Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379

Court of Queen ’ s Bench of Alberta Citation: Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379 Date: 20110616 Docket: 0810 01170 Registry: Red Deer Between: Jerry C. Lack & Linda K. Lack, Audrey Jeanne Munro & Richard Dale Munro, Allan Mowat Tudhope & Vicki Tudhope, Susan B. Barnard, Pamela J.

Sheremeta, Grace Elizabeth Fozzard, Allan Douglas Campbell, Debie Jewel Dorothy Trueman, Gwen Ellen Empson, Gerald Wayne McKay & Barbara Ann McKay, Terri Lynn MacKenzie and Ronald Alois Skoreyko & Shannon Gail Skerrick Applicants - and - Her Majesty the Queen in Right of Alberta as represented by the Minister Responsible for Sustainable Resource Development, the Alberta Sustainable Resource Development, Lands Division, Riparian Land Management & Water Boundaries Unit Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D.

Yamauchi _______________________________________________________ I. Nature of the Application [ 1 ] This is an application for judicial review of a decision of the Riparian Land Management & Water Boundaries Unit, Land

[ 1 ] This is an application for judicial review of a decision of the Riparian Land Management & Water Boundaries Unit, Land Management Branch, Lands Division of Alberta Sustainable Resource Development (“SRD”) that it issued in August of 2008 (the “Decision”). The Decision withheld SRD’s consent to the Applicants’ proposed plan of survey (the “Proposed Plan”), that the Applicants created during the process of their amending the description of a subdivision plan to reflect the current location of the shores of Gull Lake. The Applicants were making their application pursuant to

section 89 of the Land Titles Act , R.S.A. 2000, c. L-4 (“ Land Titles Act ”). The SRD administers this regime on behalf of the Province of Alberta, specifically, the Minister of Sustainable Resource Development. [ 2 ] During their oral submissions the Applicants made a preliminary application to amend the style of cause to reflect more accurately the Respondents in this application. The preliminary application was not opposed by the Respondent and this Court granted the preliminary application. II.

Background [ 3 ] In March 2007, the Applicants who are landowners owning 15 lots on the south side of Gull Lake, Alberta, as a group, retained counsel to assist them in making a riparian land claim. All of the lots in question are described within nine separate certificates of title as Plan 1970E0 and Lot Numbers 1 through 15, excepting thereout all mines and minerals ("the Lots"). [ 4 ] The parties dispute the descriptions of the Lots.

The Applicants argue that the description of the Lots are considered “non- ATS” (Alberta Township System), on the basis that when the Lots were subdivided in 1929, the northern boundary of each Lot was the water boundary of Gull Lake.

The Respondent argues that the description of the Lots are considered “ATS” based on the original subdivision Plan 1970EO registered on January 23, 1930, with the subdivision plan titled "Addition to Brownlow's Landing showing subdivision of part of N.E. ¼ Sec. 25-Twp. 40 - Rge. 1 - W. of 5th m”. [ 5 ] The shoreline of Gull Lake has receded over the years and, presently, there exists over 600 metres of accreted land between the north end of the Lots and the water boundary of Gull Lake (the “Accreted Lands"). [ 6 ] The Applicants retained a surveyor, Olson Surveys Ltd. (“Olson”), who prepared the Proposed Plan, and forwarded it to the SRD on January 16, 2008, to obtain the Minister’s consent (or someone authorized by the Minister) to the Proposed Plan, as required by the Land Titles Act s. 89. [ 7 ] SRD provided the Applicants, through their solicitor, with the Decision Letter.

SRD’s reasons for its refusal of consent was that the Proposed Plan purports to distribute the Accreted Lands beyond the NE25-40-1-W5M and into SE36-40-1-W5M. The SRD maintains that the Accreted Lands within SE36-40-1-W5M belong to the Griffins, who are the owners of the SE36-40-1-W5M ("the Griffins"). [ 8 ] To assist the reader, this Court has attached as Appendix “A” a map showing the Lots, the Accreted Lands and the Alberta Township System (“ATS”) boundaries. III. Legislation [9]

Section 3 of the Public Lands Act , R.S.A. 2000, c. P-40 (“ Public Lands Act ”), provides that: 3(1) Subject to subsection (2) but notwithstanding any other law, the title to the beds and shores of (

a) all permanent and naturally occurring bodies of water, and

(

b) all naturally occurring rivers, streams, watercourses and lakes, is vested in the Crown in right of Alberta and a grant or certificate of title made or issued before, on or after May 31, 1984 does not convey title to those beds or shores. [10] The Land Titles Act s. 89 provides: 89(1) Where a parcel of land that adjoins land owned by the Crown in right of Alberta has a natural boundary, the Registrar, on application by the registered owner of the parcel or the Crown, may amend the description of the parcel to reflect the current location of the natural boundary.

(2) Where a parcel of land (

a) had adjoined land owned by the Crown in right of Alberta, and (

b) had a natural boundary that no longer exists, the Registrar, on application by the registered owner of the parcel, may amend the description of the parcel to reflect the non-existence of the natural boundary.

(3) An application under subsection (1) or (2) shall be accompanied (

a) in the case where the natural boundary still exists, with a plan of survey or other evidence satisfactory to the Registrar showing the location of the natural boundary; (

b) in the case where the natural boundary no longer exists, with evidence satisfactory to the Registrar of the non-existence of the natural boundary; (

c) with the consent of the Minister charged with the administration of the adjoining land or a person authorized by the Minister, where the Crown is not the applicant; and (

d) with the consent of the registered owners of parcels that may be adversely affected by the amendment of the description. IV. Issues [11] This application requires this Court to consider the following issues: A. Has the SRD exceeded its jurisdiction by not merely providing or withholding consent, based on the location of the water boundary or the change to the water boundary that has occurred by way of accretion?

B. Does the SRD have the jurisdiction to refuse to consent to the Proposed Plan on the basis that the Proposed Plan purported todistribute accreted land beyond the ATS boundary of NE 25 40-1-W5M into the SE 36-40-1-W5M, which is allegedly owned by adifferent party? C. Does the Applicants’ entitlement to the Accreted Lands end at the northern ATS boundary of the NE 25-40-1-W5M? V. Standard of Review [12] On a judicial review application, the reviewing court must determine the standard of review it must apply to the decisionunder review, relative to the issues involved in that decision. In Dunsmuir v.

New Brunswick, 2008 SCC 9 at para. 45, [2008] 1 S.C.R.190, the Supreme Court of Canada revised the standards of judicial review, which now comprise two standards, being correctness andreasonableness. [13] The process of judicial review involves two steps. First, the court must ascertain whether the jurisprudence has alreadydetermined, in a satisfactory manner, the degree of deference it must accord the decision maker, having regard to a particular category ofquestion.

Second, where the first inquiry proves unfruitful, the court must proceed to analyze the factors that make it possible to identifythe proper standard of review: Dunsmuir at para. 62. [14] The Applicants argue that the question in this judicial review goes directly to jurisdiction. Further, they argue that this Courtmust undertake the analysis that the Supreme Court of Canada directed in Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, 11 Admin. L.R. (3d) 1. Such an analysis would demonstrate that: (

i) there is no privative clause regarding the SRD’s consent in the statutes; (ii) the SRD has expertise when it is determining the location of the water boundary to protect the Crown’s interest.

It did not,however, have expertise on the issue it addressed in this matter, viz., the purported ownership of the Accreted Lands; (iii) the primary purpose of the Public Lands Act is to protect, maintain and administer Crown land, and, accordingly, the SRD’sresponsibilities pursuant to that legislation is very narrow and limited; and (iv) determining whether the SRD had authority to withhold its consent, based on an factor beyond the location of the waterboundary to protect the Crown’s interest, is an issue of law.

Thus, the Applicants argue that the standard of review is correctness. [15] The Respondent took a different approach by identifying two issues, namely, the “ownership question” (Issue B above) andthe “geographical entitlement question” (Issue C above), and discussing the standard of review applicable to each. The Respondentargues that the ownership question (Issue

B) deals with its jurisdiction, and that this is the preliminary issue that the Applicants raise, asa “jurisdiction question” (Issue A). In other words, both the ownership question and the jurisdiction question involve the question ofwhether the Respondent has the jurisdiction to refuse to consent to the Proposed Plan.

The Respondent agrees that administrative bodiesmust be correct in their determination of true questions of jurisdiction or vires. [16] Recently, the Supreme Court of Canada stated that reviewing judges can usefully begin their analysis by determining whetherthe subject matter of the decision before them for review falls within one of the non-exhaustive categories that Dunsmuir identified:Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 24-26. In this case, Fish J. said that:

[26] Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard ofcorrectness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as awhole and outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79,2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specializedtribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61).

On the other hand, reasonableness is normally the governingstandard where the question: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connectedto its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involvesinextricably intertwined legal and factual issues (paras. 51 and 53-54). [17] This Court finds that there is a central question of jurisdiction involved in the jurisdiction question (Issue

A) and theownership question (Issue B). As well, existing jurisprudence has already determined, in a satisfactory manner, the degree of deferencethat this Court must accord to a true question of jurisdiction or vires. Thus, the standard of review that this Court will apply to these isone of correctness. [18] However, whether the Minister provides or does not provide its consent, through the SRD, is a discreet issue. This is also atthe core of the jurisdiction question (Issue

A) and the ownership question (Issue B). The Land Titles Act s. 89(3)(

c) provides that whenan applicant makes an application under this provision, the application shall be accompanied “with the consent of the Minister chargedwith the administration of the adjoining land or a person authorized by the Minister, where the Crown is not the applicant.” The statute isclear that the applicant must include the Minister’s consent with an application made under Land Titles Act s. 89, but it does not stipulatethe procedure for the exercise of the ministerial power or authority to consent.

Thus, the legislative scheme indicates the Albertalegislature’s intention to leave the exercise of the statutory function of providing or not providing consent to the Minister’s discretion. [19] Where the question is one of fact, discretion or policy, deference will usually apply automatically: Dunsmuir at para 51;Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554 at 599-600; Dr. Q v. College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para 29; Suresh v Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paras. 29-30.

Thus, questions of fact, discretion and policy, as well as questions wherethe legal issues cannot be easily separated from the factual issues, generally attract a standard of reasonableness, while many legal issuesattract a standard of correctness: Dunsmuir at para. 51. [20] Because the Minister’s authority to provide or not provide its consent is discretionary, the existing jurisprudence has alreadydetermined, in a satisfactory manner, the degree of deference this Court must accord to this category of question.

Thus, this Courtconcludes that the reasonableness standard of review is applicable to the Minister’s refusal to consent to the Proposed Plan, on the basisthat the Proposed Plan purported to distribute the Accreted Land beyond the ATS boundary of NE 25 40-1-W5M into the SE 36-40-1-W5M. [21] The geographical entitlement question (Issue

C) deals with the question whether the Applicants' entitlement to the AccretedLands end at the northern ATS boundary of the NE 25-40-1-W5M. This issue is intertwined with the question of the ownership of SE 36-40-1-W5M by the Griffins, i.e. the ownership question (Issue B). [22] The Respondent states that geographical entitlement question (Issue

C) is the underlying, actual problem of the ownershipquestion (Issue B), and submits that this Court must undertake a Pushpanathan analysis for determining the applicable standard ofreview.

The Respondent argues that while there is no privative clause relating to the Minister’s power to provide or not provide itsconsent under the Land Titles Act s. 89, all the other factors suggest that this Court should show deference with respect to this issue. [23] The Respondent argues that the Minister’s purpose under the Land Titles Act and the Public Lands Act ( collectively, the“Acts”) is to administer the ownership and boundary review for bed and shores of all permanent and naturally occurring bodies of water,and all naturally occurring rivers, streams, watercourses and lakes on behalf of the Province of Alberta.

Further, the Acts give theMinister a broad discretionary power, being polycentric, that seeks to balance the interests of the Province and those of individuals,while advancing the public interest at large in protecting the underlying foundation of the ATS. The nature of the question involves theMinister considering and interpreting certificates of title, subdivision plans, grants of title and proposed plans of survey and whetherthose meet the requirements for consent under the Land Titles Act s. 89.

The Respondent argues that the nature of the question “is suchthat a less searching standard of review should be applied than for a question of law.” The Respondent submits that it has expertise withthe Land Titles Act and issues of accretion. In this case, the Respondent argues that it is interpreting Land Titles Act s. 89, which isdirectly related to its function and submits that even if this Court characterizes the question as a pure question of law, the Respondent’s

interpretation should attract deference. In

summary, the Respondent argues that the appropriate standard of review for the geographicalentitlement question (Issue

C) is reasonableness. [24] The Alberta Court of Appeal has held that the

interpretation of a title, including whether a parcel of land has a naturalboundary, is a question of law, such that the standard of review is correctness: Andriet v. County of Strathcona No. 20, 2008 ABCA 27at para. 24, 433 A.R. 329; Hextall v. P Burns & Co (1962), (AB KB), 38 W.W.R. (N.S.) 422 (Alta. S.C.). [25] Further, the geographical entitlement question (Issue

C) is a question of general law that is of central importance to the legalsystem as a whole. It involves the

interpretation of a title and riparian land ownership. This Court does not consider the Respondent’sexpertise or experience in this area of law or in its

interpretation of the Land Titles Act to be better, relative to that of a court: Dunsmuirat para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 62; Smith at para. 26. Thus, this Courtconcludes that the standard of review applicable to geographical entitlement question (Issue

C) is one of correctness. VI. Application of the Standards of Review [26] This Court will apply the selected standards of review to each issue. Issue A. Has the SRD exceeded its jurisdiction by not merely providing or withholding consent, based on the location of thewater boundary or the change to the water boundary that has occurred by way of accretion? [27] The Applicants argue that the SRD derives its authority from statute.

They further argue that the Acts give the SRD thejurisdiction and authority “merely” to provide or withhold consent, based on the location of the water boundary or the change to thewater boundary that has occurred by way of accretion. [28] As well, they argue that the SRD has no authority to base its consent or withholding of its consent on any other issue,including the fact that the Accreted Lands may cross property lines.

In their written submissions, they argue that the Griffins, whoseinterest the Respondent is allegedly protecting as owners of SE 36-40-1-W5M, are not riparian owners and would have no entitlement tothe Accreted Lands. In any event, as a precaution, they have “requested and received” the Griffins’ consent.

They submit that as such,the SRD exceeded its jurisdiction that the Acts provide to it and incorrectly refused to provide the Applicants with its consent, based onissues outside its authority. [29] The Respondent argues that the Acts provide it with the jurisdiction to consider a number of factors when it decides whetherit will provide its consent or refuse to provide its consent under the Land Titles Act s. 89. [30] SRD states that it refused to provide its consent because: (

a) the proposed plan of survey purported to distribute accreted land beyond the ATS boundary of NE 25 40-1-W5M into the SE 36-40-1-W5M, which is owned by a different party; (

b) the Crown no longer shared a natural boundary with the Applicants, so the Applicants did not meet the requirement of being aregistered owner of parcel of land that adjoins land owned by the Crown in right of Alberta having a natural boundary under the LandTitles Act s. 89; and (

c) if the Ministry consented to the Proposed Plan, this would take Accreted Lands away from the Griffins, who are the owners ofSE 36-40-1-W5M, i.e., they are owners entitled to the Accreted Lands north of the ATS boundary.

(collectively, the “Refusal Factors”) [31] The Respondent argues that it is not in dispute that the shoreline has receded from the NE 25 40-1-W5M into the SE 36-40-1- W5M owned by the Griffins.

The Respondent argues that the Griffins are riparian owners by virtue of an “unbroken sequence of transmission of the riparian rights through the historical chain of titles.” While the Applicants posit this as an issue of jurisdiction, the underlying central issue is whether the Applicants’ lands are limited by the quarter-section or legal subdivision lines within the relevant township (the ATS boundary). [32] The Respondent argues that mere consent of the Griffins does not convey the riparian rights to ownership of accretion that the Griffins possess by virtue of their being “heirs and assigns” of the original homestead grantee of “the south half of

Section Thirty-six of [40-1-W5M], which is not covered by any of the waters of Gull Lake”: original land grant dated December 7, 1905.

The Respondent submits that the Griffins must transfer the Accreted Lands located in the SE 36-40-1-W5M to the Applicants to convey the Griffins’ riparian rights of ownership to the Applicants. [33] Further, the SRD argues states that it is the Respondent’s responsibility to ensure that parties seeking consent to a proposed plan of survey are actually the registered owners of the lands adjoining the Crown lands and that whenever an applicant sends a proposed plan of survey to the Minister, the Minister must not “only to determine the water boundary” but it must undertake a review properly to provide its consent pursuant to the Land Titles Act s. 89. [34] This Court has no doubt that the relevant provisions of the Acts , involving a change to a natural boundary, lead to the conclusion that the Minister (or a person authorized by the Minister), where the Crown is not the applicant, has the statutory power to grant or withhold its consent under the Land Titles Act s. 89.

The parties agree on this issue. This Court, therefore, concludes that the Respondent was correct to assume jurisdiction. [35] This Court will deal with the question whether the Respondent exceeded this jurisdiction within its discussion of the next issue. Issue B .

Does the SRD have the jurisdiction to refuse to consent to the Proposed Plan on the basis that it purported to distribute accreted land beyond the ATS boundary of NE 25 40-1-W5M into the SE 36-40-1-W5M, which is allegedly owned by a different party? [36] This Court has characterized the Minister’s authority in this case as discretionary, and is reviewable using the standard of reasonableness.

Accordingly, the issue becomes whether the Respondent’s decision to refuse to provide its consent to the Proposed Plan is reasonable. [37] While a court is conducting a judicial review, reasonableness is concerned “mostly with the existence of justification, transparency and intelligibility within the decision-making process.” As well, it is concerned with whether the decision falls within a range of possible, acceptable outcomes that are defensible in the light of the facts before the decision-maker and the law that the decision-maker is applying: Dunsmuir at para 47 . [38] The Decision read in part that: ... [W]e have reviewed your proposal to amend the subdivision plan and can advise that we will not consent to the survey plan you have provided.

The plan you have submitted purports to distribute the accreted land beyond the ATS boundary of NE 25 40-1-W5M ... to the current shoreline of Gull Lake. We agree that you . .. may be entitled to accreted land, but only up to the northern ATS Boundary. The remainder of the accreted land north of the ATS Boundary belongs to the owner of SE 36-40-1-W5M .

The doctrine of accretion can in no event extend the ownership of land beyond the description in the certificate of title. Your ...certificates of title limits [sic] their ownership to the boundaries of Plan 1970 EO, which is a subdivision of part of the NE ¼ 25 andtherefore entirely within the bounds of NE 25 40-1-W5M.

In reaching this decision, we have carefully reviewed Andriet v County of Strathcona No. 20, 2008 ABCA 27 ... (Respondent’s Return, Tab 11, p. 017) [39] This Court does not accept the Applicants’ argument that the Acts “merely” give the SRD the authority to provide or withholdconsent based solely on its consideration of the location of the water boundary or the change to the water boundary that has occurred byway of accretion.

Admittedly, the Acts do not specify the process by which the Respondent is to exercise its discretionary function.Nonetheless, it would defy logic for the Minister (or a person the Minister authorizes) simply and mechanically to “rubber stamp” orconsent to a proposed plan of survey without reviewing it to ascertain its accuracy, or whether the proposed plan of survey has otherwiseoverreached its authority by improperly conferring or transferring ownership of land or other proprietary rights. [40] This Court holds that the Respondent was within its statutory mandate to consider, in addition to the location of the waterboundary and the change to the water boundary by reason of accretion, the full legal ramifications of the exercise of its discretionarypower to consent under the Land Titles Act s. 89 by appropriately evaluating the Refusal Factors. [41] The Applicants received Griffins’ consent to the Proposed Plan.

Despite this, in matters of land titles, mere consent isinsufficient to convey rights of ownership. Land Titles Act s. 89(3)(

d) says that the application must be accompanied by a "consent of theregistered owners of parcels that my be adversely affected by the amendment of the description." The Proposed Plan not only "adverselyaffects" the Griffins, it takes away their proprietary interest. The appropriate way in which to transfer any estate or interest in land isthrough a transfer of land.

This Court would no doubt recognize and accept a land transfer as a form of consent. [42] As a result, this Court finds that the SRD did not exceed its jurisdiction by not “merely” providing or withholding consentbased on the location of the water boundary or the change to the boundary that occurred by way of accretion.

It acted correctly andreasonably in its consideration of appropriate and relevant factors that would obviate an arbitrary, thoughtless or mechanical exercise ofits discretion. [43] The Respondent’s consideration of the Refusal Factors before it exercised its discretionary authority and jurisdiction, and itssubsequent decision to withhold its consent to the Proposed Plan, falls within a range of possible, acceptable outcomes that are defensiblein the light of the facts before the decision-maker and the law that the decision maker was applying.

Further, the decision set forth in theDecision demonstrates the existence of justification, transparency and intelligibility within the Respondent’s decision-making process.Thus, this Court concludes that the Respondent’s refusal to provide the Applicant with a consent to the Proposed Plan is reasonable. Issue C.

Does the Applicants’ entitlement to the Accreted Lands end at the northern ATS boundary of the NE 25-40-1-W5M? [44] As mentioned earlier, this Court concluded that the standard of review applicable to geographical entitlement question (IssueC) is one of correctness. [45] The Applicants correctly point out that accretion has occurred in conformity with the legal requirement that there must be anincrease in land bordering on a river, lake or sea resulting from the stilting up of soil, sand or other substance, or the permanent retiral ofthe waters; that the process must be gradual such that the land growth is imperceptible; and the increase was the result of the action ofwater in the ordinary course of nature, not something unnatural: Clarke v.

Edmonton (City), (SCC), 1929 CarswellAlta117 at para. 13, [1930] S.C.R. 137, [1929] 4 DLR 1010; and Chuckry v. R., (SCC), [1973] S.C.R. 694, 35 D.L.R. (3d)607. They argue that they are entitled to make a claim to the Accreted Lands because they are riparian owners and the shores of GullLake were the natural boundary of the Applicants’ parcels: Andriet at para 27. Further, they argue that access to water goes to the heartof riparian ownership: Andriet at para 32. [46] Significantly, the Applicants argue that, in Alberta, an owner’s entitlement to accretion is limited by the legal description in

the owner’s certificate of title: Red Deer (City) v. Pitt , 1998 ABQB 724 , 230 AR 396, aff’d, 2000 ABCA 281 , 271 A.R. 160; Johnson v. Alberta , 2001 ABQB 642 , aff’d, 2005 ABCA 10 , leave to appeal refused, [2005] 1 S.C.R. xi, 344 N.R. 193 (note). They pointed out that in Pitt and in Johnson , the court held that the ATS lines, referenced in the certificates of title, limited the accretion to which the riparian owners were entitled. [47] The Applicants argue that the legal descriptions of the Lots do not describe boundaries on all sides and that the Lots have been bought and sold as lake lots for decades.

As well, they argue that each of the Lots is described merely as Plan 1970 EO and, at the time of subdivision in 1929, the northern boundary of each of the Lots was Gull Lake, with each lot having had continual access to Gull Lake.

By analogy, they argue that where the land plan abutting a river had no defined boundary, the boundary line was to be determined by the rules of law and construction to be the river itself: Clarke at para. 34 . [48] The Applicants argue that the disputed portion of the Accreted Lands, being the northern portion of the notional boundary of SE 36-40-1-W5M, was completely underneath the waters of Gull Lake when the Lots were subdivided and that the Griffins own the only surveyed and registered portion of SE 36-40-1-W5M which is west and north of the Lots.

They argue that “while part of the SE 36-40-1-W5M was originally bound by Gull Lake (and the balance covered by Gull Lake), the Griffins and prior owners have had no access to water since 1906 with the registration of Plan XCVI, which plan has since been amended to Plan 052 2851.” [49] Because neither the County of Lacombe nor the Crown has suggested that it is entitled to the disputed portion of the Accreted Lands, the Applicants argue that they have better and equitable entitlement to the disputed portion of the Accreted Lands. [50] On its receipt of the Proposed Plan, the Respondent noted that the Proposed Plan purported to distribute accreted land beyond the ATS boundary of NE 25 40-1-W5M into the SE 36-40-1-W5M.

Consequently, the Respondent reviewed the chain of title back to the original land grant for the NE 25 40-1-W5M and SE 36-40-1-W5M to determine the rights to the Accreted Lands. [51] SRD’s review indicated that the original Crown grant for NE 25 40-1-W5M which underlies the Applicants’ titles to the Lots in Plan 1970 EO composed of: All that portion of the Northeast quarter of

Section Twenty -five (25) and all that portion of the East half of

Section Thirty-five (35), both of the said Township, which are not covered by any of the waters of Gull Lake , as shown upon a map or plan of Survey, of this said Township signed at Ottawa, on the 26th day of September A.D., 1896, by Edouard Deville, Surveyor General of Dominion Lands and of record in the Department of the Interior containing by admeasurement together, Four hundred and thirty-four (434) acres more or less. [SRD’s Return, Tab 22, p. 048]. [52] SRD’s review demonstrated that the original Crown grant for SE 36-40-1-W5M which underlies the Griffins’ title composed of: All that portion of the South-half of

Section Thirty-six of the said township, which is not covered by any of the waters of Gull Lake , as shown upon a map or plan of survey of the said township, signed at Ottawa on the 26th day of September, A.D. 1896, by Edouard Deville, Surveyor General of Dominion Lands and of record in the Department of the Interior containing by admeasurement One Hundred and Fifteen (115) acres, more or less. [SRD’s Return, Tab 23, p. 064]. [53] The Respondent argues that while the Applicants were riparian owners, they ceased to be riparian owners when the waters of Gull Lake receded over the quarter

section line into the SE 36-40-1-W5M, which the Griffins own. It submits that the Applicants are entitled to the Accreted Lands up to northern boundary of the NE 25 40-1-W5M. [54] The Respondent argues that the Lots described as Plan 1970 EO references ATS boundaries and they are within the NE 25 40-1-W5M. A review of the Subdivision Plan 1970 EO registered on January 23, 1930 reveals that it bears the title, “Addition to Brownlow's Landing showing subdivision of part of N.E. ¼ Sec. 25-Twp. 40 - Rge. 1 - W. of 5th M.” They argue that this is an ATS

description within the N.E. quarter section” (SRD’s Return, Tab 18, p. 024). [55] The SRD also argues that the Applicants are not the “heirs and assigns” of the SE 36-40-1-W5M, which is the quarter sectionthat the natural boundary into which Gull Lake has now receded.

Further, it argues that assuming (without conceding) the boundaries are“non-ATS” boundaries as contended by the Applicants, the Alberta Court of Appeal views positively the proposition that both ATS andnon-ATS boundaries limit the extent of accretion that a property owner may claim: Andriet at paras. 63-64. [56] In respect of the non-surveyed notional boundaries, the Respondent submits that the fact that the boundary of SE36-40-1-W5M had not been surveyed until recently has no bearing on the question of the Applicant’s entitlement to the Accreted Landsin the SE 36-40-1-W5M, since parcels of land are determinable in Alberta whether or not they have already been surveyed: Johnson atpara. 40. [57] The SRD argues that the Griffins’ title has an unbroken sequence of the riparian rights through the historical chain of titlesthat connects back directly to the original homestead grantee’s grant.

Their title is comprised of the south half of

section 36 “not coveredby the waters of Gull Lake” and that when Gull Lake receded into their

section they became entitled to the Accreted Lands in the southhalf of that section. It argues that although the Applicants stated in their written submission that they have obtained the consent of theGriffins to the Proposed Plan as a precaution, that is not, in itself, sufficient to convey riparian rights of ownership to the Applicants.

Forthe Applicants to obtain the Griffins’ riparian rights, they must acquire those rights by purchase, inheritance, receipt of gifted land, orwhatever other legal means that will directly connect the Applicants’ titles to the Griffins’ title to make them a part of that chain of titleand thus become eligible “heirs and assigns” of the original homestead grantee of the south half of

Section 36-40-1-W5M “not coveredby the waters of Gull Lake.” [58] As for the issue of registration of Plan XCVI and its subsequent amendment to Plan 052 2851 by certain orders of the Court ofQueen’s Bench, the Respondent argues that it is unclear whether: (

a) the Griffins were party to the action; (

b) notice was given to theGriffins; (

c) the Griffins’ consent was obtained to the revised plans; (

d) the Griffins’ interest was brought to the Court’s attention duringthe application; and (

e) the legal principles involved in this judicial review were considered in the earlier application. In sum, theRespondent argues that in the view of these concerns, the changes to Plan 052 2851 have no bearing on the within application. [59] The legal principles governing accretion in Alberta have been clearly articulated by both parties to the effect that, inter alia,an owner’s entitlement to accretion is limited by the legal description in the owner’s certificate of title. In other words, the ATS linesreferenced in the certificates of title would limit the accretion to which riparian owners are entitled.

It is also important to note that theAlberta Court of Appeal supports the view that both ATS and non-ATS boundaries limit the extent of accretion that a property ownermay claim and that the decisions in Pitt and Johnson were more concerned with giving certainty to the descriptions in certificates oftitle: Andriet at paras. 63-64. [60] This Court finds that the description in the original Crown grant for NE 25 40-1-W5M, which underlies the Applicants’ titlesto the Lots in Plan 1970 EO and the description in the original Crown grant for SE 36-40-1-W5M which underlies the Griffins’ title arehelpful in ascertaining with relative precision the ATS and non-ATS boundaries of all the parcels or tracts of land of which each grant iscomposed.

This Court recognizes that the original Crown grants for each of these parcels refer to lands “which are not covered by any ofthe waters of Gull Lake, as shown upon a map or plan of survey of the said township, signed at Ottawa on the 26th day of September,A.D. 1896 ...” Certainly, the Accreted Lands were covered by the waters of Gull Lake in 1896. Does that mean that the owners of theseparcels never had, or could never acquire, any right to the Accreted Lands? The land descriptions contained in the original Crown grantsdeal only with the lands to which the grantees are entitled.

Riparian rights exist either at the time of the original Crown grants or throughthe passage of time as water recedes or shorelines expand. In Western Irrigation District v. Trobst, (AB KB), 1990CarswellAlta 310, 103 A.R. 65 (Q.B.) Virtue J. described “riparian rights” in the following way: 17 At common law the owner of land on the banks of a natural stream or watercourse is entitled to the enjoyment of what arecommonly known as "riparian rights".

A riparian owner has a right to the ordinary use of the water which adjoins his land, as a naturalincident of the ownership of the land itself, which does not depend upon the ownership of the land covered by the water. Chasemore v.Richards (1859), 7 H.L.C. 349, 11 E.R. 140; Lord v. Sydney (City Commissioners) (1859), 12 Moo. P.C. 473. [Emphasis added]. [61] Based on the original Crown grants, the Applicants had and the Griffins have riparian rights.

The Applicants acknowledge intheir written briefs, that, originally, part of SE 36-40-1-W5M which underlies the Griffins’ title, was bounded by Gull Lake before theregistration of Plan XCVI, which was done pursuant to certain orders of the Court of Queen’s Bench (see Applicants’ Brief at para 35). It

remains unclear how the alleged orders of the Court of Queen’s Bench would have altered these fundamental riparian rights, absent clear indication to the court that the Griffins, or their predecessors in title, were party to the action or were given notice of the application that resulted in the alleged orders. This would have provided the Griffins, or their predecessors in title, the opportunity to make representations regarding their interests as riparian owners.

Neither is it clear whether the Griffins, or their predecessors in title, gave their consent to the revision or registration of Plan XCVI and its subsequent amendment to Plan 052 2851, which apparently had an adverse impact on their riparian rights. [62] This Court finds that the Applicants' entitlement to the Accreted Lands end at the northern ATS boundary of the NE 25-40-1-W5M and that they ceased to be riparian owners when the waters of Gull Lake receded over the quarter

section line into the SE 36-40-1-W5M which is owned by the Griffins. To that end, this Court holds that the Respondent is correct in its

interpretation of the Acts , its consideration of the appropriate land titles documents and its decision contained in the Decision, in which it refused to provide its consent to the Proposed Plan, on the basis that the Applicants were not the owners of the Accreted Lands in the south half of SE 36-40-1-W5M not covered by the waters of Gull Lake. Finally, this Court holds that nothing short of a legal transfer can validly convey the Griffins’ riparian rights of ownership to the Applicants.

In other words, for the purpose and circumstances of the present matter, it is this legal transfer that would satisfy the SRD that it is in a position to provide the Applicants with a consent under the Land Titles Act s. 89. [63] Although the parties did not raise this as an issue, what happens if the waters of Gull Lakes rise beyond the northern ATS boundary of the NE 25-40-1-W5M? This decision retains its vigour in that case, inasmuch as the Applicants will then have shoreline access, or riparian rights.

The Griffins will be bound by the wording of the original Crown grant because their land would be “covered by the waters of Gull Lake.” Similarly, the Applicants’ argument that Pitt and Johnson held that the ATS lines that are referenced in the certificates of title limit the accretion to which the riparian owners are entitled is consistent with this Court’s finding.

For example, if the waters of Gull Lake recede even farther, the Applicants and the Griffins would be limited to the lands described in the original Crown grants, and no more. [64] This is not a situation to which the Expropriation Act , R.S.A. 2000, c. E-13 applies. In Lanty v. Ontario (Minister of Natural Resources) (2006), 38 R.P.R. (4 th ) 275 (Ont. Sup. Ct. Jus.) , the court clarified the definition of “expropriate”, which is similar to

section 1(

g) of the Alberta act, as meaning: 162 ... to take land without the consent of the owner. Expropriation must be carried out by an expropriating authority in the exercise of its statutory powers. An expropriating authority is either the Crown or any person empowered by statute to expropriate land. [Citations excluded]. [65] In Eric C.E.

Todd, The Law of Expropriation and Compensation in Canada , 2 nd ed. (Scarborough: Carswell, 1992) at 20, the author used the following definition of “expropriation” in his text: The acquisition, pursuant to statutory powers, of property rights without the consent of the owner of those rights. [66] The Crown, in this case, is not seeking to expropriate the Accreted Lands. Furthermore, this Court is not in a position to expropriate the Accreted Lands for the benefit of the Applicants of its own motion.

There must be a statutory underpinning to this type of interference with an individual’s property rights: Rugby Water Board v. Shaw Fox , [1973] A.C. 202 at 215 . VII. Conclusion [67] As a result of the foregoing, this Court dismisses the Applicants’ application for judicial review. If necessary, parties may address this Court concerning costs, within 60 days of this judgment. Heard on the 25 th day of February, 2011.

Dated at the City of Edmonton, Alberta this 16 th day of June, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: Carla Marie Peterson For the Applicants Jodie B. Currie for the Respondent

APPENDIX ‘A’