Mayor seeks court judgement against Nishikawa

The Mayor of Muskoka Lakes claims a member of his council has breached the municipal Conflict of Interest Act and he’s now seeking a court judgement in the matter.

Muskoka News Watch has obtained papers filed at the Bracebridge courthouse which show Mayor Don Furniss has launched a civil proceeding against Councillor Ruth Nishikawa.

According to the Mayor’s affidavit, Nishikawa’s conduct at a September 16th council meeting during council discussions about whether she should pay costs after being found guilty of defaming former councillor Ron Brent, was in conflict with Section 5 of the Municipal Conflict of Interest Act.

The affidavit, filed by MacDonald Law on Friday, reads, in part: “Prior to consideration of the resolution on September 16, 2016, the Respondent was cautioned by the Clerk of the Township of Muskoka Lakes Cheryl Mortimer that she should consider whether or not she had a conflict of interest. The Respondent refused to declare a conflict of interest and took part in the discussion with respect to the resolution (in breach of section 5 (1) (b)). She continued to sit at the council table, but abstained from voting. By abstaining, by operation of the rules of Council, her vote was recorded as a “No” vote, such that abstaining deliberately constituted a “No” vote, contrary to section 5 (1) (b) and (c).”

The matter is slated to be heard in the Superior Court of Justice on December 12th.

Related Links: 

Breaking News: Muskoka District Councillor found guilty of defamation

Fellow councilors order Nishikawa to pay part of defamation judgment

 

Vandals hit Bala Falls power site: fence cut, disassembled and removed

Vandals have struck at Bala Falls removing a recently installed fence that was put up in advance of the pending new hydroelectric facility there.

Photos provided to Muskoka News Watch show that the fence was cut, unfastened and removed (bolts and bits of fence were left at the scene, see photos).

imageSwift River Energy Ltd. Vice President Frank Belerique says he suspected from the onset the fence was tampered with and he says the fence installer has since confirmed as much.

An opponent of the hydro project recently publicly chastised the company, insinuating that if Swift River couldn’t get a fence right, then how could they build a power plant, implying that the fence just washed away.

“The fence did not wash away or fall over because of poor workmanship or materials,” says Belerique. “The fence posts are still standing and perfectly plumb. The fence was vandalized, pure and simple.”

imageHe adds, “I am very disappointed that people would stoop so low as to break the law to help them spread a lie, but not entirely surprised. We do not know what happened to the missing fence or where it is.”

The cost to reinstall the fence will be about $4,200.

image 9Bala Falls vandalism

Save the Bala Falls drops land lease appeal against Muskoka Lakes Township

The group protesting a hydro plant at north Bala Falls will not take its land lease case against the Township of Muskoka Lakes any further.

Just three days after being ordered to pay court costs, Save the Bala Falls has abandoned its decision to appeal, as shown in court documents obtained by Muskoka News Watch.

On Wednesday, Justice Tom Wood ordered the group to pay $29,584.91 in court costs to the Township, adding the group’s legal action was not “public interest litigation.”

Bala FallsOn January 17, Save the Bala Falls filed intent to appeal, contending Wood erred in law and fact in regard to eight items in ruling against awarding them an injunction to stop any lease deal.

In his written decision denying the group an injunction, the justice stated he found the Save the Bala Falls argument flawed and that the Township lease would be in the interest of the municipality. In his decision was released on December 24, 2015, Wood stated:

“In conclusion I find that the Township of Muskoka Lakes has the authority to enter into the proposed lease, that it has exercised that authority in an appropriate manner, and that on balance to do so would be in the interest of the municipality. The application is therefore dismissed.”

Related Articles:

February 17, 2016, MNW: Judge orders Save Bala Falls to pay township Muskoka Lakes to cover court costs

January 27, 2016, MNW: Approved lease keeps park open to public

December 24, 2015: Bala Falls Update: Judge rules against Save the Bala Falls bid to stop lease

Bala Falls update: Judge rules against Save the Bala Falls bid to stop lease

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Bala Falls Update: MLA confirms stand against project

(February 11, 9pm MUSKOKA LAKES) The Muskoka Lakes Association (MLA) has made its opposition to the North Bala Falls hydro project official to Township, District and First Nations Council members. The development by Swift River Energy Limited (SREL) would see a 4.5-megawatt run-of-the-river waterpower facility built on the south side of the north Bala Falls (south side of the north dam), a facility the association believes is wrong for Bala and Muskoka.

A letter addressed to the Township of Muskoka Lakes Council today reads “Over the past few years the MLA has been intently watching the debate over the proposed hydro-electric facility at Bala Falls. While we have not commented in the past, we feel our members wish us to take a stance regarding this precedent setting development.”

While this may be the first time the MLA has voiced its opposition directly to local politicians in writing, it has questioned the project in the past to the province. In October 2012, the MLA wrote to Ontario Environment Minister Jim Bradley saying “our Board of Directors has discussed the issue extensively and concluded that without further review, the current project is not appropriate for Muskoka.” (To read that letter on the MLA website, click here). Today’s letter confirms the association’s position is unchanged, but its own resolution stating official opposition is new. The MLA Board met Thursday February 5 to discuss the proposed development and to decide on a course of action regarding the project.

The MLA board confirmed its opposition by passing a resolution that included the following*:

The Muskoka Lakes Association confirms its position that the Swift River Energy Limited (SREL) proposal to construct a hydroelectric facility at Bala Falls is an inappropriate and disruptive use for the businesses, residents, tourists and cottagers of Bala and the larger cottage area of Muskoka;

Further that the Muskoka Lakes Association notes the power potentially generated from this facility is not needed;

Therefore be it resolved that the Muskoka Lakes Association hereby confirms its opposition to the construction of the proposed Swift River hydroelectric facility at Bala and further that the Association’s opposition to this project be communicated to its membership, interested stakeholders, such as the Wahta Mohawk community, Williams Treaty Nations, local cottager associations, local municipal governments, local media and the Ontario Minister of Energy and the Premier of the Province.

The letter containing the resolution is signed by MLA President Michael Hart, and by the association’s Vice-Chair of the Political and Land Use Committee, George Boddington. It was copied to Wahta First Nation Chief Philip Franks, Beausoleil First Nation Councillor Karry A. Sandy-McKenzie, all District of Muskoka Councillors, the Moon River Property Owners’ Association, the West Muskoka Cottagers Association and to local media.

UPDATE FEBRUARY 12: In a message today to MLA members the association says it will also be communicating its resolution to the Energy Minister and the Premier’s office. Further, it noted, “The MLA regrets the emotional political schisms that have developed in the township, and particularly Bala, over this issue. Whatever happens to the North Falls, we hope all residents, politicians and community leaders will pull together to ensure the best outcome for the community. The MLA looks forward to assisting in that process.”

The MLA is also scheduled to make a presentation on water quality at the next meeting of District Council on Tuesday, February 17. You can view that presentation by clicking here.

This Friday, Township of Muskoka Lakes Council will receive a report from its CAO about the North Bala Falls Hydro Project recommending the possible make up of a working committee to look at construction mitigation, and a letter to the Premier about revenue sharing, among other items.

Photo shows proposed build site beside north Bala dam, taken December 9, 2014.

*February 12 Correction Note: Text has been corrected from original article yesterday that read “This is the resolution.” The letter circulated yesterday stated “The appropriate portion of the resolution is as follows:”. MNW regrets the error ).

Bala Falls Update: Approvals still needed, but hydro project will go ahead, says MNR

Approval still needed before work starts in Bala but hydro “project will proceed”, says MNR

Published October 19, 9:15am: While Swift River Energy Limited (SREL) has District of Muskoka permission to enter the proposed hydro plant site in Bala starting tomorrow (Monday), there are still some approvals needed before the company can enter the site.

Muskoka District Council set an entrance date for SREL of October 20 so work would not happen until after the Bala Cranberry Festival. But the Ministry of Natural Resources (MNR) says the District decision doesn’t give SREL a clear green light to begin work on that date.

“As the EA [Environmental Assessment] process is complete, SREL may proceed with the development of the Bala North Dam Waterpower Proposal,” says Dan Duggan, the MNR District Manager for the Parry Sound-Muskoka region. While saying the project will proceed, he did confirm that any movement on SREL’s part on the site is still subject to obtaining some remaining approvals. He did not elaborate on what SREL may be waiting on. Earlier this week, the MNR’s Jolanta Kowalski told Moose FM that any further authorizations fall under the approval of the Lakes and Rivers Improvement Act.

Engineer Karen McGhee, the project manager for SREL, issued this statement yesterday: “Swift River is working with the land owner, MNR, on how best to proceed with the on-site works. Given the sensitivities around this situation, we are not at liberty to provide any further detail other than to say Swift River is proceeding with its preparations to get shovels in the ground at the site as soon as possible.”

Related Articles:

Moose FM: Interview with facility design architect

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Conversation with Chief about Bala Falls did happen: MP Tony Clement

Wahta Chief Franks confirms talk with Clement in September re Bala Falls after sending PM letter last week stating Clement unresponsive

Published October 7, 2014, updated with Swift River reaction 6:10pm: Parry Sound-Muskoka MP Tony Clement today issued a statement in reaction to a letter charging he has failed to contact Wahta Chief Philip Franks to hear concerns about Bala Falls. In an October 3 letter to the Prime Minister and Ontario’s Premier (read letter here), Franks states Clement never called him in September despite media reports that he had. According to Clement, Franks now says the conversation did happen on September 13.

The statement from Clement’s office reads: “Parry Sound-Muskoka MP Tony Clement would like to correct statements being reported today in local media regarding Bala Falls and Wahta Mohawks Chief Philip Franks. On September 13, 2014 at 11:07a.m. MP Clement and Chief Franks spoke over the telephone. The conversation was at the request of Chief Franks. This morning, October 7, 2014, MP Clement`s office contacted Chief Franks by phone. He confirmed the September 13 conversation, and noted MP Clement had offered his assistance in the matter.”

Swift River Energy also responded to the letter today. In a statement, the company wrote: “we would like to take this opportunity to dissolve further miscommunication and achieve clarity on this issue. We have responded directly via a letter to the Wahta Mohawks to address the inaccuracies revealed today in correspondence.  All information provided to the Wahta Mohawks in the May 2012 Addendum to the Environmental Screening Review Report was indeed factual and current.”

Also reported today by the radio station, The Moose, is the letter District Council (click here to read it) had been asked to draft in September asking Swift River Energy Limited (SREL) to consider not acting on its October 20th entrance permits to the North Bala Falls crown site. The company plans to begin preparatory site work and has the permits in hand. At the District Meeting September 17, Huntsville Mayor Claude Doughty asked that the developer be requested to hold off on site work, saying his experience has shown him that the type of work that needs to be done could easily be completed “in five days.”

The request from Doughty came after a lengthy discussion, and after CAO Michael Duben explained that the entrance permits, which had already been delivered to SREL, could not come up for discussion again for six months. That’s according to the District’s procedural bylaw. Six months would push yet another District discussion (District has spent several hours of discussion about the permits at committee level and at at least two District Council meetings) about entrance permits to December 2014. In his delegation, Chief Franks had asked that District add a resolution to its agenda that evening that included a refusal of permits until Duty to Consult by the federal and provincial governments had been fulfilled, but no District Councillor made a motion to entertain the resolution. Instead, staff was directed to write letters to the developer and the province.

In that same September District meeting, Muskoka Lakes District Councillor Allen Edwards asked District to seek confirmation that the Wahta Mohawks have been consulted to their satisfaction.

 

Portage in protest followed by one woman vow to protect trees and occupy Bala Falls

Update September 3: Peggy Peterson vows she’ll stay until land safe from proposed Bala hydro build

Published September 3, 11:45am: Peggy Peterson, also known by her nickname, Muskoka Lorax, was in good spirits this morning after her first overnight camping on District of Muskoka and Crown land beside the north Bala dam.

The Huntsville woman says she’s there to protect the trees and water. Peterson says she was invited to join the protest by the Wahta Mohawks held last Thursday (see story below)  PeggybyBannerIMG_0035 and that’s when she decided to camp on the site until the Williams Treaty people arrive. Specifically, she has mentioned that the governmental Duty to Consult about the development on the site was never fulfilled with the Chippewas of Georgina Island.

Peterson has put up a makeshift fence on the District portion of the land. She adds she plans to hold a daily press conference at 4pm each day she is on the site.

From Portage In to Tent In: Wahta Mohawk portage protest followed by one woman call to occupy Bala Falls

Published September 1, 11pm: A Wahta Mohawk protest to protect an allegedly historic portage at the Bala Falls brought out about 80 people on Thursday to watch as canoes crossed Highway 169 — and today a tent was set up in a bid to Posters on bridge occupy bala falls portageallegedly start an occupation movement. On Facebook, Peggy Peterson, a tree activist from Huntsville who uses the nickname “Muskoka Lorax”, announced she was giving her first ever press conference today at 4pm at the dam site. She promised to post signs reading “Swift Energy Company You Shall Not Pass.” Peterson also promised to return tomorrow to declare the trees on the site a “Sacred Grove and under her protection until the William Treaty protectors can get there.” Peterson claims there have been no consultations with the First Nations and the Crown site is Treaty Land.

Occupy Bala Falls, Wahta MohawksPhotos submitted to Muskoka News Watch (MNW) show posters and a tent set up, but observers said no one appeared to be there. As of 11pm, the tent and signs were still there but there was still no sign of anyone actually on the Crown land site, and there are no further details. The MNW portage-in story follows.

 

Portage-In Protest draws canoes and crowds

A Wahta Mohawk protest to protect an allegedly historic portage at the Bala Falls brought out about 80 people on Thursday (some of them representing Wahta with many other supporters from the Save the Bala Falls protest group, while others said they were just curious bystanders). Traffic on Highway 169 was stopped for only 20 minutes as about a half a dozen canoes were carried across the highway from Moon River to Lake Muskoka. [Photos by MNW]

Chief Philip Franks and Wahta Council say the hydro plant proposed for the Crown land immediately beside the north Bala dam will eliminate a historic portage for the First Nation – and that the federal and provincial governments did not fulfill their “Duty to Consult” about use of that land (an allegation at least one provincial agency disputes as reported on Moose FM).

As the protest picked up steam, some people started chanting, ‘save the Bala Falls,’ which was quickly changed to ‘save our portage’. The day before, the spokesman for the stop the hydro plant protest group, Save the Bala Falls, had emailed supporters asking them to be there, but reminding them: “This event is about the Bala Portage, so no red T-shirts and no signs. We’re there to support the Wahta and the Bala Portage.”

Problems with the audio system made it hard to hear Chief Franks speak to the issue. Still, the protest message was clear: the Wahta Mohawks do not want a proposed small hydro project to proceed until the two governments’ “Duty to Consult” has been fulfilled. The protest, entitled the “Portage-In” event was announced on August 27, three days after Chief Franks sent letters to Prime Minister Stephen Harper and Ontario Premier Kathleen Wynne (on August 24) stating that:

“a new hydro-electric generation facility, proposed to be constructed on the Bala Portage, which is between the Moon River and Lake Muskoka, would eliminate the traditional and historic portage that the Wahta Mohawk and other First Nations have used for generations.”

Furthermore, the Wahta Mohawks say they want to restart the environmental assessment process and stop the District and Township of Muskoka Lakes from issuing permits “until it can be shown that the governmental duty to consult has been fulfilled.” A full explanation of the Wahta Mohawks position can be viewed at WahtaMohawks.ca.

Ministry says consultation did occur

As reported on the Muskoka radio station, The Moose, an official for the Ministry of Natural Resources (MNR) says the Wahta Mohawks were consulted during the environmental assessment and screening process. Documentation in the Ministry of Environment approved environmental screening report show Wahta received responses to concerns identified by Wahta in 2008. The environment assessment process continued for another six years until January 2013, when the Ministry gave the environmental assessment its seal of approval. Read “Green light for Bala Falls Hydro plant” http://muskokanewsarchive.com/opensession/green-light-for-bala-falls-hydro-plant/.

Keep reading for more background followed by a timeline relating to this issue

Where does that leave portaging and portaging heritage in Bala?

There’s no doubt the debate will continue as to the actual site of the portage (or what remains of it) noted by David Thompson during his brief Muskoka survey in 1837, as well as the portage route used by the Wahta Mohawks in 1881.

Since Thompson’s time there have been dams and a channel blasted out to create the south Falls, a railway, and road and a highway added, so it’s hard to know exactly what actual steps may or may not have been taken on the land remaining between the north and south Bala Falls (a man made island).

Consider the opposing positions: the courts have called it an alleged historic portage, and the developer refers to a ‘purported’ portage, while the Township of Muskoka Lakes referenced the Thompson’s portage in its court case to prove a portage existed. It has also presented heritage attributes of Tooke’s Landing (now the Moon River Dock) as being a put in for, quote: “early settlers and visitors portaging by canoe, hence the name ‘Portage Street’. This evidence could give credence to Portage Street as a historic alternative to the Thompson portage. The Wahta Mohawks, meanwhile, say the portage on the Crown land nearest the dam is the real route of their particular passage.

During the Divisional Court (and later Court of Appeal) legal actions by the Township, the court heard there were several alternate, and potentially safer access routes than on the Crown land site, and the justices stated evidence was lacking to support the Township’s position.

Presently, Alice Murphy contends the primary portage is the one that comes closest to the concrete wall of the dam on the Crown land. She also asserts this potential route – although access to that land is blocked by the MNR due to safety reasons – is the safest and/or the only truly public route (according to an interview on Hunter’s Bay Radio).

Alternate portage route in Bala, Bala's Mill Stream above Waterpower Generation plant
2 of 14 ‘portage celebrants’ paddling Mill Stream July 27

During that interview, she stated the Portage Street portage was not appropriate as it crosses private land, and she also defied anyone to portage using the Mill Stream under the highway bridge (shortly afterward, a group of paddlers did just that to stage what they called a “portage celebration” event.).

As part of an investigation into portage routes by Golder Associates (and paid for by Swift River Energy Limited (SREL), Golder concluded that historic routes would more likely be on the land owned by the

SREL portage route diagram, Swift River Energy
Portage route diagram (Source: SREL. For the full Golder report on portage routes see BalaFalls.ca)

Township of Muskoka Lakes (between the Crown land and the south Falls). In its report, the company pointed out what it refers to as a ‘purported portage’ along with two portage routes that it says could have been used even when the previous hydro generation plant was in place (including the one just north of the present south Falls that may be the oldest route and the one noted as a portage by Thompson).

Portaging possible in Bala: The good news is that portaging remains possible in Bala despite the controversy over the land between the north and south Bala Falls. Just this summer, some Pinecrest campers crossed over the highway where a new sidewalk and

portaging in bala, bala portage, news about bala, Wahta protest
Portage starting from Mill Stream under highway to Moon River dock on River Street – a portage celebration July 27

stoplights are to be installed by the District of Muskoka on the request of the Township. Anyone using that route will have to walk along the sidewalk (a walk which could have been averted if the Township had gone with the originally proposed sidewalk location directly across from Portage Street). Canoes can then be carried down Portage Street and put in easily at the Township dock on Moon River. The Mill Stream is another alternate that removes the need to cross Highway 169 completely. During times of low flows, such as summer, using the Mill Stream is an easy, short route between Moon River and Lake Muskoka.

Timeline of the portage issue

  • 1837: Explorer-cartographer and British-Canadian fur trader David Thompson notes a Bala portage in his diaries during his 1837 Muskoka survey.
  • 1873: Control dam built at north Bala Falls. Later in the 1880s another dam and channel created the south Falls.
  • 1881: Wahta Mohawks travel to territory west of Bala.
  • 2004: Ontario Ministry of Natural Resources (MNR) issues a call for Expressions of Interest to develop the north Bala Falls as a hydro site.
  • 2012: While Save the Bala Falls had previously expressed concerns about safety, (including for portaging), the group’s contention about a historic portage appears to have first been raised in Spring 2012 in reference to Thompson’s portage (as per the lobby group’s website).
  • In August 2013, The Township failed in its bid to get the Divisional Court to declare, among a list of eight requests (including one to block building of a hydro plant), “that the portage connecting the Moon River and Lake Muskoka for persons travelling on those waters (referred to in the file as the “Portage”) has existed and exists.” Among the Township’s evidence was an affidavit by the Township’s heritage consultant that referenced a passage from a book about the Wahta move to the territory near Bala in October 1881 (eight years after the first Bala dam was built). That evidence included a reference to a retelling of the Wahta Mohawks passage through Bala that refers to travel by train to Gravenhurst, and then by steamship to Bala and portaging below Moon River and proceeding by scow to Red Rock.
  • A new Chief and Wahta Council were elected in March 2014 (as such, they may not have been involved in discussions prior to the environmental assessment process approved in 2013). http://muskokanewsarchive.com/opensession/new-chief-and-council-for-wahta-mohawk-territory/
  • In July 2014, the Township had a second day in court to appeal, but the Court of Appeal of Ontario upheld the Divisional Court decision. Township of Muskoka Lakes Mayor Alice Murphy then requested the township Trails Committee report back to Council with a potential alternate portage route. It’s not known if that report will be received at Council before the upcoming election in October.
  • August 28, 2014: Wahta Mohawks join with stop the hydro plant protestors to protect what they claim to be their traditional and historic portage route.

Written by Norah Fountain with files from Norman Fountain

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Breaking News: Ontario Court of Appeal dismisses Township of Muskoka Lakes portage case

Watch for more details and full decision from the Ontario Court of Appeal regarding the Township’s second failed attempt to use a portage to block development of a proposed hydro facility. Township will now have to pay court costs.

Read Court Decision here: OntarioCourtofAppealDecisionJuly21

 

Bala Falls Update: Court of Appeal to release portage decision Monday

Bala Falls decision by Ontario Court of Appeal coming Monday: Township wants to declare a historic portage exists and that nothing should block it 

Published July 18, 1:40pm: The Court of Appeal of Ontario today said its decision regarding a portage at North Bala Falls — and whether anything, including a hydro plant, should be stopped from blocking it — will be released on Monday morning. The decision will be released at 10:30am and it is expected to be posted on the Court’s website by noon the same day. You can view that decision when it is posted by clicking here

Earlier, court officials had told Muskoka News Watch that a judgment could be made at the end of day of court, within a few days of the appeal hearing or it could take up to six months.

In its argument Monday, the lawyer for the Township suggested that the portage on the Township lands next to the Crown site slated for hydro development was the only portage available for people navigating from Lake Muskoka to Moon River and vice versa. Harold Elston told the court that it wants the court to rule that the Township wants a prohibition order stopping anything that could block or impede the portage — such as a boulder, a bulldozer or a hydro plant.

Bala Falls Update: Ontario Court of Appeal reserves judgment on Township of Muskoka Lakes Portage Appeal

No decision at Ontario Court of Appeal today for Township of Muskoka Lakes

Published July 14, 4:55pm: There was no decision today from the Ontario Court of Appeal hearing the Township of Muskoka Lakes appeal to protect a portage at Bala Falls. The Township is seeking a declaration that a portage exists (and existed) on the Crown land and the public has the right to continue to use it as a portage. As well the Township aims to prohibit anything that might impede a portage – including a power plant.

Court wrapped up at about 4pm after hearing submissions from all three parties to the appeal, the Township, the Ministry of Natural Resources (MNR) and Swift River Energy Limited (SREL). The Divisional Court that decided against granting the Township a Judicial Review chose to make its decision on the basis of what they heard from the Township lawyer Harold Elston only (they did not hear submissions from the other two parties). Justices Alexandra Hoy, Eileen Gillese and Peter Lauwers heard from all three today and took leave to deliberate the issues presented. They can issue a written decision at any time, and a court clerk has confirmed that could take days or as long as six months.

The only request from Associate Chief Justice Hoy was that the lawyers for the three sides involved today decide on costs before a decision is reached.

If the Court of Appeal decides the Divisional Court erred in any way, the Township may not have to pay the $17,000 it was to pay previously in court costs to the MNR for the lower court proceedings last August. At that time, the Divisional Court ruled that the Crown has the power to prohibit public use of Crown lands if safety was a concern.

Today, the justices and lawyers for SREL and the Township raised questions about whether the Divisional Court had ruled adequately on other sections of the Public Lands Act. Both lawyers for SREL and the Township pointed out the upper court could ‘walk in the lower court’s shoes’ to make a decision on all requests made by the Township (see earlier post for the list of requests).

Still, no decision was made today. Now the parties involved – and the taxpayers paying for the Ministry and Township roles in this judicial exercise – must simply wait.

References and Related Articles

 

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Bala Falls Update: Muskoka Lakes Township Argues Case Again for Portage at Ontario Court of Appeal

Township lawyers to argue Divisional Court was wrong to reject request for judicial review about Crown land site slated for hydro build

Published July 13, 12am: The Township of Muskoka Lakes is back in court in Toronto today. This time the Township is kicking its argument up to the Ontario Court of Appeal in its bid to block development on Crown land at north Bala Falls. Last August, the lower Divisional Court turned the Township down in its quest to protect the Crown land site slated for a hydro build, with one judge suggesting the Township’s argument was “somewhat disingenuous.”

Disingenuous defined: not candid or sincere, typically by pretending that one knows less about something than one really does.

At the time, Lawyer Harold Elston responded, “We don’t plan to be disingenuous. There is little room between the plant and the land; land people have used for centuries.”

Today Elston must successfully argue that the lower court was wrong in not granting the Township a full judicial review of the Ministry of Natural Resources’ (MNR) process that started back in 2003. It was over 10 years ago that the MNR announced the site in Bala would be made available for development as part of the government’s support for green energy. With a few exceptions, the Township’s wish list from the court is exactly the same as last August.

WILL THE COURT DECIDE TODAY?

According to the Court Clerk, the Court has set aside three-and-a-half hours to hear the Township’s renewed argument. The justices (expected to be Associate Chief Justice Alexandra Hoy; Justice Eileen Gillese and Justice Peter Lauwers) may give their decision at the end of today’s arguments or could reserve judgment for up to six months.

BACKGROUND: Comparing Township’s ask today of Township’s ask last August

Below is the list of what the Township is requesting from the Ontario Court of Appeal. The only new request (asking the court to quash the MNR’s ban on public use of the land) is highlighted in bold. The major one that is MISSING since the Township went to Court last August is the one that directly states the Township wants the hydro plant stopped: “an interim and permanent injunction prohibiting the issuance by the Minister of a Crown Lease to authorize the construction of a waterpower generation facility and a Water Power Lease Agreement authorizing the occupation of the power generation facility.”

WHAT THE TOWNSHIP WILL ASK FOR TODAY:

1) A declaration that the Portage has existed and exists over the Public Lands;

2) An order prohibiting the obstruction of or interference with the Portage by the Minster or any person with an interest in the Public Lands;

3) A declaration that less than 25 per cent of the Public Lands fronting on the Moon River between Bala Falls and Ragged Rapids are public lands;

4) An order that the frontage of the Crown Lands on the Moon River to a depth of six metres be set apart for recreational and access purposes;

5) An order prohibiting the obstruction or interference with the Moon River Frontage;

6) An order setting aside or quashing the Minister’s decision to ban public use of the public lands under section 28 of the Public Lands Act; and

7) Its costs of these proceedings.

For comparison, below is the list of what the Township asked for, and was denied, by the Divisional Court last August. Requests that are not being asked for again this time are highlighted in bold:

  1. a judicial review to be heard on an urgent basis
  2. a declaration that the portage connecting the Moon River and Lake Muskoka for persons travelling on those waters (referred to in the file as the “Portage”) has existed and exists over the public lands owned by the province (land identified in the file as Burgess Island)
  3. an order prohibiting the obstruction of or interference with the Portage by the Minister of Natural Resources or any person with an interest in the Crown lands (Note: This has been upgraded in the new ‘ask’ requesting the Court quash the MNR’s public use ban)
  4. A declaration that less than 25% of the lands fronting on the Moon River between the Bala Falls and Ragged Rapids are public lands AND an order that the frontage of the Crown Lands on the Moon River to a depth of six metres (referred to as the Moon River Frontage) shall be set apart for recreational and access purposes
  5.  An order prohibiting the obstruction or interference with the Moon River Frontage
  6. An interim and permanent injunction prohibiting the issuance by the Minister of a Crown Lease to authorize the construction of a waterpower generation facility and a Water Power Lease Agreement authorizing the occupation of the power generation facility
  7. The costs of the legal proceedings; and,
  8. Any further relief as counsel may advise and that the Honourable Court may appear just.

The result last time was the Township was ordered to pay court costs to the MNR of $17,000 and Judge Nordheimer stated: “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.”

Nordheimer continued: “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.”

The Ontario Court of Appeal will hear the Township’s argument against the lower court’s decision starting at 10:30am today. It is not known whether the justices today will ask to hear from the respondents, the MNR and Swift River Energy Limited (SREL).

References and Related Articles

 

 

 

Bala United Church asks Township to accept alternative hydro build plan

Ensure Margaret Burgess Park is left alone, asks Church, if hydro plant build goes ahead: MRPOA president says there’s no guarantee it will be untouched

Published April 21, 10pm: The Bala United Church, which neighbours Margaret Burgess Park in Bala, asked the Township of Muskoka Lakes Thursday to consider alternatives  should a hydro plant build at North Bala Falls go ahead.

Swift River Energy Limited (SREL)  has said it could avoid using the park if it could instead use the Precambrian Shield Parking Lot and lease township lands right beside the proposed build site. Right now its plan is to access the Crown site on the south side of the north Bala Falls from the Park on the north side using a bridge over the falls.

In his presentation Thursday on behalf of the Bala United Church, Ian Croft said as well as the letter it sent to Council (shared in the Council information package), they felt it important that the Council see more than a letter. He felt it needed to see the faces of Church members as well.

“We understand decisions and difficult and not all interests of the community can be simultaneously satisfied,” said Croft. He then went on to list the types of activities the church, other organizations and tourists use Margaret Burgess Park for, including weddings handled by the Church.

Croft also asked that the park be restored if it is used for construction, and that the Township keep Church council informed of any ongoing process as it relates to the park.

Following Croft’s delegation was Sandy Currie, president of the Moon River Property Owner’s Association (MRPOA). He requested the Township not allow SREL to use the Shield Parking Lot or the Portage Landing Parking Lot as their use could have a detrimental impact on the economy of Bala. Currie also suggested that there would be no guarantee that Swift River would not use the park should they be granted other lands to use. “There is almost a certainty that there will be damage inflicted on the park,” said Currie. He also expressed concern about the safety of water from the proposed plant’s tailrace that he explained would be directed toward the north shoreline of Moon River, and asked the Township to require the MNR and SREL to provide a mitigation plan.

Mitchell Shnier was up next, delegating for Save the Bala Falls. He said the fencing off of Margaret Burgess Park would be inevitable by SREL to ward off any potential liability. He also expressed conflicting concerns about:

  • a) dangerous large amounts of water being redirected from the south falls and pushed through the north falls; and
  • b) about too little water to maintain flows on the north falls should the plant be built.

Karen McGhee, SREL project manager, delegated next and told Council that the Park could be left untouched and offered a lump sum lease amount of $100,000 to use the Township lands and Shield parking lot for the duration of construction (Read Township hears SREL offer).

The Letter from Bala United Church is below:

April 4, 2014

Dear Mayor and Councillors,

We, the members of the Congregation of Bala United Church, urge strongly that no marshalling for a potential hydroelectric project occurs next to our Church. Our property is the closest, and therefore, the most immediately impacted by possible development of a hydroelectric plant.

Margaret Burgess Park provides both a natural setting and basis of an integral part of the life and activities at Bala United Church. This includes Vacation Bible School, annual Bazaar, inter church activities, and social functions including Church sponsored weddings. There are also, of course, weddings and other activities supported by other Churches, individuals, and organizations.

The use of Margaret Burgess Park is pivotal to the activities of Bala United Church and of the broader community of Bala including the hundreds of tourists and cottagers who visit the town.

Our first wish remains, that Township Council accepts Swift River’s alternative staging plan, marked in blue on the project update, and so leave the park alone.

That would meet the needs of the Church and of the broader Community and provide a great area from which to watch the progress of the project if it goes forward..

We ask as well, simply, that you talk to us, that you keep us informed along the way.

Respectfully, Ian Croft, Chair of Trustees & Brian McDonald, Chair, Bala United Church Council

Alternative Construction Map referred to in Bala United Church letter

In the Map: Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes to use the BLUE lands instead of the ORANGE (the Park).

Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes using the blue areas instead of the orange (the Park).

 

Muskoka Lakes Township hears Swift River alternate construction offer

SREL offers $100K to use Township lands other than park owned by Crown

Published April 21, 10pm: Bala United Church wants it. According to a survey, 79% of respondents want it. The president of the Moon River Property Owner’s Association doesn’t want it. But will the Township of Muskoka Lakes bite?

The ‘it’ is an alternative construction plan that would potentially protect public use of Margaret Burgess Park during the construction of the controversial hydro plant at north Bala Falls. It would also generate revenue for the Township.

On Thursday, Swift River Energy Limited (SREL), the developer for the proposed North Bala small hydro project, spelled out alternate construction plans for the project that would leave Margaret Burgess Park, beside the Church, untouched.

Instead of using the park and building a bridge across the falls, the developer proposes to use the Township lands beside the planned hydro building site (directly on the south side of the north Bala Falls), along with the Precambrian Shield parking lot diagonally across from the site.

“I am authorized today to offer $100,000 as a lump sum payment,” SREL Project Manager Karen McGhee told Council, “in return for leasing the Township land and using the parking lot during the expected 14-18 month construction period.”

Bala United Church delegates to council, asks park to be left alone; MRPOA president asks Council to not allow the use of other lands

McGhee’s offer came after a presentation by the Bala United Church in which church trustee Ian Croft said the church membership wanted to ensure the park beside the church would not be used during construction. Moon River Property Owner’s Association President (MRPOA) Sandy Currie stated he did not want to see the Township lands or parking lot (the alternate plan) used. (For more on Croft’s presentation, as well as presentations by Currie and Mitchell Shnier, see Bala United Church asks Council to accept alternative hydro build plan).

Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes using the blue areas instead of the orange (the Park).
Orange is Margaret Burgess Park, Green is Crown Land-Hydro Plant Site. Blue land beside green is Township land and Blue across highway is the Shield Parking Lot. SREL proposes using the blue areas instead of the orange (the Park).

“Essentially,” explained McGhee to Council, “we would stay out of the ‘orange’ areas and they would remain open for public use during construction.  There would be no need to remove trees in the Park, no bridge over the falls, and no crane in front of the falls and there would be reduced truck traffic through town.”

She added part of the proposal could be to re-grade and rehabilitate the Township lands used after construction. McGhee wrapped up by saying she had a problem with the flow diagrams shown by the presenters who came before her. “Those flows shown are from the spring freshet, and not from the summer season so they are misleading.” Finally she said SREL would like the opportunity to discuss and help consult on local bylaws that “we see unfairly targeting the project, such as half load and blasting [bylaws].

This is not the first time Swift River has tried to spell out alternate construction plans to the Township. SREL Vice President Frank Belerique wanted to talk mitigation plans at a Council meeting on October 18th but the Mayor told him he couldn’t talk about that. A discussion about safety ensued with McGhee answering questions she claims have been answered previously and repeatedly. All Councillors were present at that meeting.

SREL asked to talk mitigation plans with Council but meeting never happened

Ahead of that October 18 meeting, McGhee says Township and all Councillors were sent an email describing the mitigation plans and the desire to discuss a potential lease offer.  Read receipts attached to that email showed at least five Councillors did receive the email on October 15, says McGhee. She says she also met with two Councillors in person to discuss the alternate plans and one other Councillor did respond directly to the email. Yet on March 10, Councillor Phil Harding sent an email to CAO Chris Wray and Clerk Cheryl Mortimer asking. “Have we actually received a formal request that we have denied?”. He

Water crashing behind MNR public notice sign shows plant site on south side of north Bala Falls
Water crashing behind MNR public notice sign shows plant site on south side of north Bala Falls and powerful effect of spring freshet, April 21, 2013

was asking the question in response to a constituent who had requested he consider the alternative construction plans in order to “Save Burgess Park”. Harding had been in the October 18 meeting when SREL’s Belerique raised the desire for a meeting to discuss mitigation plans (as a follow up to SREL’s written request). Minutes from the meeting read:

‘Belerique reviewed the current status of the project and requested an opportunity to meet with municipal staff  to discuss options to reduce impacts to the community during the project construction.”

That request was never granted. Some Councillors have told Muskoka News Watch (MNW) and others that they can not have any discussion regarding the hydro plant because of a pending defamation lawsuit, yet that didn’t stop Council from discussing the project in a public meeting on January 21 — which focused on a design concept survey that included SREL’s mitigation plans.

Mitigation plan offered up in January survey asking for public input; survey likened to ‘blackmail’, says Councillor Nishikawa

Council included a discussion about the SREL Design Concept Survey under New and Unfinished Business in its January 21, 2014 meeting. The survey seeking public input was advertised widely in local newspapers (and also on MNW) in January to gather potential plant design preferences. In it, Swift River showed a map of the Crown lands it has been provided by the Ministry of Natural Resources to use for construction purposes. These lands include the areas in Bala known as Diver’s Point, Margaret Burgess Park, and the proposed hydro plant site. The survey asked people to say whether they would prefer other lands be used as opposed to the park for such activities as trucks driving through the park and equipment being on the site, blocking the popular park for public use during construction. During the January 21 meeting, Councillor Don Furniss said he had completed the survey himself.

Councillor Ruth Nishikawa shared what she thought about the survey. “The conversation that is happening says this [the survey] is blackmail,” said Nishikawa. “This council has not made a decision. People are asking if they are going to take the park away. They already have the lease on it. It’s misinformation again.” Mayor Alice Murphy complained that “there was no place in the survey to say you didn’t want it [the plant]” and that “in order to have option one, they want land from option two to dump all the dirt and mud so we’ll lose access and portage, and this is all to be done to protect the park.” Councillor Harding added he felt the survey was biased, saying “a decision could not be based on this survey, and Council’s responsibility is to listen to the taxpayers’ voices.” Furniss countered the survey wasn’t blackmail; rather, it was a choice.

Once the survey deadline passed and results tabulated, McGhee says the survey showed 79% of respondents would prefer the park NOT be used, and 21% chose the existing construction plan. She shared this information with council on Thursday (it has been public on SREL’s web site since early February). When asked by MNW about any comments provided with the survey, McGhee said that some who said they should go ahead and use the park expressed a lack of confidence that the Township would be willing to collaborate with the company. In fact, one comment stated: “good luck getting permission [from the Township].” Another stated they wanted the vacant Township lands protected, adds McGhee, noting there was opportunity for public input from anyone with any position on the proposed site. (You can view highlights of the Design Concept Survey by clicking here).

Entrance permit request back at District this Wednesday

Next step for Swift River is to meet with the District of Muskoka Public Works committee regarding its Entrance Permit application to access the proposed hydro plant site. The Township is represented on that committee by Councillor Harding. The legal representative for the Township is also on the agenda – an appearance four Councillors and one staff member have said was never discussed at Council, nor was any direction given for lawyer Harold Elston to appear this Wednesday. Elston has been the legal mind hired to continue to block the hydro plant so it is widely believed he will try and quash SREL’s request for a District entrance permit. SREL had been asked by District to give Township the opportunity to comment, which it did in February. According to McGhee, the item has never appeared on a Township Council agenda; and the answer she says she has received from Township Public Works is that it is ‘too premature’ to comment. An entrance permit on to District land off Muskoka Road 169 is up to District only to grant.

“Swift River eager to sit down with Council…share savings with Township”: Excerpt from October 15, 2013 letter to all Councillors

Below is a condensed version of the October 15 letter requesting a meeting with Council to discuss a mitigation proposal with Council before seeking further public input. To read the entire letter in PDF form, please see References after the letter.

Township of Muskoka Lakes, Attn: Mr. Chris Wray, CAO

Re: North Bala Falls Small Hydro Project – Request for Closed Door Meeting with Mayor and Council

Dear Chris:

This letter is in response to your emails outlining the pre-requisites for attaining a closed meeting with the Mayor and Council to discuss the North Bala Small Hydro Project. {Note that there will be no discussion regarding any pending lawsuit(s) or any topics under consideration of those lawsuits}.

As the Township is aware, Swift River is in the process of completing the construction drawings and attaining the required permits for construction. As the Township is also aware, the amount of land available for the construction of the project is somewhat limited. Our design engineers have, however, managed to devise a workable plan using the lands available that is financially viable.

That said, they have also noted that should Swift River be afforded the use of certain parcels of Township lands, the construction could be somewhat simplified.

Swift River has therefore requested to meet with the Council to discuss some options that may be available for construction that could be seen as win-win-win solutions for Swift River, the Township, and the community.

In particular, the lands we are interested in using include (see attached map):

1. The parcel of land immediately adjacent to the Project site that was transferred to the Township from the District in 2011 (PIN 48029-0638);

2. The Shield Parking Lot (PIN 48029-0634); and

3. The Township’s portion of the Portage Landing Parking Lot (PIN 48154-0628) and / or permission to use the MNR portion of this lot that is currently leased by the Township. Land parcels 2 and 3 would only be used for storage of trailers, equipment (including any equipment typically found on a construction site) and construction materials. There would be a requirement to fence the area to be used. Other than fencing, the lands would not be disturbed in any way. Any disturbances, including from fence posts, would be repaired prior to leaving the site at the end of construction. The use of these parcels of land for the Project would effectively reduce the requirements of storage in other areas in and around town such as the Crown land north of the North Dam commonly referred to as Margaret Burgess Park.

There are several options for use of land Parcel 1 that we would like to discuss at the proposed meeting. These would include site access, storage of materials, installation of tower crane, etc.

These activities would require tree removal and earthworks. It is also proposed that the Township consider working with SREL to deposit the rock from the Project excavation on this parcel of land for possible re-grading and landscaping. The use of this parcel of land for the Project would reduce the requirements of storage in other areas in and around town such as at Margaret Burgess Park. If permission was granted to re-grade Parcel 1 with rock from the excavation, it would also eliminate the requirement to install a bridge over the North Channel, install the tower crane downstream of the dam and truck materials through Margaret Burgess Park. Parcel 1 would be restored prior to leaving the site at the end of construction.

Compensation ideas are welcome. Possibilities include:

1. Lump sum lease payment for duration of construction based on number of months on site.

2. Construction work completed in lieu of cash i.e. the contractor could perform a construction task(s) for the Township as payment for the lease. This could include full re-grading and professional landscaping of Parcel 3.

3. A combination of 1 and 2.

4. Alternative proposed by Township.

With respect to the Township’s requirement to address the matters contained in CouncilResolution SC-18-28/07/11: This resolution is out of date. It was written over 2 years ago when Swift River was still pursuing Option 2 and awaiting an MOE decision on the elevation requests. Since that time there has been significant progress in the development of the Project, in particular:

· The MOE Minister denied all appeal requests for the Option 2 plan;

· The facility was moved, redesigned and re-evaluated. Ultimately Swift River issued an addendum to the original Environmental Screening Review Report (ESRR) for the Option 1 plan;

· The MOE Director denied all elevation requests made for the Option 1 plan;

· The MOE Minister denied all appeal requests for the Option 1 plan;

· The federal Canadian Environmental Assessment was cancelled by CEAA;

· The Department of Fisheries and Oceans has confirmed no permit is required;

· Swift River has undertaken further heritage studies on the area;

· The upstream booms have been moved and fencing has been erected around the dams by MNR; and

· Swift River has received Location Approval from MNR.

Swift River therefore respectfully submits that it has already fulfilled the requirements of the resolution in so far as they apply to the newly designed project with the exception of a few outstanding approvals, and a decision will need to be made on the leasing of these lands prior to us applying for these final approvals.

Swift River Energy is eager to sit down with the Township and discuss how to make theconstruction of this facility as smooth as possible. It is our firm belief that the use of these lands will significantly reduce the impacts to the community. In addition, it would make our work easier. Therefore, we are open to sharing some of the savings that could be realized with the Township.

It has been a long 8 years and we are nearing the end of this Project. Now is the time to start working together on the finer details to ensure we “get it right” for everyone involved.

We await your written confirmation of a closed door meeting with the Mayor and Council on October 18th. Please let us know before noon on the 17th so we can make the appropriate arrangements.

Karen McGhee, North Bala Small Hydro Project Manager

cc: Township of Muskoka Lakes Mayor and Council

References and Related Articles:

MNW April 21, Bala United Church asks Township to accept alternative hydro plant build

October 15, 2013 Letter requesting meeting from SREL to Township: 2013-10-15 Request for closed meeting with TML

April 8, 2013 Letter from SREL to Township re ongoing issues: SREL_Letter_to_Township_re_ongoing_issues

Bracebridge Examiner, January 22, 2014: Swift River Survey Irks Muskoka Lakes Mayor

Moose FM, January 13, 2014: Swift River launches stage one of design survey

Moose FM, April 9, 2014: Court of Appeal will hear Township portage argument

MNW, April 9, 2014: Legal leap forward: Township wins right to appeal

MNW, August 20, 2013: Exclusive: Superior Court says public safety trumps other parts of Public Lands Act

About Muskoka News Watch – consider donating to keep information flowing: Muskoka News Watch exists primarily on donations. If you appreciate us keeping you informed, consider tossing a few dollars our way via the Donate Button on the top right hand corner of our Home Page. Thank you!

Legal leap forward for Township of Muskoka Lakes: wins leave to appeal; updated with SREL response

Updated April 9, 2.55pm: Reaction  from Swift River, court gives rough timelines on when an appeal could be heard

Updated 12.55pm: Swift River Energy Ltd (SREL) says it was disappointed to hear the Ontario Court of Appeal has decided the Township of Muskoka Lake’s argument to protect access to land at North Bala Falls can be heard again in court.

Today, the project manager for Swift River, Karen McGhee, issued this statement:

“Sadly for area residents, the appeal of that decision represents yet another opportunity for council to use taxpayer money and resources on what appears to have become the mayor and council’s pet project – fighting the North Bala Small Hydro Project.

That said, we are still moving forward with the Project. SREL has requested to delegate to Township council this month to propose alternative construction staging options that could allow Margaret Burgess Park to remain fully open to the public during the construction period.  A recent poll conducted this past January indicated that 79% of respondents preferred us using Township’s lands as opposed to the park’s Crown lands.”

Muskoka News Watch has also asked all Township Councillors for their reaction to the news that they have been granted leave to appeal the Divisional Court decision of last August.

How long could an appeal take?

A clerk with the Ontario Court of Appeal says the decision to grant leave to appeal to the Township of Muskoka Lakes was made by Justices Feldman, Rouleau, and Hourigan, and that “99 per cent of the time, the written decision simply states whether leave is granted or refused: rarely is a reason given.” The clerk says depending on when the Township files its intent to move forward, and whether counsel for the Township brings a motion to expedite the appeal, the appeal could happen as early as within the next three months or, even more likely, “anywhere from five to eight months” from the Township’s filed motion to appeal.

Original Post:

Breaking News: Leave to appeal lower court decision granted by the Ontario Court of Appeal: Township can now move forward in bid to protect public lands including proposed hydro site at north Bala Falls

Posted April 9: 11.30am: The Township of Muskoka Lakes has announced that it has been successful in getting the opportunity to appeal an earlier court decision regarding crown land at North Bala Falls. In a release today, the Township states “in a decision dated April 7, 2014, the Ontario Court of Appeal granted the Township’s motion for leave to appeal a decision of the Divisional Court of Ontario.”

The Divisional Court had refused the Township’s application for judicial review, which sought recognition and protection of the public’s right to portage across public lands between Lake Muskoka and the Moon River and to access the Moon River for recreational purposes from those public lands. The Court of Appeal will now consider the strength of the historic rights afforded to the public to enjoy Crown lands and the use of adjacent waters, under Ontario’s Public Lands Act.

The Township says it expects that the appeal will be heard later this year (assuming the Township will decide to move ahead with the appeal action). Further details are not available at this time.

Muskoka News Watch learned last week that the Ontario Court of Appeal had gotten to the Township request and was in the midst of reviewing the lower court’s decision. It’s not known how long it took to reach the decision on April 7 and no details as to why the decision to grant leave was made have been released. The granted Leave to Appeal has not yet been posted by the Ontario Court of Appeal.

Reaction from Swift River Energy Limited (SREL)

The project manager for Swift River says they plan to issue an official statement soon, but says the company is “disappointed that this decision will yet again cause further delays and increased costs.”

References:

Here is the story on the decision the Township has now received the green light to have appealed.

MNW, August 20, 2013: Exclusive: Superior Court says public safety trumps other parts of Public Lands Act

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Muskoka Lakes Mayor announces expansion of Bala hydro plant to Premier

Mayor Murphy trumpets plans to province to upsize one Bala hydro plant while trying to block another; Councillors left out of the loop

Intentional attack on one developer could unintentionally hurt the other, too. Commentary by Norah Fountain. Posted Monday, April 7, 10am.

Mayor, we have a problem. Not only have you once again bypassed your full Council in making a Township water power announcement to the Premier, your actions relating to Bala’s millstream hydro plant seem to echo what you’ve criticized those ‘other’ hydro plant proponents for allegedly doing (public consultation not meeting your standards, not enough  consideration of safety or environmental impacts, and no notice before announcing potential hydro plans). Not to mention your lack of understanding of built development versus short-term construction space needs as displayed in your email, but we’ll get to that later. Or not. Those who read your email will see for themselves what I believe are gaps in your logic. So let’s get to the opening paragraph of your premature missive.

Mayor email sent to Premier April 2 made public April 5

On Saturday an email written by you was made public by the chair of the Township Heritage Committee (a private citizen). The email written by you on April 2 was sent to Ontario Premier Kathleen Wynne, MPs Tony Clement and Lisa Raitt, and to Ontario Ombudsman André Marin. It informs them that the Township “welcomes the opportunity to contribute to green energy initiatives” and has “recently moved forward with an expansion of the Burgess 1 hydro station as well as approvals for a number of solar power installations.”

What expansion, the public might well ask?

The private operators of the plant (KRIS Renewable Energy) on Bala’s mill stream want to more than double the flow of water on the mill stream and through the plant from 4 cubic metres per second (cms) to 9.5 cms. According to four Councillors reached April 6 (a fifth would not comment on a Sunday), plus a review of minutes, a discussion of increased water flows has never occurred in Council chambers (although there is mention in a February report from the Chief Administrative Officer (CAO) that a discussion might be requested in future).

In a letter from CAO Chris Wray on March 20, the Township asks some stakeholders of the Muskoka Water River Management Plan (MWRMP) to give their input on a take water request by April 15. The letter was apparently a bid to gather information before making recommendations to Council. As such, it’s fair to say Murphy’s email to the province on April 2 jumped the gun a bit. While the green minded might appreciate her zeal for wanting to show how the Township is living up to its strategic plan that states green energy is to be embraced, her reasons for sending that email are problematic.

Why? Because Murphy uses the potential expansion news announcement for one private developer while continuing to advance her personal pet project – trying to ensure another private developer fails in its green energy effort (she may not realize she may be hurting KRIS in the process as well as it appears to be trying to follow the correct amendment request method). Furthermore, the Mayor is essentially taking actions connected with the KRIS Renewable contract that she has criticized in the past about the Bala Falls small hydro project proposed by Swift River Energy Limited. They include:

1) Not enough public consultation. Those who live on the millstream and have buildings beside it say they’ve not been contacted about the potential plant expansion downstream from them. Surely they deserved a heads up before Murphy’s announcement to the Premier – and of all people, Murphy should know better as she (along with others including myself) criticized the provincial government for not giving Bala residents a similar heads up notice about plans to release the North Bala Falls for development.

2) Insufficient environmental assessment. I’m no expert — and neither is the Mayor, but diverting more than double the water past the dock in front of the Templeton house, and down the quiet millstream and out into Moon River may have some environmental impact. In years gone by, the owners before Algonquin Power broached the idea of blasting out some space under the little bridge connecting the town dock to the path up behind the LCBO to increase water flow. It didn’t fly. Of course, times have changed, and so has blasting technology, and KRIS should have the opportunity to present an environmentally safe plan if it feels it’s warranted – and if signatories to the MWRMP agree. As for that ‘other’ plant, environmental assessments have been conducted and approved by the Ministry of Environment.

3) Suggestions of influence.  One supporter of Save the Bala Falls told Muskoka News Watch that the ‘fix was in’ from the beginning for Swift River to be awarded the right to develop the North Bala Falls site, although it’s never been made clear how that alleged ‘fix’ was carried out. In the Burgess Generation plant case, KRIS Renewable includes investors who oppose the North Bala Falls small hydro project, and one of the principals donated to the Mayor’s campaign. Now, there’s NO problem with that (KRIS didn’t even exist at the time of the last election) but the optics are not the best for the Mayor. Especially as Murphy was involved in the oversight of the bid process: for example, she took part in the site inspection held for companies bidding on the project.

Fortunately, there’s an easy solution to the three ‘do as I say, not as I do’ examples given above. Murphy should get out of the waterpower business. Step aside, and let Township staff do their jobs, including giving a full report to Council to get a resolution supporting upsizing the water through the Burgess 1 Generating Station – if that’s what Council believes is a good move. According to Councillors who responded to messages over the weekend and this morning, the Mayor didn’t inform Council of her letter before sharing any expansion plans with others.

Councillor Don Furniss said he was unaware of the letter, adding, “Council has never had increased water flows for the Burgess Plant on the agenda. It was never discussed or approved by council.” When Councillor for Ward A (where the Burgess plant resides), Ruth Nishikawa, was asked, her response was she doesn’t conduct business on Sundays. A message was left for her asking her the question again this morning. Councillor Ron Brent stated “no one on Council, including the Mayor, should be writing to the Premier about Township of Muskoka Lakes without Council knowing about it.” Note: Councillor Kruckel is away on holidays, and understandably, was unable to respond.

At least, now all Councillors have had an opportunity to be let in on the plan made public Saturday — even if they would have preferred hearing about it first from the Mayor than from a reporter. Again.

A copy of Murphy’s email to the Premier, MPs and the Ombudsman is below.

From: Alice Murphy

Subject: Bala Falls Land Impacted is 124x Greater in Size than 2004 MNR Site Release Subject to EA Approval

Date: 2 April, 2014 6:38:43 PM EDT

To: premier@ontario.ca

Cc: Tony Clement, lisa.raitt@parl.gc.ca, Ontario Ombudsman <info@ombudsman.on.ca>

Dear Premier Wynne

The Township of Muskoka Lakes recognizes the intrinsic value of our watershed and welcomes the opportunity to contribute to renewable energy initiatives that are safe and respectful of our recreational and heritage based economy. In this regard we have recently moved forward with an expansion of the Burgess 1 hydro station as well as approvals for a number of solar power installations.

Over the past six years I have met with you on numerous occasions, outlining the community concerns relating to the proposed hydro station at Bala Falls. At each of these meetings, echoed many times through correspondence, I emphasized that the fundamental issue was that of scale–the proposed project was simply too large for the very small site released by the MNR, occupying virtually all of the land.

It is therefore deeply disturbing to read your recent correspondence to Mr. Ylanko, forwarded to my attention and attached, in which you stated that the proposed hydro station would “occupy a similar footprint as the former station”. Unfortunately this statement is materially incorrect.

To be clear, the proposed station would have a footprint over 16 times that of the former station, being only 256 square feet in size. Further, the developer is to be granted a 40 year lease for the exclusive use of all crown parkland at Bala Falls and threatens to re-purpose this parkland for heavy vehicle construction purposes if heritage-designated land, owned by the municipality, is not provided to the developer for clear cutting of all trees and acceptance of the blast waste rock. The release of this additional crown land was not raised in the original Environmental Assessment, and only mentioned in passing in the Addendum thereto, absent of any public process or mitigation efforts.

To recap, 50 years ago there was a hydro station that occupied 256 square feet on a very small lot, 0.07 hectares in size, successfully co-existing with navigational, recreational and tourism opportunities at this location. Now the proposed structure would occupy 4,448 square feet, a growth factor of 1653%. Further, with the active support of your government, there would be an additional withdrawal of .33 hectares of public land from public use, representing all of the crown waterfront land in Bala. This additional land totals 31,700 square feet, bringing the total footprint of the proposed project 124 times the size of the crown land released by the MNR in 2004 and subject to public input.

Just like the gas plants, an oversized hydro project in the heart of Bala would be the wrong structure in the wrong place. I would ask that any withdrawal of public lands from public use is through a public process, transparent to all, in accordance with the provisions of the Public Lands Act. I would further welcome the opportunity to discuss consideration of these concerns at your earliest opportunity.

Respectfully, Alice Murphy

References:

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 Feature picture at top left: View of Moon River and Mayor’s dock from north Bala dam

Muskoka Lakes Mayor accuses Oakville of secretly funding Bala Falls hydro plant; Oakville says no

Charges Oakville considers an “unacceptable hydro plant” an acceptable Oakville investment’;  and begs province to “not put lives at risk” in letter to Premier and MP.

Posted Feb. 14, 3.15pm: Muskoka Lakes Mayor Alice Murphy has again tried to drag the Town of Oakville into ongoing controversy surrounding a proposed hydro plant at the north Bala Falls. In a letter written on Township of Muskoka Lakes letterhead and distributed via Twitter to Ontario Premier Kathleen Wynne and federal Transport Minister Lisa Raitt, Murphy claimed Township had learned that Oakville may be the silent financial backer of the hydro project. She proceeds to write that “As we all know, a gas plant was politically unacceptable in Oakville but an unacceptable hydro plant in Muskoka is apparently supported as an Oakville investment.”

Oakville Mayor Rob Burton was quick to respond to Muskoka News Watch (MNW) inquiries with copies of his own correspondence to the Premier and MP Raitt on Monday, in which he states emphatically,

“With respect to the reference to the Town of Oakville in the 5th paragraph of this letter (Murphy’s letter), please be advised that the Town of Oakville is not “…the silent financial backer of this project.”

Meantime, MNW was polling Township Councillors on how aware they were of the letter and its allegations. Four Councillors – Ruth Nishikawa, Phil Harding, Donelda Kruckel and Allen Edwards — say they had been advised of the letter. Nishikawa and Kruckel said it had been discussed at council at a ‘past meeting’ and Kruckel said she had been surprised to learn that Oakville was involved. Harding responded he was “advised that the Mayor was writing a letter. The general contents were discussed; the specifics were not in question.” Harding adds the letter has his full support as a Councillor concerned about navigation on our waterways. He said he was not aware of the Twitter post. A question to the Township Chief Administrative Officer requesting clarification about which meeting date the discussion about the letter had occurred went unanswered.

Council split on purported Council discussion

It was a completely different story about whether Council knew about the letter from Councillors Don Furniss, Jean-Ann Baranik and Gault McTaggart. They say they never saw the letter and it was not discussed in Council (Brad Burgess and Ron Brent are on holidays and could not be reached for comment).

Furniss was especially surprised by the contents of the letter as the Oakville Mayor had stated previously and publicly that he does not want to be involved as an investor in a green energy project viewed as a hostile project. Furniss adds he’s “seen nothing or heard anything factual that shows that Oakville has become an investor in the Bala Falls small hydro project.”

(In October 2013 in a Toronto Star article, Mayor Burton spoke about how he offered to Murphy to consider investment in the project to work out a solution but she was not interested. He stated in the article that Oakville was not interested in pursuing the project after speaking with Murphy, who was also quoted in the article. Read Bala hydro project roils Muskoka and Oakville Mayors.)

“I can tell you that if you read the minutes of the meetings, I don’t see anything in there that shows that this letter was discussed,” continues Furniss. “My position and several other councillors’ positions with the Mayor is that if she is sending letters on Township stationary under the Mayor’s name to higher levels of government that those should be reviewed by Council before they are sent,” says Furniss. “She doesn’t agree with that but you can see what happens when she sends them: they are riddled with errors.”

Furniss continues: “This isn’t the first time she’s sent a letter and in the past she’s been called on it by other councillors. She feels she can send whatever she wants, whenever she wants, on Township letterhead. I have a real problem with that. Certainly I don’t have the ability to get township letter head to send letters out.”

Furthermore he says the Mayor’s letter contains information that is completely wrong. “The Mayor’s claim that the project’s final operating footprint is 16 times larger than the original hydro plant on the site is absolutely false. Where does she get this balderdash?” Furniss warns the Mayor’s ongoing letter campaigns will only make things worse with the province. “If the Mayor continues to ignore requests of Council to have opportunity to review and comment on letters of policy to higher levels of government, it could get to the point, in my opinion, where the Township has become a leper in the eyes of the province.”

Councillor McTaggart agrees with Furniss’ concerns and emailed this response:

I do not approve of the letter for several reasons:

a- as it was sent on TML letterhead “office of the mayor”and signed as “mayor” it has the appearance of being the thoughts and position of the township and council. Without council agreement and resolution It should have been sent on Alice’s personal stationary and signed without the position of mayor.

b- the reference to Oakville is misleading. Oakville has indicated that they are not an investor, and even if they were, what right would TML have to prevent them from investing?

c- misleading errors! The proposed facility will not be 16 times the footprint of the previous power facility. I believe that the power generated will be about that multiple of the original.

This is not the first time that a letter has been sent to senior government members without discussion and review by council, in spite of requests of councillors to see and review letters that will be sent to senior government representatives.”

References (please click on images to view in larger size – and clear type): Below left is the Tweet issued by the Mayor which also contained her letter to the Premier and MP Raitt. The Tweet from the Mayor complains that the Ontario Ministry of Natural Resources is now signing off on matters of federal jurisdiction. Below the Tweet is a copy of the letter in which she implies Oakville is backing the hydro project, followed by Oakville Mayor Rob Burton’s response to Muskoka News Watch and his letter to Premier Wynne as a result of MNW asking for his reaction to the Murphy letter.

Related Articles:

Dear MNW Subscribers, Some of you have complained Murphy’s letter to the Premier and Lisa Raitt is too hard to read. You’re right. It is, as it is only a picture of what Murphy displayed online. If you want to explore the letter further — and Councillors’ responses to it, click here to read a new sidebar article published February 16 entitled Who is Zooming Who, a Critical Look

Mayor tweetMayor Letter Feb 7 2014

Burton EmailEmail to Premier from Mayor Burton following MNW ask for reaction.

Oakville Mayor, Rob Burton, Muskoka Lakes Mayor accuses Oakville

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Feature Picture: Murphy turning back on cameras while trying to halt test drilling at proposed Bala hydro project site, June 2013.