Right of Passage along Shoreline

One of Cobourg’s features is that we have a lake – complete with not just one, but two beaches – a large sandy groomed beach and a natural beach – the west beach.  At one end of the west Beach is a natural “park” and the other end is a creek – but oops, you can’t walk to the creek because you cross private property  – and further, that the property owner is insistent that no-one ventures onto their land or even goes into the water which they have title to.  But for those who would like to walk the full length of the West beach, the City of St. Catharines is suggesting that the provincial Government pass legislation that would give everyone the right to walk along the beach up to 10 ft from the water’s edge.

This issue has been around for a while – legislation was first proposed by MPPs as private bills then tabled in 2012 as a bill called “Bill 103 – Great Lakes Shoreline Right of Passage Act, 2012.” but it never got past first reading (Dalton McGuinty was premier at that time).  In 2018, the Town of Fort Erie and the City of St. Catharines wrote to Ford asking that it be passed but nothing happened.  Somehow, it appeared as correspondence to Cobourg at the Council meeting on 16 January 2023.

Summary of Legislation

The Right of Passage Act would:

  1. Ensure that the public has the right to walk along all Great Lake shorelines between the water’s edge and the high water mark,
  2. Require removal by property owners of all fences running vertical to the shoreline distance of no less than 10 feet from the water’s edge and any other obstructions to the public’s right to walk the shore,
  3. Permit public access to the Great Lakes shoreline only via public lands, such as parks, road allowances or easements, and
  4. Prohibit the public from any activity on privately owned waterfront, other than a right to walk along the shoreline.

Action by Cobourg Council

Mayor Cleveland said that several people had asked him for support on the issue and he moved that a letter similar to the one from St. Catharines to be drafted and sent to the premier. Aaron Burchat seconded the motion. Lucas said that all communities along the waterfront are being asked to do the same thing.  He also mentioned that this right has already been granted to indigenous people but all others should also have this right.  Miriam agreed but wanted the letter to copy our MPP, AMO (Association of Municipalities of Ontario) and all the municipalities with frontages onto the Great Lakes.  Her amendment passed as did the full motion.

Note that it’s not known why Bill 103 died.

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Ken
21 January 2023 1:46 pm

FYI….. I have had a look at my neighbours survey, which dates back over 50 years and one can see that some, if not all, lakefront properties in the Pebble Beach area, show the southern property line going out 300 feet into the water….from the high water mark!

Also, my neighbour has told me that back in the 50’s, one could go out front of their property and walk into town along the shore line!…one can only imagine….those were the days!

Bill Thompson
Reply to  Ken
22 January 2023 1:54 pm

Question…..Who owns the water ..lake & harbour no matter the fluctuations in level ?
Maybe that determines who has the ownership rights.
High water level line …federal/provincial ?

Bryan
Reply to  Bill Thompson
22 January 2023 4:59 pm

Bill,

The feds/prov owns the “navigable” waters. The Town owns the harbour basin and according to a “quality” legal opinion, also “owns (controls) the water in the harbour.

The “high water mark” definition seems to make sense. It is the margin or edge of permanent vegetation growth. Supreme Court of Canada: Clarke v City of Edmonton (1929)

“Water’s edge” is also used and also comes from a Supreme Court ruling: AG Ontario v Walker (1975)

The following article by Dr. Brian Ballantyne (Natural Resources Canada) provides a fairly thorough discussion of the issue

https://www.nrcan.gc.ca/sites/nrcan/files/earthsciences/pdf/Water-bounds-monograph-English-web.pdf

Last edited 11 days ago by Bryan
Cobourg taxpayer
21 January 2023 9:43 am

I do not own lakefront property in Cobourg. I do not support the Right of Passage Act. I suspect that most proponents of this do not own lakefront property. The town purchased privately owned lands to build the boardwalk on West Beach except for the land to the south of the school sports field where they went ahead and built the boardwalk anyway and then purchased said property from the school board. Otherwise the town would likely have had to remove the boardwalk when the property sold or pay a fortune to a developer to maintain the boardwalk.

Informed
20 January 2023 8:39 pm

This is a want not a need. I think the Town needs to know the difference. Even if it was a need it must be needed by most, if not all taxpayers that live here. Another time waster.

Last edited 12 days ago by Informed
Marie
20 January 2023 2:32 pm

… when municipal funds are scarce, we now discuss to spend money on lawyers for a case the town lost (at great expense) already once not that long ago. Not sure what is gained by extending the West Beach board walk a few yards to the west and hit Cobourg Creek. What is next – build a bridge across the constantly changing mouth of the creek? If there is no bridge we likely will see more drownings as the often treacherous crossing had taken lives many years ago….
Don’t we have real urgent issues to address?….

Just Wondering
Reply to  Marie
23 January 2023 9:01 am

Am I missing something here? John’s article discusses the town’s intention to write to the provincial government and others to support right of passage legislation. Where is a new lawsuit mentioned?

Pamela Jackson
20 January 2023 11:56 am

If the water level was up to the old jail in the mid-late 1800’s does it not equate that those properties with deeded lot lines to the water level really only own to the same level today and that, in fact, they have illegally appropriated more beachfront than the original documentation allows.

Dave Chomitz
20 January 2023 11:27 am

In 30+ years as a real estate broker the water front lots on the west beach are the only properties I’ve ever seen that grow. The wave action of the lake deposits soil rather than eroding it. My understanding is that at one time the “water line” was about at the foot of Ontario street. Maybe the town can fix a southern boundary and keep the expansion public.

There is public access to the water front on Tremaine Terrace – at both the east end and at the west. Lots run only to the high water mark as it was at time of creation. (However at the west end the town never forced the the developer to install the stairs) – my point is that beach has grown significantly over the last 30 years.

Ken Strauss
Reply to  Dave Chomitz
21 January 2023 9:11 am

Dave, I believe that you are mistaken. My lakeside retaining wall was built about 30-40 years ago and the lake now comes to its base in most years. To the east of downtown there has been significant erosion at the lakeside and consequent loss of property. Could you please provide some evidence for your assertion that lots have grown?

Ms. Jackson, the shoreline in Fleming’s 1846 map of Cobourg looks rather similar to today. What is your evidence that the shoreline was previously up to the jail?

Sandpiper
Reply to  Ken Strauss
22 January 2023 9:30 am

Ms . Jackson is fully aware of this I believe she owned a waterfront home in Grafton shores back in the 90s The Crombie water front trail was applied to her subdivision prior to the Development agreement being approved . How ever a storm or 2 eroded the shore line back into the Water front trail area which I believe was 80 ft from the Toe of the Bluff which was about 10 ft high . when looked into the 80ft mark was a constant so as the Bluff eroded away the 80 ft Trail with came into private lands . This was questioned how ever I never heard the outcome . But there where those private deeds originating from the old days and the Crown that like Kens property extended far out into the lake as we see it today . These are still privately owned
Compensation will be required Not to mention the fact that
Public Liability Insurance is required to protect the Property Owner

Dave Chomitz
Reply to  Ken Strauss
22 January 2023 2:09 pm

Ken – Yes you are correct for Pebble Beach Drive. But the area west of the harbour has been growing every year. Mostly between the pier and the creek. Beyond the creek it diminishes and stops completely before the land rises. I’ve been walking that beach for 50 years with dogs and kids and there is no question it’s significantly bigger over time.

JimT
Reply to  Dave Chomitz
24 January 2023 9:45 pm

You are correct about that.

I remember as far back as the early 50s, when the beach just west of the “west pier” was not nearly as wide as now.

Part of the reason appears to be a gap at the base of the concrete west pier that allowed water to flow between the west beach and the harbour, creating a flow that prevented buildup of sand and stones in that corner.

Last edited 8 days ago by JimT
Marie
Reply to  Dave Chomitz
21 January 2023 9:27 am

… not quite factual. Ask yourself where is the new land coming from?
Well the big storm a few years back robbed several properties to the south of Tremaine terrace of land, in some cases easily approaching 20 feet of a steep sandy cliff. A similar situation occurred in the east off Lakeshore Dr/Rd (and probably elsewhere) and property owners cumulatively spend at least a healthy 6 digit number to stabilize what is left – without help from the public purse – and now the public espouses “right of passage” … Are we turning into a “banana republic”?

These steep shorelines are expensive to protect as the Monks Cove Park shore repair estimate is around the million $ level and in the meantime the town posts DANGER signs to keep the public away from the shore…

Dave Chomitz
Reply to  Marie
22 January 2023 2:11 pm

Marie. I should have been more specific,

I was referring to the waterfront between the harbour and Factory Creek, And then the flat lots across the creek along Tremaine Terrace.  We bought lots on Tremaine Terrace before the road was in, built and lived there for a number of years.   And later lived at the foot of Henry St.   I walked the waterfront  at least 3 times a week with either dogs or kids for over 50 years. There is no question  properties at the bottom Ontario , Bagot and Durham St have gotten  much bigger over time. There are reports I saw years ago that show that.  Also, during the rezoning of Illahee Lodge it was brought up.

Where does the new land come from ? I don’t know. At the same time – why is there only gravel on the west side of the harbour and only sand on the east ? I don’t know that either. But I do know the lake bottom is fluid.

Gerinator
20 January 2023 11:24 am

Though I generally agree that a margin around any body of water should be available to the public I also believe that there is no ‘one size fits all’ rule/law that can achieve this result. So IF legislation is to be effected then it should allow for some flexibility for the Munis and for the home/deed owners to ensure adaption to local situations and fair compensation. I also feel that now is probably a good time to promote any such plan to the Province given Ford is hell bent to promote his vision of land use; to suck up to Mayors and to developers.

Ken
20 January 2023 11:01 am

Do those that have properties on the lake own the ‘timber rights’ and /or ‘mining rights’ on their properties?

Just wondering?

I’ll leave that open for discussion!

Last edited 13 days ago by Ken
Richard
20 January 2023 10:22 am

The real issue here is public versus private property and even public “rights” versus “private” rights.
If you bought property which included land right up to (or even beyond) the high water mark then you own that land and having the Province grant the public a right to “legal” trespass is an infringement of your property rights. It is effectively an expropriation of an owner’s property rights without any compensation and without any assumption of legal liability.
Do we have a different response if the Province grants us free access over all property in Ontario, so that I could walk through someone’s back yard because I wanted to take a shortcut? Perhaps I could take a nice chair and sit in my neighbour’s lovely garden to enjoy the ambience. Why should a shore front be treated any differently than a back yard?
If one starts with Lake Ontario, does/should/will the same apply to Lake Simcoe? or Rice Lake? Why not the Cobourg Creek?
We need to have some serious thinking and discussion before we start down the slippery slope of taking away people’s property rights. When we get used to that concept being okay the next right on the table might be the right to free speech, to protest, to complain – and then where would we be.

Old Sailor
20 January 2023 10:10 am

In my view, this idea of giving the use of privately owned land back to the public, is even left of anything the Federal Liberals and NDP would dream of. Make the Great Lakes shorelines all public, then go for the shorelines of all the lakes with seasonal and year round residents and businesses – like Rice Lake. Punish taxpayers who purchased and are taxed on their surveyed waterfront lots. Then go for the 10 feet beside the sidewalks in residential areas – like in Cobourg. Once you have exhausted all of the possible 10 foot rules go for all land being public. Perhaps this would solve the homeless problem. No one would own a home. God save us all from this avalanche of activist Doinks. People who want total control of everything with no investment.

Doug
20 January 2023 9:48 am

A fabulous option related to all of this would be to preserve a natural area along the Lake Ontario waterfront from Cobourg to Port Hope. Build a nice walking path and we’d soon have a very popular place to go. I believe there is one house near the middle of that strip. The path could loop around that property and back down to the lakefront. A Beautiful Natural Place !
Anyone want to join a group to make this happen ? We might need an Axe and a Saw !
Calling Willow Beach Club !

Frank
Reply to  Doug
20 January 2023 10:35 am

This has been proposed more than once in the past.

Leslie
20 January 2023 9:13 am

One of the problems here is that there is no legal (I emphasize “legal”) definition of “high water mark”. There are definitions out there, but they vary. It could be a one time all-time high level, it could be a high long-sustained level, and there are other definitions. I think that Council is opening itself on up to some legal battles, and I entirely agree with Ken’s comments as well.

Lemon Cake
20 January 2023 8:29 am

I think right of passage is a great idea and I’d love to see it. The property John mention here, however, is a unique case – they own the beach right up to the water line and it’s been granted by a deed that goes back 200 years I believe. The town was not successful in court with the property owner who was fully within their right to defend the deed. I’m not sure if this new right of passage act would cover this particular case. But I lived in the UK for many years and, thanks to strict right of passage laws, I walked hundreds of miles through pristine fields, forests and villages without ever seeing a major motorway. Would be great to have that here.

Ken Strauss
Reply to  Lemon Cake
20 January 2023 9:58 am

Actually, LemonCake, all of the properties along the lakefront to the west of downtown have deeded exclusive rights to the water’s edge. There are also deeded “water lots” that extend into the lake. I believe that the rights were granted by the Prince of Wales during his visit to Cobourg in 1860. A few properties such as the Cedar Shores development have since relinquished their rights to the town for various concessions.

Lemon Cake
Reply to  Ken Strauss
20 January 2023 10:02 am

I think (but am not 100% sure) that at least 2 of the houses traded their deeded rights for the town’s permission to rebuild on waterfront land (for example, the homes at the bottom of Cedermere Ave). So this could be the future as people repurchase these home and want to rebuild larger or more energy efficient structures.

Ken Strauss
19 January 2023 4:08 pm

Not mentioned is that under the proposed “right of passage” bill the lakefront property owner would continue to be liable for any injuries sustained by those passing, would continue to be taxed as a lakefront property owner, would have to maintain their lakefront area and have no way to control the dalliance of those passing. Further, many property owners have buildings, boat ramps, decks, patios and other obstructions very near to the lake which would have to be removed. Essentially this bill demands confiscation of deeded rights without compensation.

There are other issues for agricultural users. For example with a prohibition of any obstructions at the shoreline how can cattle/sheep be prevented from roaming off of a farmer’s property?

Kevin
Reply to  Ken Strauss
20 January 2023 8:16 am

Good point about livestock. A fence could be built but that may result in no water for the animals. I have not looked at the letter from St. Catherine’s but perhaps it is too broad. Maybe it should only include shoreline within cities/town such as the situation in Cobourg described in the post by JD. We do not have a problem with these type of farm animals within the limits of the town of Cobourg.

Rob
Reply to  Ken Strauss
20 January 2023 8:24 am

Great legislation and about time! Scotland has the right approach, where citizens are free to roam on all land, close the gate behind you.

Kathleen
Reply to  Ken Strauss
20 January 2023 9:16 am

“property owner would continue to be liable for any injuries sustained by those passing, would continue to be taxed as a lakefront property owner, would have to maintain their lakefront area and have no way to control the dalliance of those passing.”….Not much different than homeowners who must clear their sidewalks and maintain the boulevard. If someone’s dog say digs up any flowers on a boulevard, the homeowner can’t do anything about it.

Costa Rica has very extensive laws for homebuyers who purchase ocean front property. For the most part, Government owns approx the first 600 feet from high tide marker and that is considered a ‘public zone’. Their are a few caveats but honestly, I thought it was the same here until I read J.D.’s blog.

Ken Strauss
Reply to  Kathleen
20 January 2023 10:16 am

There are several fundamental differences, Kathleen.

The situation in Costa Rica or Scotland or wherever is irrelevant; we live in Cobourg. Here the waterfront is exclusively part of the adjacent property in the western end of our town. What is owned should be defined by the deed rather than by a desire for what is not theirs. I suspect that most would object to everyone having access to everyone else’s backyards so why is the waterfront different?The sidewalk is owned by the town and the town is liable for injuries such as those from tripping on a broken sidewalk.Of course the adjacent homeowner cannot do anything about damaged flowers on the boulevard. They do not own the boulevard!

Last edited 13 days ago by Ken Strauss
Bryan
Reply to  Kathleen
20 January 2023 10:35 am

Kathleen,

You wrote: “…Not much different than homeowners who must clear their sidewalks and maintain the boulevard. If someone’s dog say digs up any flowers on a boulevard, the homeowner can’t do anything about it….”

In both cases the homeowner dies not own the property, the Town does. Some residents do a good job clearing sidewalk snow, some don’t, including the Town. I believe boulevard maintenance is limited to cutting the grass. Anything beyond that is the Town’s responsibility.

Your Costa Rica example is interesting but not particularly relevant. They have their laws, as does Scotland and England. We have ours. As Ken noted, some of these waterfront deeds go back to the 1800s. Others have noted that attempts by various levels of government to “legally steal” waterfront land has been thwarted by the courts who upheld the primacy of the land owners’ claims.

Lemon Cake
Reply to  Ken Strauss
20 January 2023 9:51 am

Overturning the type of deed held by the resident at the end of the boardwalk would be a big deal – it would mean the province is overturning rule of law, which isn’t a good look for an “open for business” government. However, this issue could be very divisive politically. Maintaining the fence line at the end of the boardwalk based on an obscure, old deed isn’t going to play well to Ford’s base.

Ken Strauss
Reply to  Lemon Cake
20 January 2023 10:58 am

Maintaining the fence line at the end of the boardwalk based on an obscure, old deed isn’t going to play well to Ford’s base.

Please elaborate on what you mean by this. When I purchased my place I didn’t realize that I was paying for something defined by “an obscure old deed” that could be confiscated on a whim.

Lemon Cake
Reply to  Ken Strauss
20 January 2023 6:04 pm

Sorry for not being clear – I was trying to make the point that the deed should be honoured and to show how honouring it could be construed as a divisive issue with voters. I did not mean to imply I think the deed is obscure. I believe the owner of one particular property who had to go court was badly and unfairly mischaracterized by some in the town and this kind of thing should be avoided at all costs.

Ahewson
Reply to  Ken Strauss
21 January 2023 3:12 pm

Ken, you are not entirely correct in stating that only the town is liable for sidewalk incidents. If an adjacent property does not provide winter maintenance to the sidewalk, they are the ones liable. That is why the town only plows sidewalks town owned property.

Ken Strauss
Reply to  Ahewson
21 January 2023 3:38 pm

Ahewson, I never said that the town is liable for all sidewalk incidents.

I wrote: “…the town is liable for injuries such as those from tripping on a broken sidewalk”.

I suspect that the town only plows sidewalks of town owned property as a cost saving measure (Why pay to do what residents can be forced to do for free?) rather than for liability reasons.

Last edited 12 days ago by Ken Strauss
Ahewson
Reply to  Ken Strauss
21 January 2023 3:50 pm

I looked into this a little more. So it is my understanding that the town can fine property owners for not doing proper maintenance, but the issue of liability is indeed likely, but not always, on the town. It is all a very slippery slope, pun intended.

If anyone has anymore knowledge on this, please chime in!

Last edited 12 days ago by Ahewson
Ken Strauss
Reply to  Ahewson
21 January 2023 4:23 pm

There is also the aspect of “joint and several liability”. (See https://www.otla.com/index.cfm?pg=JointandSeveralLiability#:~:text=If%20one%20of%20the%20wrongdoers,the%20plaintiff%20for%20the%20loss for a little explanation.)

My understanding is that since the town has far more money than I they get stuck with paying the bill even if the injury is mostly my fault.

Shawn
19 January 2023 2:01 pm

Are there any restrictions to crossing the waterfront area to the east, from the beach to the stairs near Willmott St?

Nancy
Reply to  Shawn
20 January 2023 8:21 am

Not that I’m aware of. I have lived in the east end down by the lake for 30 years and people just seem to freely walk along the shore without any issues.

Bryan
Reply to  Nancy
20 January 2023 10:44 am

Nancy,
People do walk along that shoreline “freely” largely because of the passive permission of the owners. It seems the owners don’t object, likely because the number of walkers is few, no harm is done to the property and the owners are not inconvenienced.

Kevin
Reply to  Shawn
20 January 2023 8:26 am

Interesting question. I have canoed south of your suggested route (out on the lake). Parts of the shoreline have cliffs. Passing on top of the cliffs would be easier. Below the cliffs and you might have to swim (not sure how deep the water is at the base). Some properties have lawns to the top edge of the cliffs so owners may not be happy. In the Transportation Master Plan, prepared by consultants, there is mention of a boardwalk, or some kind of public path, along this route. It would be a great feature for some. I think this is much more of a dream than a real possibility. Having a public path on Lakeshore would be possible and it is part of the Waterfront Trail.

ben
Reply to  Kevin
20 January 2023 4:00 pm

Actually Kevin when the developers of the Fitzhugh subdivision came to Council the first draft of the plan deeded the shoreline to the Town, the second draft took it back after they realised how much they could make on waterfront lots. Didn’t do them any good though they went bust because they had underestimated the depth of the bedrock for the services!

Ahewson
Reply to  ben
21 January 2023 3:22 pm

Fairly recent gaffe by the town to allow that land to slip out of public hands. If we could do it all over again, Lakeshore Road/Fitzhugh would likely be similar to Lucas Point Park for their entirety. On the western side of town, Tremaine Terrace should have been an extension of Peace Park. Almost wonder the longevity of Tremaine Terrace in general. It is being eroded from both sides. Was a mistake to develop that land in the first place.

Look at Ajax if you want to see a properly developed public waterfront. A lot of foresight went into that.