Walking rights campaigners, property owners settle in
for marathon battle over Ontario's Great Lakes shoreline
BY LINDA MONDOUX
Despite a growing campaign pushing for legislation that would give the public the right to walk along the shoreline without being impeded by fences or signs warning “Private Property - No Trespassing,” don’t expect the freedom to stroll now enjoyed in many U.S. Great Lakes communities to happen any time soon in this province.
A provincial government and bureaucracy that are in no rush to take on an issue that is sure to create a political storm are seen as the hurdles that could see this campaign dragging on for many years.
“I think it will happen, just not as quickly as we had hoped,” Niagara MPP Kim Craitor told MyNewWaterfrontHome.com.
It’s been five years since the Fort Erie-based Ontario Shorewalk Association citizens’ organization officially launched a campaign for laws that would permit the public to walk uninterrupted along the Great Lakes shoreline, even if that shoreline passed in front of private property.
With a U.S. Supreme Court case to back it up (the court ruled in 2005 that Michigan residents had the right to walk along that state’s more than 5,000 kilometres of shoreline), Shorewalk soon convinced other residents and municipal governments across Ontario that there was no reason the same right of passage could not be recognized here, too.
The campaign was given a major boost after Shorewalk took Craitor, a Liberal MPP, for a stroll along a section of Fort Erie beach that had been fenced off to the water by a private landowner. Proclaiming “this isn’t right,” the MPP returned to Toronto and introduced a private member’s bill that would make sure fences such as the one that blocked his passage along the Lake Erie shoreline would be illegal.
“The Great Lakes Shoreline Right of Passage Act recognizes that it is time for the people of Ontario to reclaim their traditional rights of passage along the shores of the Great Lakes between the high-water mark and the existing shoreline, a right that exists in British common law, which still governs this country and province, a right I wish to emphasize through this legislation,” Craitor said in introducing the bill in February 2008.
Lawbreakers face $2,000 fine
Under the act, the walking public could access that stretch of shoreline between the water and the point where the water leaves a distinct mark on the shore, but only if a pedestrian reached the shoreline via a public right-of-way. In other words, walkers could not cross private property to reach the shoreline. And once on the shoreline, they could not stop to throw a towel down to sunbathe in front of private property, either. Permission is for passage only, and only on foot — no motorized vehicles allowed.
Anyone interfering with the right of passage, by putting up a fence to the water or posting trespassing signs, for example, would be guilty of an offence under the act and liable to a $2,000 fine.
While Craitor’s bill received first reading, it quickly died when the issue was overtaken by a provincial election. And while the initial media attention helped raise the profile of groups such as Shorewalk, it also created an angry backlash. The MPP was among those who were on the receiving end of blasts from waterfront property owners, many of whom said they had paid a premium for a private beach and weren’t about to share it with the public. “I had emails from people asking ‘who do you think you are?’ ” recalls Craitor.
Undaunted, the MPP reintroduced the bill in April 2010, reiterating that, “Essentially, it will allow the public to enjoy the various beaches in our province. It will prohibit adjacent landowners from claiming and barricading beaches by putting up fences way out into the water and claiming the beachfront as their own private property.”
Again, the bill received first reading, sparking renewed hope that this time, something would come of it.
Shorewalk president Stephen Passero, who along with founder Garry Skerrett were recognized by Craitor in the legislature as being instrumental in helping him introduce the right of passage bill, welcomed the move. “We anxiously await second reading of Bill 32 and have been actively pursuing partnerships and alliances with like-minded organizations who also recognize the importance of what the legislation accomplishes — a fair approach to a longstanding issue: balancing the public’s ever-increasing desire to access and stroll the shoreline with the interests and protection of waterfront property owners.”
In June, there was more good news for advocates of shoreline access when Canadian and U.S. municipal leaders in the Great Lakes region supported a resolution dear to the heart of Niagara Region chairman Peter Partington. The resolution, approved at a meeting of the Great Lakes and St. Lawrence Cities Initiative in Wisconsin, calls on the three levels of government in both countries to “take back into public ownership waterfront properties along the Great Lakes as they become available to ensure public access for future generations.”
Niagara Region, which has more than 200 kilometres of waterfront on the shores of Lake Ontario, Lake Erie and the Niagara River, is working to develop a “comprehensive waterfront enhancement strategy” that aims:
• To increase public access to the region’s waterways “so that residents and visitors have more opportunities to enjoy all of the recreational activities they have to offer.”
• To increase public ownership of waterfront properties where feasible and appropriate.
• To ensure that private development of waterfront properties happens in a way that “respects the areas' natural and environmental assets and enhances the quality of life for residents.”
Public access to the waterfront is an issue that is being debated in communities across Ontario, and often not too politely.
'Private property should be respected'
In Cobourg, where a single landowner had blocked access to the West Beach by putting up a fence, preventing the town from completing a wooden boardwalk across the sand, a war of words is being waged between those upholding property rights and those advocating for public access to Lake Ontario’s shoreline.
“Shame on you people - your sense of entitlement is a disgrace,” one person identified as “Anonymous” wrote on the website of the Cobourg Beach Society, a group of citizens promoting the development of a nature preserve along a strip of shoreline crossing private property. “Private property should be respected.”
Another commentator said: “This is just a petty attempt of people who want what isn’t theirs to try to steal under the pretext that they are preserving something for others. The landowners are the ones who are actually preserving the beaches. They are making sure random people do not deface them, litter on them or build on them.”
Litter is among the issues that is pitting neighbour against neighbour in the community of Balm Beach in Tiny Township on Georgian Bay. A waterfront homeowner has been the target of a very public battle — which has resulted in vandalism and even fisticuffs — since putting up a fence from his property across the shoreline to the water, a move that has outraged beach-goers.
The homeowner says the fence is necessary because people using the beach and frequenting the bar next door litter his property and trespass onto his land. The fence has been attacked with a chainsaw and set afire. The township has refused to step in to defuse the situation, relying instead on stepped-up police patrols.
In Cobourg, while residents claim they have been yelled at for “trespassing” while walking along the shoreline, things are more peaceful. Mayor Peter Delanty recently celebrated the acquisition of the waterfront property that had blocked access to the West Beach for five years, telling council that patience paid off in the end. After a series of negotiations, the owner agreed to sell the property to the town for $150,000, a price Delanty said will seem like a “bargain” with each passing year.
'We just can't come in as Big Brother'
“ ... We all have to keep reminding ourselves this is private property and we don’t live in a dictatorship,” the mayor said in a meeting with the Cobourg Beach Society, which had proposed expropriation as a means of gaining shoreline access. “These people do have rights. We can’t just trample on those rights. You can’t just come in as Big Brother. We have to work in a co-operative way.”
For most municipalities, buying waterfront property just isn’t feasible. In Fort Erie, for example, the town’s policy of buying from willing sellers, rather than expropriating, has not been successful because prime waterfront land, when it is available, is too expensive. As a result, the town in recent years has been using planning policies to achieve its goal. For example, a condition of development would require the dedication of beach lands for public use. A similar policy worked well recently in Kingston with the downtown waterfront Marriott hotel/apartment project, which was given approval only if public access was built around it, and a park developed on the harbour.
While more waterfront is being designated for public use, much of Ontario’s shoreline remains in private hands. It’s that fact that Craitor wants to address with his Great Lakes Shoreline Right of Passage Act bill.
As a private member’s bill, it does face its challenges.
In order to be sent to a committee for study and public hearings, the bill must first pass second reading. That can’t happen until Craitor receives his “time slot” in the legislature for private member’s bills. He has been advised that his turn comes up on Sept. 23. However, the MPP plans to use that time to push for second reading on another of his priority bills, this one granting grandparents access to their grandchildren.
That means the right of passage bill will have to wait for Craitor’s next designated time slot. And while the MPP expects the opportunity for second reading will happen before the next provincial election, which is scheduled for Oct. 6, 2011, there is unlikely to be enough time for the bill to go off to committee for hearings and a report, and then come back to the legislature for third reading and a vote.
“I’m not going to let go of this,” Craitor told MyNewWaterfrontHome.com. “Now that I’ve seen the fences up, I know this is the right thing to do.”
Craitor is so convinced that he wants the issue to be introduced as a government bill. “I prefer if the government took the lead on this,” he said. “They know there’ll be a backlash, so I need to show the support of various organizations.”
The MPP said he will continue to lobby the ministers of Natural Resources and Environment in an effort to convince them to take it on as a government bill. “It’s happened before on one of my private member’s bills (the renaming of Highway 405), so it can happen again,” he said optimistically.
All that's needed is a little time
In the meantime, Shorewalk is urging people who agree with the right of passage bill to contact their MPP to let him or her know, perhaps vaulting shoreline strolls onto the agenda as an election issue.
Shorewalk’s Passero would love nothing better than to see the McGuinty government take on the right of passage bill and approve it before the election. But with a potential hot potato on its hands, the Liberal government is unlikely to do that now, he says.
“It will take some time before the government sees that there’s widespread support,” Passero told MyNewWaterfrontHome.com. “We’re working with municipal governments to sign on and will continue to do so. At some point, we’ll reach a stage that the government won’t be able to ignore it.”
Passero says his organization has received support from MPPs across all parties, as well as from waterfront landowners who want to walk on their own shoreline without a confrontation.
But until more waterfront landowners are convinced that a right of passage won’t take away their property rights or have a detrimental effect on the value of their land, walkers strolling along Ontario’s Great Lakes shoreline will continue to run into obstacles.
Passero believes that an education campaign — showing that walking rights in other jurisdictions, such as Britain, and closer to home, Michigan, have not resulted in vandalism, property devaluation or other “the sky is falling” predictions — will bring all sides together. Eventually.
“We just need to persevere,” he said.
Even in Britain, where the freedom to roam is enshrined in law, walking rights didn’t happen overnight. According to the Ramblers’ Association, MP James Bryce first introduced a bill for freedom to roam in 1884. But things didn’t really start opening up for walkers in the countryside until 1949, helped along the way by pressure and a publicity campaign that featured a “mass protest trespass” in the Peak District that sent six people to jail in 1932.
A made-in-Ontario “mass protest trespass” — perhaps at the U.S.-Canada border crossing at Niagara Falls — might be what it takes for walkers to win the day here.
MyNewWaterfrontHome.com — July 2010