Updated with Official Township reaction
Updated July 21, 2:50pm: The Township of Muskoka Lakes has issued a release about today’s decision by the Ontario Court of Appeal. Please read the post below this update for a full article on the court decision regarding the Township’s appeal of parts of the Public Lands Act, including one section that gives the Ministry of Natural Resource authority over public use of Crown land.
The Township’s release reads (verbatim):
Mayor Murphy and Members of Council wish to advise that the Ontario Court of Appeal has released its decision, upholding the Minister of Natural Resources’ decision to ban the public’s right to portage across a historic canoe route at the Bala Falls.
Mayor Murphy stated that “the Township appreciates the Court’s timely decision on this important matter. Given the Court’s decision, we will be seeking to identify an alternate canoe portage route to promote safe and unimpeded portaging between Lake Muskoka and Moon River”.
The Ontario Court of Appeal released their decision earlier today.
Township of Muskoka Lakes loses judicial review; court costs to be awarded to MNR and Swift River Energy; SREL says enough now, let’s move on
Published July 21, 11:43pm: The Township of Muskoka Lakes has lost its bid to block a hydro plant in court. While blocking the plant was not on the Township’s specific wish list this time at the Ontario Court of Appeal, Township lawyer Harold Elston told the court that Township was seeking a prohibition of anything impeding the portage, including a bulldozer, a boulder – or even a hydro facility.
Today’s decision, released just one week after the hearing last Monday, July 14, rejected the Township’s argument that it wanted to protect a portage that is believed to have existed historically – a route that has changed drastically over the years since the coming of the railways, the building of the dam in 1873, and the construction of Highway 169 through Bala.
To read the entire decision, please click here: OntarioCourtofAppealDecisionJuly21
Swift River Energy Limited (SREL) Vice-President Frank Belerique told Muskoka News Watch this morning that his company is pleased with the decision, and at first glance he says the case was rejected for pretty much the same reasons given by the Divisional Court last August.
“We hope to put this behind us and plan a successful project,” says Belerique. “It’s enough, let’s move on. This was all a guise to further frustrate our project plans.”
In court last Monday, SREL lawyer Neil Finkelstein explained to the justices that the prime motivation for the judicial review was to frustrate the project. The Township did have specific language about seeking an order to block the project last August when it sought a judicial review from the lower Divisional Court but removed it this time explaining it “was incorrect” to include it in the Township’s argument. The Divisional court ruled safety trumped other sections of the Public Lands Act being disputed by Township. (Read that decision and articles from last August by clicking here).
As part of its argument last Monday, the Ministry of Natural Resources (MNR) argued that while the Minister may have a range of actions it can take as part of the legislation, choosing the lowest level would not be wise considering the potential for liability. The remarks came in response to Elston saying that while the Ministry may have been correct in applying the safety provision, he believed it did not apply it correctly — and that a lot of learning and action had resulted after two drownings at the Bala Falls dam in 2009. He later contradicted that statement telling the justices he did not have enough information to answer specific questions about conclusions reached following that tragedy.
Elston also stated that closing the Crown site to public use would mean the loss of the single portage route between Lake Muskoka and Moon River. There are, in fact, at least three alternate portages: one high water and low water portage on Margaret Burgess Park as specified in Hap Wilson’s guiding book, Wild Muskoka; another one using the Mill Stream that does not require a paddler to carry a canoe across Highway 169; and another down Portage Street to the Moon River dock.
Note: The Court of Appeal did make one statement that opens a small crack of opportunity should the Township wish to pursue it. Here’s that one section of the decision that says the high court does not endorse the Divisional Court reasoning but does not see any reason to dispute it as it is not necessary to question the lower court’s interpretation.
Next steps for the Township Council? It could seek to take its case to the Supreme Court of Canada. While court costs to be paid are now $8,500 to the MNR (on top of the previous $17K awarded for the first go round in court) and $8,500 to SREL, it’s unclear how much the Township has run up in legal bills – not even for the portage argument alone.
References and Related Articles
About Muskoka News Watch – consider donating to keep your Muskoka info flowing: Muskoka News Watch exists primarily on donations. If you like being informed, please toss a few dollars our way using the Donate Button on the top right hand corner of our Home Page (you can use Credit Cards or Debit). Thank you!