Constance Bay Beach Privatization

The following is my view on the history of the Lanes Street beach issue. I was planning to put it out for discussion on the web at www.PerspectiveOttawa.com but held off on it. My intention is to provide as unbiased a picture as I can, with links to backup material and allow YOU to review the issue.

The issue I refer to relates to the ownership of several properties in Constance Bay and exactly how far the ownership of the 'Beach' extends. I will preface this by saying the issue has simmered for decades and in my opinion, should have been put to bed in May of this year. There is a potential for a follow-up activity but it doesn't require the 'churn' which has been ongoing since May.

October 14 Positions

The following link will give the current position on the issue from the three candidates as asked by the West Carleton Review. Link will be enabled when I get e electronic copy of the paper.

Background

In early May this year, the City of Ottawa delivered a legal opinion with regard to the ownership of several beach front properties on Lane St. in the Bay. A meeting was held on May 29, 2010 which included a number of city staff including several city legal staff, Mr. El-Chantiry, representative of the Police Services and others to explain the issue. Not necessarily the most proactive of timing as one long weekend elapsed, but it happened

The conflict situation continued and a large and very vocal group was formed on Facebook with the purpose of pressuring for the beach not to be private. From my perspective, the issue of who owns the "Beach' in Constance Bay has reached its resolution until such time as the matter is heard by the Ontario Superior Court. The City of Ottawa through its Legal Opinion and the Ottawa Police Service concurs in its letter dated July 9, 2010 that the properties in question do own the beach.

The OPS letter states: "there is little question that the owners on Plan 412 own 'to the shore line', making the beach private property" and that:" the water is public property and anyone has the right to walk in the water adjoining the beachfront". The letter goes on to say that the OPS will not enforce the Trespass Act due to resourcing issues and that if a final resolution is desired, then an application to the Ontario Superior Court should be made.

Presumably, if the group pushing for access wants to work out the situation they have two choices. The first is to take the case to Superior Court as the current position, as defined by the City is that the beach is private and the Plan 412 owners are in the right. It is not up to the property owners to prove to others they are in the right because the City already has defined the situation as being so. The second is a honey versus vinegar approach to the current owners with regard to allowing access. Antagonizing the owners will likely result in them just saying "No" to any mediation or joint solution. The situation is analogous to your co worker saying they deserve a percentage of your salary. Constructive dialog might work, "Give it over, now" will not.

The issue has got a significant amount of press from the local weekly papers with a number of parties weighing in. This includes all 3 current candidates, the MPP, the owners of the properties, the group against privatization and citizens both in Ward 5 and the areas surrounding it. Mr. El-Chantiry has been reported in the July 22 online edition of the West Carleton EMC as stating" "I can assure you this issue in Constance Bay is nothing new," he said. "Stay the hell out of my area and stop playing politics with the community."

The article goes on to say: "The people on the plan (Plan 412) own their land to the shoreline," O'Connor said back in May, noting that is based on how lot lines are drawn on the plan. "In our opinion, this is private property and this is what we have shared with our police colleagues. This is not the City of Ottawa declaring that this particular land's ownership. It is a legal interpretation based on the documents we have been able to read."

He said he didn't think this was new information to many of the residents since in 1983 the former Township of West Carleton received a legal opinion from an Ottawa firm stating the beach on Plan 412 was private property. That interpretation was also maintained in another legal opinion sought by the township in 1985, O'Connor added.

As such, the residents of Plan 412 installed 'no trespassing' signs along the beach. The signs were erected May 15, 2010 after the city issued its legal opinion. The signs read 'Private Beach to Shoreline - No Stopping, No Alcohol, No Walking After Sunset'.

Since being erected, the tension in the quaint and picturesque community has, at times, risen to a fever pitch. Some of the signs have been spray-painted, a Facebook group opposing the signs has been created and the group 'Friends Against Privatization of Constance Bay Beaches' has started up, while the existing Constance Bay Residents' Beach Committee tries to continue with the work it began in 2006.

El-Chantiry said the legal opinion provided by the city state's Plan 412 residents own to the shoreline, but even he wonders what the shoreline is.

"Where is the shoreline? Is it the shoreline of today, the shoreline of tomorrow - high water, low water? All these questions won't ever be answered until it goes to the Supreme Court to make a ruling on what is the shoreline and where it ends. There is no property on earth that has a beginning and doesn't have an end."

UPSET

El-Chantiry said he is upset with the fact that existing politicians seem to be trying to gain political favour in his ward by speaking out on an issue in which they really have no say. He said he hoped that individuals not directly associated with the beach matter would cease and desist from making comments in the media about a situation that does not affect them.

"Folks, this is not about politics. This has absolutely nothing to do with politics. This is something that is dividing the community with a knife. We have to stop this and try and work together to solve this in a very good manner, so stop tinkering," El-Chantiry concluded. "It's not something you are going to get a lot of votes on."

Mr. Parsons, another of the Ward 5 candidates has piped in on the shoreline issue as well. In the July 29, 2010 issue of the West Carleton Review he states:" Some properties, such as Plan 412 residents, own to the shoreline.". He also states:" This is why the City of Ottawa is of the opinion that the lands are not public. The city does not want to assume any liability for public use:. Again, I would beg to differ as the documents reviewed by the city specifically state ownership is to the waterline. He has the correct conclusion but for the wrong reason, at least in my opinion. The West Carleton Review is available online in pdf form here.

The following are just a subset of what was posted on the privatization "social network" within the one week during the summer :" why dont we do something like a walking campaign and talk to the people who live along the beach. lets see if we can make them see it our way."; "We can't make them work with us. It is their choice. And until they do something about their woes legally, it is a public beach."; " if you are approached and harassed for being there by any waterfront owner...tell them to take a hike!!!"; " Eli says prop owner's want to drink alcohol but, don't want to anybody else to on beaches, that basically they have to take to court until then the Point and all beaches aren't private...for now."; ‎"But waterfront property owner Fred Bayne said he doesn't want to see anyone using the beach in front of his cottage, not even if that person is patrolling the area. It is private property so this is something they can't do without our permission to begin with," he said. It is not private at the moment. Does anyone else get a little pissed when people are claiming they own it? Drives me nuts."; and finally:" I think they know they would be overruled again! is the reason they did not hire their own Lawyer and get a judgment from the supreme court. But it,s time this was settled once and for-all. I also think that the City of OTTAWA got involved with a legal judgment instead of just an opinion and that's my opinion.which is as good as theirs.".

Mr. El-Chantiry and numerous others seem to have pointed out that by its very nature, the 'shoreline' is moving. Common sense as a basic premise would be to say if you have water between yourself and dry sand, you are beyond the waterline. While a very simplistic comment, it for now clearly holds true and using that rule would go a long way to toning down the rhetoric and friction that exists. Chief White says basically the same thing as I quoted in the 4th paragraph above, so why is there STILL an issue?

The next thing that gets brought up is that various Government agencies, such as the MNR refer to 'shoreline' as the high water mark. I talked with several people on this including a former county and provincial engineer in May, when the issue first popped up on my radar, and they said they thought the same thing. What I found, however seems to contradict this. MNR Policy 2.06.03 talks about the high water mark being used between 1980 and 1998 with regard to sale of Crown land. There was also a period in the 1940's and 50's where access may have been allowed. This land has been in public hands for decades prior to this.

I believe, and it has been concurred publicly, that the shoreline is as defined in MNR Policy4.03.01.

I found a page on the web produced by Grey/Bruce Outdoors that talks to the shoreline issue. If I am wrong, I certainly would like to have somebody show me/everyone this actual legislation and perhaps this "High Water Mark" discussion will go away, While clearly some confusion does exist, a legal opinion is in place which most seem to agree does confirm the property owners own to the shoreline.

Early on, I suspect some form of mediation might have allowed an amicable resolution, but given what has elapsed to date, the owners are standing their 'currently legal' ground and saying stay off my property. IF there is to be any further resolution, it is up to those who disagree with the currently in place legal opinion, not the landowners, who must submit the case to the Ontario Superior Court.

Last, as I noted at the beginning and just to muddy up the water a bit more, Chief White has advised the current residents that the OPS will not be responding to beach trespassing calls. This was the lead story on the cover of the July 29, 2010 issue of the West Carleton Review as well. One the same page is a picture of a mom and daughter swimming at another beach in the Bay. The issue also had reference to a lot of those who have had made comments and some new ones. I suspect more of same will be in the upcoming issues of the papers.

I have fired my rounds, basically stated where I stand both in the Local print media and on my website blog where I addressed the issue initially on May 13. I have talked about it twice more on July 5 and July 13. I have discussed it knocking on doors. The story went dormant until August

Here is what happened during August: On August 11, 2010 CFRA had a 2 hour discussion on land grants and Letters Patent. One caller was a property owner on Lane Street and she asked, and had answered all of the outstanding questions which various City of Ottawa either were unable or unwilling to answer. The full content of the show is found via the CFRA website or edited down to just the single call via my website by clicking here.

On August 12, an Article appeared in the West Carleton EMC which again states one sides view. There is more content volumetrically but basically it is a reiteration of the property owners saying they own to the shoreline as per the legal opinion and the Face book Group stating that in their opinion [which they seem to perceive equals a legal opinion] the beach is public.

I did a screen capture of the Facebook group and their comments in August which can be found here. October 18 update - the Facebook group seems to have disappeared.

Decisiveness is a positive attribute in a city councillor, we can't always solve everything with a group hug.

My Solution

My Starting point for reaching a solution is found here.