The proponent’s proposal versus what we now know: justifies, nay, requires cancellation

Summary
The proponent’s plans do not meet too many important commitments they made in their original 2005 proposal, for which they were awarded this opportunity through a competitive process. The proposal process required the proponent to agree to bear their own costs and not make claims for reimbursement if the Ministry of Natural Resources determined that the proponent provided “inaccurate, misleading or incomplete information”, which the proponent certainly has, as summarized below. We believe the Ministry of Natural Resources is therefore obligated to follow through on their requirements and act in the public interest by cancelling this proposed project.
 

Background
The Ministry of Natural Resources initiated a proposed project to construct a hydro-electric generating station at the Bala falls through a formal Competitive Site Release process. The MNR issued a Request for Proposals in 2005 and Swift River Energy Limited submitted a proposal later that year.

The MNR’s 2005 Request for Proposals
The land the MNR was contemplating releasing for this development was a 70’x100′ Crown land site directly south of the Bala north falls. The MNR was well aware that any development of the site had to be compatible with existing uses, as Section 3.3.2 of the RFP required that responses (emphasis added): “Demonstrate consideration for scenic flows, public access for traditional uses and continuity of business in the local area.” As the RFP was actually for two different sites, it continued with special requirements specific to Bala: “For the North Bala Dam, demonstrate consideration of the extensive aesthetic, recreational, social and economic (i.e. tourism) values in the area of the proposed development.”

Clearly, the MNR knew that any development in Bala had to be compatible with the very public nature and unique uses of the location.

To be sure that the proposals also described the proposed development, Section 3.3.2 of the RFP also stated: “Proponents are requested to set out, in a concise manner, their proposed development of the MNR dam site. The description should include conceptual information regarding the type of development being proposed at the dam site, the operating strategy and the feasibility of site development.”

That is, the MNR:

• Required proposals present the appearance of the proposed powerhouse.
• Required proposals describe the operating strategy (that is, when would the station’s operation be stopped and re-started, for example when the flow of water available from Lake Muskoka was less than required to run the turbine).
• Knew that it may not even be feasible to develop the site.

The MNR was clear about the costs associated with pursuing this opportunity, as Section 2.2 of the RFP stated: “The successful proponent(s) will be responsible for … Complying with all federal and provincial legislation and completing all necessary environmental studies.” and “The selected proponent for each dam will need to complete or meet the applicable environmental assessment requirements set out in the Environmental Assessment Act.”.

The MNR was also very clear the proponent would be responsible for these costs, as Section 4.1.6 of the RFP stated (and Section 4.6 (iv) repeated): “The parties will bear their own costs associated with or incurred through this RFP process, including … other activities related to complying with the requirements of the RFP;”

The RFP was well-written, protecting the government from proponents that don’t provide what they proposed as:

• Section 4.3.3 of the RFP stated: “Proponent should note that the Ministry … reserves the right to rescind any contract awarded to a proponent in the event that the Ministry determines that the proponent made a misrepresentation or provided any inaccurate, misleading or incomplete information in its proposal or during contract negotiations.”

• Section 1.3 stated: “The Ministry makes no guarantee of the value or volume of work to be assigned to the successful proponent.”

• Section 4.4.1 stated: “The Ministry may revoke its selection of the proponent if the proponent fails to satisfy any applicable conditions, including the terms in the RFP.”

• Section 4.6 (ii) stated: “… neither party shall have the right to make claims against the other with respect to the award of a contract, failure to award a contract or failure to honour a proposal;”

The proponent’s 2005 proposal versus what we now know

Direct quotes from the proponent’s proposal, dated July 5, 2005 (described what is now referred to as “Option 1”)	What we now know
The entire development would be on Crown land.	Yes, this is still true for the proponent’s current “Alternative 1A” proposal, so it is fair to compare the proponent’s 2005 proposal with their current plans.
Swift River is aware that the Bala site has substantial beauty for the local population, both permanent and summer residents, and is a tourist gem for the people of Ontario. This is clearly recognized in our proposal.	Good, they claim to understand the area, let’s see what they would actually do.
Our proposal incorporates the safe public use and enjoyment of the site, attractive landscaping …	No, there would be no attractive landscaping. As shown in the bottom diagram here, the entire site would be concrete.
We have thoroughly reviewed the Request for Proposals (RFP) and are confident that our proposal reflects the aesthetic concerns and values, local sensitivities and historic nature of this site.	No, this is the site of the historic Bala Portage, and the proponent would permanently eliminate and obstruct it.
We have also worked to optimize the project to maximize generating potential while providing sufficient compensation flow for tourists and to maintain a fish habitat.	No, the proponent’s construction plans would completely block off the Bala north channel for ten months. This would be bad for the fish habitat at the bottom of the Bala north falls, would not comply with the Muskoka River Water Management Plan, and not comply with their environmental approvals. During the proposed operation, as shown by the red area at the bottom figure here, a miniscule 6% of the flow would be shared by the Bala north and south falls. By international agreement, 50% of the flow of the Niagara River must flow over the Niagara Falls, why any less for Bala.
A viewing platform on top of the below ground plant provides scenic views of the lower river …	No, the drawings and renderings provided so far show the plant would not be “below ground”. Instead the 56′-wide poured-concrete building would block the view down the Moon River, as would the fence required for the long retaining wall they want to build.
The power facility would be operated as a ‘run-of-river’ power plant … Obviously for reasons of public safety, there will be some safety restrictions placed on public access near specific areas at the intake, powerhouse and dam. However, these restrictions will not generally diminish the public’s enjoyment of the area for swimming, boating, fishing, picnicking and hiking.	No, instead of stopping operation when there was insufficient flow for the turbine, the proposed station would operate in a cycling mode and without warning, the treacherously turbulent water from the proposed generating station would automatically begin at about noon on more than ⅓ of summer days, just when people would see it was safe to be wading in the usually-serene water at the base of the Bala north falls, which would be just a few feet away. No, the proposed generating station would also make boating dangerous, as the fast water from the tailrace would be directed towards the only public docks on the Moon River.
Swift River’s philosophy with respect to the socioeconomic values of the Bala site is represented graphically in the preceding fold-out page [which includes the text]: Preserving our scenic legacy Creating opportunities for recreation Respecting our cultural heritage A natural approach to landscaping When completed, the North Bala Dam and power plant will be a landmark of technological modernity, natural beauty and cultural preservation.	If this “legacy” is the 16′ x 16′ generating station that used to be on the Crown land site (and was small enough that it did not obstruct the Bala Portage), the proposed generating station would instead be 70′ x 100′, filling the entire Crown land site with concrete. This doesn’t preserve anything. No, the proposed generating station would obstruct the Bala Portage, and make the long-time and very popular wading at the base of the Bala north falls too dangerous. It would make hundreds of feet of the only public shoreline in Bala too dangerous to access. It would make boating at the Town Docks on the Moon River (which are the only public docks on the Moon River) dangerous. This would destroy, not create opportunities for recreation. No, The proponent would like to cut down 100 trees on the adjacent Portage Landing site and fill it 15′ high with blasted rock to facilitate their proposed construction. This is the location used for the Bala Portage, so destroying it insults, not respects cultural heritage. No, there would be no landscaping, the proposed station would be all concrete, to within inches of the north and south Crown land property boundaries, and within a few feet of the side property boundaries.
We will employ today’s most advanced engineering and design technologies to create a much more discreet facility than the original Bala Power House, (built in 1917 and demolished in the 1960’s).	No, the proposed generating station would have a footprint over 6,900 ft², compared to 256 ft² for the generating station previously on the site – this is over 25 times larger. This is as much larger as a house is compared to a garden shed. This would not be discreet, it would be a monstrous industrial building.
Our intention is to harmonize the architecture of the new facility with the natural environment of the site by installing a low-profile power house built mostly underground (bunker-type). Its roof will be below road level and only some 5 ft above ground level …	Figure 2.4 of the proponent’s 2005 proposal included the rendering below, showing that their proposed building’s roof would be below the level of Muskoka Road 169. But the drawings recently produced by the proponent’s engineering design company show the roof would actually be 28′ above Muskoka Road 169 – that is, three storeys above the road. And the building would tower 55′ above the Moon River – that’s six storeys. So, no, this wouldn’t harmonize anything, this would be completely insensitive to the area.
Our commitment extends beyond minimizing the visual impact of the facility. Swift River is keenly aware of the importance of this site as an outdoor recreation area for tourists and local residents. A key element in our development of the site therefore will be to enhance the natural landscape. Through tree plantings, improved maintenance of public green spaces and the addition of floral gardens, walking trails and rest areas furnished with benches and waste receptacles, we will create an appealing, park-like environment that people will enjoy visiting.	No, there would be no tree plantings, floral gardens, or walking trails, as the site would be all concrete. No, there wouldn’t be anything “park-like”.
Consideration of Continuity of Business: In summary, new technology, sensitive development of the site, proper and full consultation in the community will contribute much needed green power and community economic and social benefits. It is expected to be a win/win situation for all involved.	No, the proponent has not consulted the business community for negative impacts. In fact, when gathering input for their Economic Impact Study, the proponent did not even ask area businesses about negative impacts. Certainly the two businesses directly adjacent to the proposed construction entrance off Bala Falls Road (Purk’s Place and Lilybird / Simpler Times) would be destroyed, as the area would be a construction site for two years.

 

Conclusion
It is now ten years after the proponent submitted their proposal and the proponent has still not released the information needed to determine how far their plans would fall short of meeting the requirements the MNR stated and the commitments the proponent made. But it is now clear that the proponent:

• Would not meet important public safety, area business continuity, aesthetic, and public recreation requirements.
• Has made these changes because they think they can get away with being greedy, they want it all, and the government is just handing it all to them, saying it is a “proponent-driven process”, and apparently the area’s and public’s needs don’t need to be considered.

We are very impressed that the MNR’s 2005 RFP was well-written and clear, and that they committed to “work with Swift River Energy to help ensure they … meet their commitments to the public as identified in their North Bala Dam Proposal released on July 5, 2005”. As this has not happened, as a result of the proponent not meeting their commitments:

• The Ministry of Natural Resources can and should cancel this proposed project.
• The proponent would have no claim for their costs incurred, as it was the proponent’s decision to withhold (and they are still withholding) the information needed to show that their own proposal (and information provided since then) has been “inaccurate, misleading or incomplete”. And by submitting their proposal, the proponent agreed that they have no “right to make claims against the other”.