by Mitchell Shnier, Save the Bala Falls
The Township of Muskoka Lakes initiated a Judicial Review in 2013 as the proposed hydro-electric generating station at the Bala Falls would contravene two Sections of the Public Lands Act:
- Section 65(4), which requires that portages not be obstructed – and the proposed generating station would obstruct the traditional Bala Portage. As requested and required by the MNR, we were able to locate historic documents confirming not only that the portage was south of the Bala north falls, but that it was established before the original Crown land patent was granted. That is, as a result of our claim that the Public Lands Act does not permit the MNR to obstruct the Bala Portage, the MNR requested information, and we provided this information, yet they simply ignored and denied what we provided.
- Section 3, which states that if less than 25% of the shoreline frontage of a body of water is Crown land, then the publically-accessible Crown land shoreline cannot be further reduced. And in fact, on the Moon River, there is less than 25% of Crown land frontage, and this would be further reduced by the proposed generating station. The Township was able to show that the MNR did not follow their own required Policy PL 3.02.01 in determing Crown land frontage. However, the MNR simply ignored this policy and presented an incorrect calculation to the Court.
Unfortunately, the end result was that despite the MNR contravening these Sections of the Public Lands Act the Court ultimately decided that Section 28 of the Public Lands supercedes the others, and if the MNR unilaterally decides the lands are unsafe or that the Minister wishes to build a hydro-electric generating station anyways, they can.
While this decision was most disappointing, it did bring the issue of obstructing the Bala Portage to the attention of the Wahta Mohawks, whose lands are downstream on the Moon River, and who first arrived using the this portage – so it is part of their heritage. The Wahta found that the proponent had provided incorrect information to them, as the information from the proponent had stated that the impact of the proponent’s current proposal on the portage would be positive, when in fact the Bala Portage would be obstructed. Such important and incorrect information would therefore be a failure of the government’s Duty to Consult. As a result, the Wahta sent this letter.
As has been determined by recent decisions by the Supreme Court of Canada, the Honour of the Crown requires that the Duty to Consult be fulfilled. While parts of process can be delegated to proponents, it is the responsibility of the governments to meet the Duty to Consult. And a fundamental part of this is to provide correct and clear information relating to the proposed activity and adverse impacts.
While the Duty to Consult is most directly a federal and provincial government responsibility, the Wahta have asked the municipal government to postpone or rescind a permit recently granted to the proponent as this would permit all the trees to be cleared from the proposed construction site. As the proponent does not yet have all required federal and provincial permits to proceed, it would be a terrible waste to needlessley ruin such a historic location if ultimately the proponent determines they cannot or otherwise will not proceed.
For more information, see the Recent Articles at SaveTheBalaFalls.com