Exclusive Update: Includes Court decision transcript in Township of Muskoka Lakes vs. MNR
Updated August 22: To read decision released in writing by the court today dismissing Township’s case, please click here: Corp of the Township of Muskoka v Minister of Natural Resources
UPDATED with cost figures: August 20, 4.20pm: Original Update posted August 20, 2pm: The Township of Muskoka Lakes has reached agreement about costs it will pay to the Ministry of Natural Resources (MNR) for taking it to court. Those costs have not yet been confirmed by the court, but sources say they could total almost $20,000. Yesterday the Ontario Superior Court of Justice dismissed the Township of Muskoka Lakes’ application for a Judicial Review into the MNR’s handling of the proposed North Bala Falls hydro site. In their decision announced yesterday, Justices Ian Nordheimer, David Aston and Paul Perell said the Township had failed to make its case.
Despite Township Mayor Alice Murphy’s assertion in a quote to The Moose yesterday that it was “quite disappointing” the issue of public lands and the public’s right to portage was not even heard, the lawyer for the Township, Harold Elston, argued exactly those points for about five hours. He argued:
- the Act protects portage rights
- the Act protects public access and less than 25% of Crown Lands are accessible to the public on Moon River. Specifically, Elston argued there was only 13% frontage available to the public between the Bala Falls and Raggedy Rapids dams or even on the entire Moon River
- the MNR abused its authority in placing public notice signs on Burgess Island in a bid to block public access
Elston lauds efforts to protect falls, expresses preference for ‘Option Two’ Elston also explained that the Township has never swayed from its efforts from day one to protect public access and portage rights, pointing to the 2005 resolution by the previous Council under Mayor Susan Pryke. He stated that the Option Two position considered for the hydro plant – which would move the plant away from the south side of the North Falls and still allow for public access and the portage – was the preferred option as opposed to the original Crown land site known as Option 1. Option Two became dead in the water after the new Council was elected in 2010. Elston noted that Swift River Energy Limited pulled the plug on that option a year later.
Elston was the only lawyer the justices decided to hear from. At the start of session just before 11am, the justices stated they had done their homework and felt the hearing could be wrapped up in one day. Elston agreed. Five hours later, the court issued its decision.
Decision rendered – full transcript below
Just before 3 pm, the justices took a brief recess and came back to state they were ready to deliver a decision. They said it would not be necessary to hear from the defendants, the MNR and Swift River Energy Limited.
At about 3:30, Judge Nordheimer read this statement to the court:
“The Township’s expressed objectives in bringing this application are to ensure the government’s plans for the construction of this hydroelectric facility do not inhibit public access to the waters off of the dams and to ensure that a claimed portage over the dams is preserved. There does not appear to be any dispute that the effect of the remedy sought by the Township would be to preclude the construction of a hydroelectric facility at least as it is currently contemplated.
In my view, this application cannot succeed. Under Section 28 of the Public Lands Act, the Ministry may prohibit possession, occupation or use of public lands.
Pursuant to that authority, the Ministry has issued a notice that prohibits any public access to the Crown lands that are at the heart of the issue in this application. The Minister made that determination because of express concerns about public safety and after commissioning a public safety measures plan. These safety concerns have existed at least since 2009 when there was a double drowning in the waters off of these lands. The Township suggests that the use of Section 28 by the Ministry is, in essence, simply a disguised attempt to thwart the Township’s efforts to maintain the portage on the Crown lands pursuant to section 65.4 of the Public Lands Act, and to maintain public access to the waters off of these lands pursuant to Section 3 of the Act. The Township also submits that the decision issuing Section 28 was unreasonable because there were other means to address safety issues short of a complete ban of public access to the Crown lands.
In my view, the Township has failed to establish that the Ministry’s decision issuing a notice under Section 28 was unreasonable. There can be no reasonable dispute that there are safety concerns with dams that include rapids, waterfalls and dams among chose other hazards. It may be that there were other alternatives to address those safety concerns but the fact that the Minister chose between different options does not constitute their decision to adopt one option over another as unreasonable.
In particular, a complete ban on public access to the Crown lands in circumstances where two people have already lost their lives cannot be shown to be so manifestly unreasonable as to justify interference by this Court. I would add there is also insufficient evidence that a Section 28 notice is being used as a guise to advance the government’s desire to ensure that a hydroelectric facility is constructed on these Crown lands. While that may ultimately be a result of the notice, there is a difference between the consequences of a decision and the objective of a decision.
There is a companion submission that Section 28 should not be allowed to thwart the legislative directives contained in other sections of the Pubic Lands Act, such as the two sections the Township relies on: Section 65 dealing with portages and Section 63 dealing with public access.
There is nothing in the legislative scheme to suggest that Section 28 is to be so restricted. The section is not subject to any other provision of the Act nor or are the two sections upon which the Township relies expressly to prevail in its submission.
Indeed it would seem that Section 28 might be designed expressly for situations such as appears here where despite the government’s policies to protect portages and public access at bodies of water other pressing concerns dictate that the policies be rendered subservient to those other pressing concerns. Public safety is an objective that often will trump other policy goals.
Consequently I see no basis for this Court to interfere with the notice made under Section 28. While that is sufficient for the purposes of disposing of this application, I would add the observation that I have considerable difficulty with the submission that the words, quote, ‘sold or otherwise disposed of’ in Section 65.4 should be interpreted to include a lease of Crown. Land. We do not see anything in the Act itself to suggest such an interpretation. It would be contrary to demonstrate since many sections of the Act including Sections 65 1 and 2 themselves expressly use the term, quote, lease. If it had been the intention of the legislature that a lease of Crown land should constitute a disposition for purposes of protection afforded by Section 65.4, it would have been a simple matter for the legislation to include the term lease within that section as it did with Section 65.1 and 2.
In light of my conclusions it becomes unnecessary to address the various other issues raised in the application. The application for Judicial Review is dismissed.”
Court orders speedy cost settlement
On hearing the decision, the lawyers for the Crown pointed out that they hadn’t had an opportunity to deal with the Township regarding the issue of costs. The justices responded, “We think it is a good idea to afford counsel the opportunity to work out the question of costs but we are not disposed to giving you a few days to do that. Hopefully you can work that out this afternoon or come back tomorrow afternoon to work it out. In that case, we will meet back at ten am tomorrow.”
Cost of the battle for Bala Falls nears quarter million when including costs for heritage work mostly for Bala designated sites (corrected)
Court today was not necessary. The Township agreed to pay costs yesterday afternoon. While those costs have yet to be confirmed by the court, sources say the legal costs paid to MNR was about $17,000 (updated 4 pm). Counsel for Swift River said they would not seek costs (they joined the legal action voluntarily).
In the most recent quarterly financial report, the Township notes it has already spent about $90,000 in 2013. Between 2010 and 2013, the Township spent $175,000 plus the $17 today totals about $192,000. The spend on heritage, which has provided information integral to the Bala Falls battle (Elston referred to the Conservation Review Board and heritage information yesterday in his submission) has totaled over $62,000. Give or take a few dollars, it appears Council this term alone has spent upwards of $254,000 (corrected figure) on Bala Falls related issues.
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