The proposed project would make all this too dangerous to continue …

May 192017
 

Summary
The operation of hydro-electric generating stations can and has drowned those nearby. The unprecedented situation for the proposed hydro-electric generating station at the Bala falls would create similarly unprecedented liability for both the proponent and province of Ontario as they have failed to address the dangers the proposed project would create. For example:

  1. Both the intake and tailrace flow of hydro-electric generating stations create deadly currents and turbulence. Yet the proponent has stated they would not provide warning upon starting (which would often be at about noon on summer days), even though the Ontario Ministry of Natural Resources and Forestry (MNRF) requires warning before flow is increased to the Moon River. This would demonstrate negligence and incompetence, which are two important tests for liability.
     
  2. The proponent would not be able to provide adequate warning through signage as they would have no authority to post signs on the private and municipal shoreline both upstream and downstream. This would leave most points of entry to the area without warning signage.
     
  3. The MNRF and proponent know that access to the Moon River could not be restricted due to the requirements of Section 3 of the Public Lands Act.
     
  4. The general public, including local shoreline property owners and their guests and those using the municipal docks would be accessing the Moon River, which is a navigable waterway, by exercising their riparian right of access. That is, people would be accessing the waters made dangerous by the proposed project without trespassing. The public can legally access and be in these waters, and have a right to expect that others would not purposefully make these navigable waterways dangerous.
     
  5. In fact, the proponent would be encouraging in-water recreation directly adjacent to their proposed project as they would build a portage directly south of the proposed facility.
     
  6. The proposed facility would create dangerous currents and turbulence outside of the proponent’s proposed downstream safety boom. The dangers created by the operation of the proposed facility would therefore be undetectable by the public. Such deception would not comply with the Canadian Dam Association’s public safety guidelines.
     
  7. The Lifesaving Society has recommended a safety plan be presented to stakeholders before any further approvals are issued, but the proponent refuses to do this. In fact, the proponent has not replied to the last ten letters we have sent or hand-delivered to their offices.
     
  8. The proponent would have liability as they would have exclusive control of the situation; they would be the owner of the facility, have Occupier status for the land on which it would be located, and would be solely responsible for the design, construction, operation, and maintenance of the facility.
     
  9. The provincial Crown would have liability as they are the owner of the land, and the MNRF has refused to require that the proponent show how or if they could safely operate the proposed facility.
     
  10. As provided by the Lakes and Rivers Improvement Act, the Crown has responsibility for;
    • Approving both the location, and the plans and specifications of the proposed facility.
    • The safe operation of the proposed facility.

    The Crown therefore owes a duty to the public that they would be safe around this proposed facility.

  11. The dangers created by the operation of the proposed facility would be to all users of the nearby areas in both Lake Muskoka and the Moon River, as;
    • The existing flows would be brought hundreds of feet closer to the known in-water recreational areas
    • These flows would start without warning.
    • Rather than being natural flows down water falls which can be easily observed and judged, the flows from the proposed facility would be unexpected as they would be extend outside of the proposed safety boom, and they would be undetectable by the public because the flow would be released underwater.

Clearly, the construction of this proposed facility would create a foreseeable risk, yet the required care has not been taken, given the known circumstances.
 

Detail
In 2008 the tailrace flow from the Wilson’s Falls generating station caused the drowning of a 16-year-old boy. This confirms that hydro-electric generating stations are deadly to nearby in-water recreational activities.

But compared to the Wilson’s Falls generating station, the proposed hydro-electric generating station at the Bala falls would create much more risk to the public and liability to; Swift River Energy Limited, their investors, and to the province (that is, to us taxpayers). Here are some reasons why:

  1. It would be unprecedented to construct a hydro-electric generating station in the middle of an existing, accepted, and very popular in-water recreational area. Trains, and before that, steamships, have brought tourists to the Bala falls for at least 150 years. Yet the proponent has not taken any corresponding extra steps to determine whether or how such a facility could be safely operated.
    • In contrast, the Wilson’s Falls generating station has been in place for over 105 years, in an area not very accessible to the public and which has never been popular for in-water recreation, so minimal public safety measures are expected and are more acceptable.
       
  2. The water made dangerous by the proposed generating station would extend outside of the proponent’s proposed downstream safety boom. That is, the proponent would intentionally misinform the public of the extent of the water they would make dangerous. This would create liability to the proponent and to those that would facilitate the proposed generating station’s construction.
    • Even now, more than eight years after the Wilson’s Falls drowning, there is no downstream safety boom at the Wilson’s Falls generating station, so the extent of the danger there is not conveyed.
       
  3. The proponent would:
    • Not comply with the MNRF’s Public Safety Measures Plan requirement that the public be warned before increasing flow to the Moon River.
    • Not comply with the Canadian Dam Association’s guidelines for public safety around dams.
    • Ignore the recommendation of the Lifesaving Society that a safety plan be presented to the public before any further approvals are issued.

    This would create liability for the proponent and for those that facilitate the construction of this proposed project.

    • We are not aware of any such safety requirements for the Wilson’s Falls generating station.
       
  4. The proposed generating station would have over ten times the flow of the Wilson’s Falls generating station, so would be far more dangerous.
     
  5. The proposed generating station would often start at about noon on summer days. This would suddenly, and without warning, create an extreme danger, just when it would be most likely that people would be nearby in the water.
    • The Wilson’s Falls generating station operates in a run-of-river mode, so its operation typically changes only by incremental amounts.
       
  6. Due to; the many private shoreline land-owners in close proximity, the many legal points of entry to the water, the popularity of the Moon River for all types of in-water recreation, and the greater distance away from the proposed generating station at which the water would be made dangerous, it would not be possible to install warning signs in enough locations to adequately inform visitors of the dangers.
    • In contrast, the area surrounding Wilson’s Falls is much less accessible, with much less private land ownership, so that the approaching public could be adequately warned.
       
  7. The proponent plans to build a portage. This would encourage in-water recreation directly adjacent to the fastest and most turbulent and dangerous water their proposed generating station would create.
    • There is no such encouragement for in-water recreation near the Wilson’s Falls generating station.
       
  8. Bala is a popular tourist destination, as literally bus-loads of foreign tourists regularly visit, and there are many amenities and attractions for visitors. Also, the only through road for 50 km around is right on top of the Bala falls so even more people visit Bala because they have to pass through. Many foreign tourists would not be able to comprehend warning signs. The problem is even greater as hydro-electric generating stations create hidden and unnatural dangers not obvious or detectable by the public, and these would begin without warning.
    • Being difficult to access, tourists rarely go to Wilson’s Falls, so there is less need to warn those unfamiliar with the area.
       
  9. The downstream end of the proposed generating station’s tailrace excavation be approximately 75′ from the structure, so the water would be especially turbulent there. This area, far from the proposed generating station and outside of the proposed downstream safety boom, would therefore be especially dangerous.
    • The end of the Wilson’s Falls generating station’s tailrace excavation is less than 14′ from the building, so the danger would be more easily associated with the building.
       
  10. The province is facilitating this proposed project being built on land owned by the province of Ontario, without any knowledge or plans that this proposed project could be operated safely. This would result in the province also having liability.
    • The province does not own the land at or surrounding the Wilson’s Falls generating station.

  2 Responses to “The proponent – and the province – would have far more liability”

  1. It is so simple. The power is not needed.

  2. Excellent letter! If only our government would read it and abide by it. They seem to have blinders on courtesy of Swift River.
    This all seems like a very dangerous experiment. A very costly and painful one at that. And worse still, it can’t be undone. If they go ahead with this monster, we’d have to live with it forever. There is no justification for this. None!

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