Report of Research, Field Investigation and Survey of Robert D ...

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 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 Lake
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 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 findings. 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.
This now makes the fourth Alberta ruling that supports the concept that accretions are limited to
the township grant entity to which the accretion has attached. Although the Andriet case might
have confused the issue a bit, none of the Courts have departed from following the concept.
Paragraph 63 seems to say if the water level rises again then these properties which have
seemingly ceased to be riparian will regain that status, once the water returns across the quarter
section boundaries, making them factually riparian.
6.3.10 Volcanic Oil and Gas v. Chaplin (Tabs 25 and 26)
This is a landmark case involving accretion and the question: if a parcel is not riparian, but due
to natural forces the water invades across the parcel separating it from a body of water, is that
non-riparian subject to loss by erosion. The trial court and the Ontario Appeal Court (Tab 26)
ruled that encroachment by water onto a non-riparian parcel did not constitute true erosion.
The Ontario Supreme Court, Appellate Division reversed the decision on the basis that the facts
presented were inadequate to prove that the water body had crossed the non-riparian boundary
onto the plaintiff’s land.
In a sense, this case is the exact opposite fact set to the four Alberta cases, except that this case
involves erosion instead of accretion. Once the water crossed the rectilinear boundary the
natural boundary ceased to exist and the linear one takes precedence, even if part of the former
up-land was now under water.
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