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Opinion courtesy of  The Free Press
Tuesday September 14, 2004

Wither the public trust?

By Douglas Hunter

It’s hard not to be saddened by the Tiny Beaches dispute,  which seems to produce a fresh wrinkle on a weekly basis. The struggle  between public and private space along this beautiful waterfront  shows little hope of practical resolution at the moment. The mediator appointed by the provincial government wrapped up 3 years of efforts in May without any real resolution in the complex antagonisms. And  the problem, I’ll submit, rests not with the different warring parties on the local scene, but with Queen’s Park, for a longstanding failure to articulate a coherent public policy on the nature of  shorelands. Ontario has, quite simply, failed to define and then if necessary defend what public rights exist with respect to the lands below the high-water mark of our navigable waters, which the  province holds in trust for the people.

I’ve spent a fair bit of time researching public policy with respect to shorelines in the United States. The difference between  Canada and the U.S. is staggering. What’s particularly staggering  is that for the better part of two decades, American legislators  and policy makers at federal and state levels have been have been  using English law left over from the time of the Thirteen Colonies  to shape a nationwide approach to preserving public access to preserving  public access to shorelines. A fundamental reason is to ensure that  development does not turn the nation’s coastlines of fresh  and saltwater into private enclaves off-limits to the public. Actual policies vary from state to state, but the fundamental body of law, called the Public Trust Doctrine, shares with our own common law a heritage that stretches back through the Magna Carat and to the  time of the Roman Emperor Justinian. What sets apart our neighbors in the republic next door form our own lawmakers in this constitutional  monarchy is that they’ve been able to grasp basic, ancient concepts in English law and turn them into policies that don’t leave communities like tiny stewing in factional juices.

The Public Trust Doctrine has yet to be shaped within common law in Canada, the way it has in the U.S., although many aspects of the old code survive piecemeal in our statutes, and some legal experts have argued that the doctrine is waiting to be fashioned from them  here, just the way it’s happened stateside. Our federally assured public right to navigation is one surviving element. So  is the right to fish. So is the holding of bottom lands by provinces in trust. What’s lacking is a coherent, legally defensible vision of what the shoreline is, and who gets to use it, and how.

The root of the doctrine is the assurance of public access to and  use of shorelines. The legalities can be complex, but even basic  common law in Canada and the U.S. holds that private property ends at the high-water mark. Defining the high-water mark in tidal and  fresh waters has produced a variety of interpretations in different regions. Its part and parcel of an unresolved effort across many jurisdictions to consistently define what we mean by “shoreline” or “water’s-edge” without such wordings in property  deeds (never mind in international boundary treaties and offshore  drilling rights) have no strict legal meaning. But regardless of where the line is drawn, often literally in the sand, private property rights (called the jus privatum) under the doctrine are subservient  to public rights (the jus publicim), which extend to the high-water mark-and in some cases have been pushed even further inland.

This is one of most important and confusing concepts of a doctrine that can be traced back to Roman times. About one third of shorelines within the purview of the public trust doctrine in the U.S. are unequivocally owned. But ownership doesn’t change the fact that the jus publicum trumps all. You can own a shoreline property,  even though the adjoining bottom lands through a conveyance from the state, but the public right of access means anyone can visit  the realm below the high-water mark.

Some states have been more aggressive than others about ensuring that private property does not interfere with the public’s  ability to access that shoreline. In New Jersey, there are instances  where right of trespass has been extended to the public, so that they can cross part of a private property in order to access the shore. There are other cases where the “dry-sand” beach above the high-water mark has been deemed so fundamental to the  public’s ability to use and enjoy the shoreline that the state  has granted the public the right to sunbathe and play beach volleyball on it, even if this section is indisputably owned.

One of the major issues with the public right is precisely what  the public is entitled to do with it.

Historically, the jus publicum was considered for commercial activities  such as shipping and fishing.

Today, most American states agree that land-based recreational activities  are a valid exercise of the jus publicum, and in fact are encouraged.  In 1990 the federally-funded
National Public Trust Study in the U.S. declared that legitimate activities included “fishing, bathing, swimming, strolling,  pushing a baby stroller, hunting, fowling, both recreational and commercial navigation, environmental protection, preservation of scenic beauty, and perhaps the most basic use, just being there.

But there are exceptions. Maine and Massachusetts hold that the  tidelands between the high- and low-water marks aren’t open  to recreational use. The only public right they recognize is navigation, when water covers the shoreline below the high-water mark.
And this past June, the Michigan state court of appeal made a surprising ruling on a dispute between two Lake Huron property owners with  respect to the public trust doctrine.

The plaintiff had argued that a 15-foot-wide easement that gave  her access to the lake also entitled her to walk along the shore  in front of the private property whose owners objected to her presence.

The state agreed with the plaintiff, citing the public trust doctrine, but then the court of appeal sided with the waterfront property  owners.

The court agreed that, consistent with common law, the property  ended at the high-water mark, but decided that the property owners  had exclusive use of the shore down to wherever the water’s edge happened to be on a given day.

The only public right the court was willing to grant was that of navigation, when water covered the disputed area below the high-water mark.

It seems overwhelmingly clear that the Tiny dispute won’t  be resolved without the province wrestling with the many challenges  presented by the ancient principle of public trust, which our friends stateside have devoted so much energy to in recent years.
And make no mistake: there are downsides to aggressively interpreting  the public-trust doctrine in favour of public access.

Without rigorous planning at a local level, it can trigger runaway development of so-called “backlot” areas, overwhelm once-pristine waterfronts and impair quality of life in waterfront  communities.

The province nevertheless needs to come to terms with its own lack of policy in this area.

The Public Trust Doctrine gelled in the U.S. because of broad-based  interest among policy-makers at federal and state levels to make  something happen.

There’s no sign of such an interest up here, and the outcome of even a solo Ontario initiative is unpredictable.

Ontario (and other Canadian provinces who have neglected this issue) could go the route of New Jersey and aggressively promote and protect public access to shorelines.

Or it could follow the models of Maine and Massachusetts (and Michigan,  if the recent appeal court ruling stands up to a further appeal, to the state supreme court, filed in June) and place severe restrictions  on public use of lands below the high-water mark.
But it’s the Canadian way to leave issues like this to the courts, particularly if someone can carve a Charter of Rights case out of it.

I suspect it will take a civil action to force the issue of precisely  where the rights of the public and those of private property owners  begin and end in this province.

I don’t envy the shoreline property owners or those advocating public access to the many beaches, as it will be a winner-take-all  process.

But right now, nobody’s really winning.

Douglas Hunter lives in Tay Township. He is the author of more than a dozen books, including The Bubble and the Bear, which won The National Business Book Award.


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