s land or the woodlot owner’s land. Is the “heritage myth” a cover story for the reality: public beaches would invite intense back lot development and put big bucks into the pockets of developers?
Myth 2. It has been asked: “If Rowntree “wins” and “makes” the beach private, where will all the people go to put their towel on the sand and to swim; will they be charged to swim; will the front lot owners run their lot lines to the water’s edge?” If the AG “loses”, no one, including Rowntree, “wins” anything. If the AG loses, it would mean that the AG’s attempt to invalidate registered deeds would have failed and existing registered deeds would be upheld. If a “beach block” exists in your area and is owned by your Association for the benefit of your community, that deed will also be upheld. The existing rights of back lot owners would NOT be changed.
In Tiny there is room for both “private” and “public” ownership of beaches. If the AG loses, Tiny will continue to own its waterfront property and it should continue to maintain and develop those beaches for its residents.
What would happen if the AG wins and the Government of Ontario becomes the owner of shorelands in Tiny? The purpose of provincial ownership is to benefit all residents of the province. Wouldn’t Tiny’s beaches be thrown open to the six million people of southern Ontario who live within 90 miles of those beaches?
Myth 3. “The province doesn’t want the beaches turned into a provincial park like Wasaga.” The AG is claiming that almost all of Tiny’s beaches are owned by the Province. If the AG wins, the Government of Ontario (government) will own all the land claimed. To administer this public land as a recreational entity, wouldn’t the Government turn it into a Provincial Park? What else could pubic recreational land be but a Park?
Myth 4. “The Government owns to the High Water Mark.” Wrong. The Court ruled in 1852, and it was reaffirmed by the Supreme Court of Canada in 1974, that High Water Mark only has meaning where there are tides. There are no tides on the Great Lakes. At trial, counsel for the AG and counsel for RBA agreed that High Water Mark was not an issue in the trial.
Myth 5. “The Government owns a 66 foot shoreline allowance around the edge of all lakes in Ontario.” Wrong. There is no 66 foot shoreline allowance along the shore of Tiny Township; however, in some places in Ontario such an allowance does exist. At the trial, government witnesses agreed there was no such shoreline allowance in Tiny Township.
Myth 6. “If the AG (MNR) loses, it would be a huge loss.” It may be a huge loss of what MNR would like to have. But, if the AG loses, it would not be a case of the Government “losing” the land. The court would be saying, in effect, that the Government sold the land many, many, many years ago to the predecessors in title of the current owners.
Myth 7. “Rowntree caused the problem”. Wrong. RBA was sued by the AG. The AG is the Plaintiff, RBA is the Defendant. It is the AG that is claiming that registered deeds and plans of subdivision are invalid.
In September 1988, the Township of Tiny purchased seven (7) acres of land (266′ by 1150′) running along the entire east edge of RBA’s land. The Council announced that the land was to be used for a parking lot and a road. (The land, if cleared of all its trees, could park 1000 cars.) In July, 1989, employees of the Ministry of Natural Resources (MNR) at Midhurst “declared” waterfront land, owned by RBA and held by registered deed, to be Provincial Crown land. Personnel at MNR Midhurst were quoted in the local press inviting the public to use RBA’s land, to bring their picnic hampers, umbrellas and set up for the day. They also announced that RBA’s sign would be taken down. Certain inland residents brought intense public pressure on the former Council for development of washrooms and the parking lot. RBA defended their ownership as reflected in their publicly registered deeds. After creating the problem of ownership, MNR had to go to court to test its theory because only a court can determine ownership. In June 1990, the AG issued a Statement of Claim against RBA.
Myth 8. “The AG could not take the case to court UNTIL RBA proclaimed the land private.” (or Rowntree is trying to “privatize” public beaches.) Wrong. RBA holds registered deeds to the water’s edge and pays property taxes on this land; so did its predecessors for many, many years. It is the AG (on behalf of MNR) that “claims” it is public land. The AG started the court case by issuing a Statement of Claim in an attempt to have those deeds made worthless.
Myth 9. “Rowntree drew the rest of the shore Into the lawsuit”. The AG’s claim of 16 miles of shore drew in the rest of the shore, not RBA. If RBA had not asked the Court to order notification, the case would have proceeded to trial with many, many shoreline owners unaware of the court case and its implications.
The AG started the lawsuit and claimed that the ‘line of the wood’, and not the water’s edge, was the boundary of RBA’s land in Lot 18, Conc. 11, Tiny. The line claimed as a boundary by the AG is 16 miles long. A year had gone by since the Statement of Claim had been served on RBA and yet the AG had done nothing to advise other property owners within the 16 miles of its claim. It was only then that RBA asked the Court to order the AG to advise potential affected property owners of the claim. The Court ordered the AG to send a notice to property owners whose title could be affected by the results of this lawsuit. The notice was sent to property owners from Con. 3 to Con. 18. Once notified, each shoreline owner could decide what he/she wanted to do.
At trial, witnesses called by the AG claimed that the ‘line of the wood’ went around the entire perimeter of Tiny from Conc. 1 to Penetanguishene. Obviously, the shoreline owners in Con. 1 & 2 and Con. 19 through Thunder Bay and around to Penetanguishene did not receive the “Notice” ordered to be sent in the summer of 1991.
Myth 10. “The legal battle is about public access to the sand beach in front of RBA’s members’ cottages.” Wrong. The legal battle is not about “access”, it is about “ownership” – ownership of beach and ownership of the land under the cottages. It is about more than a strip of sand in front of a few cottages. The court recognized the scope of the AG’s claim when it ordered notification be sent to property owners from Conc. 3 to Conc. 18; some 2000 notices were mailed.
Myth 11.”MNR doesn’t want anyone’s cottages or homes.” It may be that MNR is not interested in the “cottages or homes” but they are interested in the land under them. Civil servants have said that MNR is not interested in cottages or homes caught in the ‘line of the wood’. The AG never amended or lessened its claim of ownership to the ‘line of the wood’ at any time before or during the trial. If the Government wins, it would own the western shore of Tiny. If it wins, would the Government give back anything to the cottagers? Who knows. Some things are for sure: (a) Government staff cannot bind a present or future Government; (b) “Fact Sheets” and promises do not bind a present or future Government; (c) a Government acts only through legislation; and (d) a recently leaked Cabinet document states that legislation about Tiny Township Beaches is “not recommended for House consideration”.
Myth 12. “If Rowntree “wins”, waterfront owners will fence their land and no one will be able to walk along the shore?” For many years, RBA and its predecessors have held deeds to beach land; it has never been fenced. Because you own land does not mean that you have to fence it. Usually, fences are an answer to those who abuse private ownership.
Myth 13. “The Government is paying the court costs for the people at Rowntree to protect the sand in front of their cottages.” The lawsuit is about more than the sand in front of a few cottages. The AG stated that it is a “test case” for the Crown’s theory of the ‘line of the wood’. On other occasions, the Government has funded test cases; this case follows the same practice.
Myth 14. “MNR staff and Tiny councillors may be able to answer my questions.” Remember that, if you turn to MNR, you will be seeking advice from the people who are claiming your land and your community beach. Remember that, if you turn to some Tiny Council members for advice, you will be seeking advice from people who want the Government of Ontario to own the shores of Tiny Township.
Myth 15. “I read it in the paper, it must be so.” Since July, 199O, The Observer newspaper and Cottage Life magazine were the only members of the media to request information from the defendants. You should also know that, except for a brief attendance on the opening day of the trial by a Toronto reporter, the media did not attend the trial nor seek information from the defendants (except for the above). Despite what you may have read or heard, there is no timetable for the release of the trial judge’s decision. When it is ready, it will be released.
The way it is. If you are a Tiny Township shoreline cottage owner and you harbour the wish: “I hope Rowntree loses”, remember that if the Court finds that the ‘line of the wood’, and not the water’s edge, is the boundary at Rowntree, the deed/title to your shoreline property may also be adversely affected. Like it or not, the validity of your Tiny waterfront title is tied to the result of the lawsuit at Rowntree Beach because of the claim/theory of the Government which chose to test its claim/theory at Rowntree Beach. The Government could have chosen your property for its test case.