Township requests a Judicial Review

Summary

While the proponent has received environmental assessment approval from the Ontario Ministry of the Environment, another approval they would need to construct their proposed hydro-electric generating station at the Bala falls is “Location Approval” under the Lakes and Rivers Improvement Act, which is administered by the Ministry of Natural Resources.

One reason we’re so lucky to live in Canada is that we have the Judicial Review Procedure Act. This enables government decisions to be reviewed by learned judges – who have the power to “set aside” decisions for which there is an absence of evidence or they otherwise find to be invalid. As shown below, it appears that:

• The MNR providing Location Approval would contravene the Public Lands Act.
• There may be inadequate evidence supporting the MNR’s recent declaration that the Crown land south of the north falls is too dangerous for public use.

Accordingly, the Township of Muskoka Lakes has filed an application for Judicial Review.

Detail

The Environmental Commissioner of Ontario has frequently documented concerns that the Ministry of Natural Resources makes decisions without allowing public comment or consultation.

The proponent’s current proposal (which they refer to as “Alternative 1A”) would block the traditional and historic portage over the Crown land south of the north falls, and this is not allowed by Section 65(4) of the Public Lands Act – which states that where a “portage has existed or exists”, a “person who obstructs, hinders, delays or interferes with the exercise of such right of passage is guilty of an offence”. That is, if the proposed generating station was built it would contravene the Public Lands Act.

For years, the public and the Township have noted the concern about not obstructing this portage and otherwise maintaining public access to the south side of Bala’s north falls. For example, we have noted our concern about this portage in Section 2.1.4 of our response to the proponent’s Environmental Screening Report (2009) and again in Section 2.2.2 of our response to the proponent’s Addendum (2012).

This concern has been more recently brought to the attention of the MNR, and their initial response was that they needed written historical evidence that the portage existed “prior to the initial Crown patent”. Even though we see no justification for this addtional requirement of when the portage was first used, we provided this written historical evidence that this portage has been in use since before the initial Crown land patent was granted. Also, we note that the:

• Proponent’s 2009 Environmental Screening Report confirmed the existence of this portage (Section 2.2.5.10).
• Proponent’s Stage 1 Archealogical Impact Assessment from their 2009 Environmental Screening Report notes that Purk’s Place is “on a portage in use for centuries.”
• MNR’s own Public Safety Measures Plan (2011) shows this portage, and acknowledges swimming and other in-water recreational uses of the area.
• Proponent’s own Land Use History report (2013) shows the portage as always having been south of the Bala north falls.

Also, we note that the current portage route over the Crown land is now the only route possible due to actions by the Crown (construction of the dams, blasting of the channels, construction of the Highway bypass).

Nonetheless, the MNR, and based on this response, the MoE, have repeatedly denied that this portage exists, despite the above.

In May 2013, the MNR unilaterally declared (photograph here) that using the power they have under Section 28 of the Public Lands Act that the Crown land south of the Bala north falls is suddenly somehow dangerous (the terribly tragic two drownings in 2009 had nothing to do with the use of the Crown land, would not have been prevented by the Crown land being restricted from public use, and were not mentioned in the MNR’s Bala Public Safety Measures Plan which was released two years later, in 2011).

We note that the MNR’s 2011 Public Safety Measures Plan made many recommendations, for example, about safety booms and signage. But even though it acknowledged the path of the portage through both a map and a photograph, the Plan made no mention of a safety concern for the public using this portage or for any use of the Crown land. We can only assume the MNR has now determined that they must agree that there is a portage which would be subject to protection by the Public Lands Act, so the MNR reasons that if the public is not allowed to walk on that land, then one could not portage, so there isn’t a portage, so the Public Lands Act would no longer apply. However, the Public Lands Act protects the portage whether the “portage has existed or exists” (underlining added), so we do not see how this Section 28 declaration would relieve the MNR of their obligation to continue to ensure this portage route is not obstructed. Furthermore, we do not see any evidence of why this declaration is justified or valid, such as a study showing such an access restriction would improve public safety.

That is, it appears that the MNR is proceeding with allowing the portage to be obstructed by the construction of the proposed generating station, even though this would contravene the Public Lands Act. This is one reason why the Township of Muskoka Lakes has filed an application for Judicial Review.

The court date set for the judges to hear this case is in late August 2013, and we will be eagerly awaiting their reasoned decision, perhaps as early as this September. We are pleased that such recourse to the courts is possible, given the appearance of political and lobbyist interference in the Ministries’ previous decisions. We are also very pleased at the Township of Muskoka Lakes Council following-through on the 2010 municipal election campaign committments that most of them made to take effective steps to help save the Bala falls.