Really, now MNR uses the PLA to stop us from using portages

aaaaaa

Four red signs warn the public that use of the property is prohibited under section 28 of the Public Lands Act. Even standing and looking at the falls from this patch is not allowed. (Several people have been warned, but no one has been fined.)

 

Portage ban provokes a very Canadian fight

Renata D’Aliesio

Bala, Ont. — The Globe and Mail

Do we have the right to portage our canoes over ancient paths, or can the government stop us in the name of modern

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Allan Turnbull canoes near Bala Falls: Local residents are opposed to plans for a hydroelectric plant at the falls. (Matthew Sherwood / For The Globe and Mail)

Allan Turnbull plunges a wooden paddle into the Moon River, slowly steering his gold-coloured canoe toward the cascading Bala Falls. It’s a bright, blistering day, but the water is still a touch cool, swollen with the remnants of a late thaw and chilly spring.

Legendary cartographer David Thompson once followed this path, one of scores he explored by paddle and boat before Canada became a nation. Thompson recorded the 1837 trip in a journal, Mr. Turnbull explains over the river’s roar, his voice soon swallowed by the sound of water thrashing against the Canadian Shield.

If this was a little more than a year ago, we would stop Mr. Turnbull’s beaver-embossed canoe right here, just south of the north falls, and step out onto Burgess Island. We would heave the vessel over our heads and portage some 80 steps up a gravelly path to cross a two-lane road and enter Lake Muskoka.

But that’s illegal now, the well-worn route banned by the Ontario Ministry of Natural Resources in May, 2013 for safety reasons – the province says the waterfall, rapids and dam pose a risk to swimmers and canoeists. The government’s move has ignited an intrinsically Canadian legal battle over whether the public has the right to portage. The Ontario Court of Appeal will hear the case on Monday.

 

 

“It’s ridiculous, Canoeing is iconic in Canada. It’s how the country was opened up. “
Local resident Allan Turnbull

“It’s ridiculous,” Mr. Turnbull says of the portage ban, his canoe out of the water and back on his lawn. “Canoeing is iconic in Canada. It’s how the country was opened up.”

Canoes are carved into how we picture ourselves and our colossal country. They were the vehicle of aboriginal fur traders and European map makers, of 16th-century explorer Jacques Cartier and the late prime minister Pierre Trudeau.

They are our summer camp memories, our weekend escape. When the world’s most powerful leaders descended on Ontario for the G8 summit four years ago, we showed them our canoes.

Few would debate that the canoe helped build Canada, but does that mean historic portages should be protected for all time at the expense of modern-day ambitions, such as growing the green-energy industry? Indeed, the Township of Muskoka Lakes’ portage battle is intertwined with a fervent fight against the Ontario government’s plan to build a hydroelectric power plant at Bala Falls.

In asking Ontario’s top court to protect the public right to portage, the township could in turn succeed in quashing the project it and many of its residents have long opposed.

“What happens here is going to impact not just the province of Ontario, but it will be a precedent for other jurisdictions,” says Alice Murphy, the township’s mayor.

“Portaging is part of the Canadian identity,” she says. “You have the right to portage, because you have the right of navigation.”

Convincing the Appeal Court of this won’t be easy. The Ontario Divisional Court ruled against the township last summer.

 

A sign opposing the construction of a controversial hydro-electric dam on the Bala Falls in the township of Bala in Muskoka Lakes is pictured on Saturday, June 7, 2014. (Matthew Sherwood / For The Globe and Mail)

Dammed if they do…

From his house by the Moon River, Mr. Turnbull has a clear view of the north falls. He’s a work-from-home accountant, a transplant from Scotland like Bala’s founder, Thomas Burgess. Mr. Turnbull first visited Bala in 1972, shortly after arriving in Canada. He moved here permanently in 1989 and says he’s watched canoeists and kayakers portage around the falls and dam hundreds of times.

One could canoe for days from Bala, west to Georgian Bay along the Moon River or east to Algonquin Provincial Park from Lake Muskoka. Water transport was a key to the community’s growth. Two dams were built in the late 1800s at the north and south falls to raise the water level on Lake Muskoka and aid navigation.

Hydroelectric power is a part of Bala’s history, too. A plant was constructed next to the north falls in the 1920s, feeding electricity to the region until 1954. The facility was demolished two decades later.

Now the province wants to harness that water power again.

The 4.5-megawatt power-plant proposal, awarded to Swift River Energy in 2005, went largely unnoticed until 2008, when planning kicked into high gear.

A grassroots opposition movement called Save the Bala Falls developed. Protest T-shirts were made and “Stop the hydro plant” signs sprouted everywhere. In Bala, the issue dominated the 2010 township election. (The township includes three wards.)

This wasn’t the only green-energy scrimmage in Ontario. The province was driving hard to expand water, solar and wind power as it shifted away from coal plants. The Liberal government was willing to pay big bucks for renewable power, and energy producers lined up to cash in.

If the hydroelectric project goes ahead, resident Sandy Currie worries it will harm the community’s businesses and spoil Bala’s main attraction.

Bala isn’t big. It has a few hundred residents, more in the summer when Ontarians flock to cottage country. Nearly all of its shops are huddled around a walkable stretch of Highway 169, about a two-hour drive north of Toronto.

“They’re going to rip the guts out of this little village,” Mr. Currie says as he sits on a bench near the falls.

“The whole idea of knocking down all those trees, disturbing all that soil. The ends don’t justify the means. We don’t need more electricity.”

Swift River Energy has a different view. Project manager Karen McGhee says Bala already has water-power infrastructure: two dams and distribution lines. The company, she says, has done extensive community outreach over the past nine years.

“We’re committed to being good neighbours in this town,” Ms. McGhee says. “It’s a site with a rich history of water power and our project will allow the existing dams to be used to their full potential.”

Swift River is eager to start construction. After the township was granted leave to appeal the portage ruling in April, the company pressed the Appeal Court to expedite its hearing to early summer. Swift River still requires several approvals, including a land lease from the province, but it hopes to begin work on the project in September.

 

Alan Turnbull’s canoe sits idle at his home in the township of Bala in Muskoka Lakes. (Matthew Sherwood for The Globe and Mail)

A ban on portaging?

The Bala Falls attract a steady stream of onlookers to Margaret Burgess Park. It’s a pretty little spot next to Bala United Church, where parishioners gather every Sunday at 11 a.m.

On the other side of the dam, a bright yellow portage sign beckons canoeists to the Moon River. The township erected the sign in September, 2012, irking the province. The portage ban came eight months later.

Four red signs warn the public that use of the property is prohibited under section 28 of the Public Lands Act. Even standing and looking at the falls from this patch is not allowed. (Several people have been warned, but no one has been fined.)

The Ministry of Natural Resources says the ban was issued because the province has safety concerns about people boating, portaging and swimming around the north dam. Two men drowned in 2009 when they dove in to save a child.

The province also says there are other portage options in the area – though they are longer.

The township maintains the prohibition wasn’t necessary and other measures have been identified to improve safety. The Divisional Court, however, did not find the province’s portage ban unreasonable. In a ruling last year, it concluded there was insufficient evidence to show the ban was a guise to advance the power project.

The Ontario government won’t discuss the township’s appeal because the case is before the court. In court documents, the township argues the historic use of the portage is well documented in written and oral histories of Bala, in journals of early explorers such as Thompson, and in postcards and photographs.

The township is pointing to the past because the Public Lands Act states that people have the right to portage if a route existed before the Crown sold or disposed of its land. The government counters that aspect of the legislation doesn’t apply here. The public, the province also says, has no legal right to use Ontario’s public lands. It only has a “privilege.”

 

The ban is ignored, at times.(Matthew Sherwood for The Globe and Mail)

The Ontario courts have considered the portage issue at least once before, although the land in that case was not public. In 1989, the High Court of Justice ruled in favour of a canoeing association’s bid to paddle the Credit River through private farmland west of Toronto. But the judge found that the public right of navigation does not carry with it a public right of portage across another person’s property.

Thompson’s 1837 canoe trip through Bala could play an important role in the Appeal Court’s deliberations Monday.

It took a lot sleuthing to find Thompson’s handwritten notes. It was fairly common knowledge in Bala that the acclaimed surveyor had travelled through the region, but Mitchell Shnier says the province wanted proof.

A member of the Save the Bala Falls group, Mr. Shnier spent days poring over microfilm in the Archives of Ontario, searching through Thompson’s journals and deciphering his abbreviations and cursive notes. On page 13 of Journal 66, he found what he was looking for.

From Thompson’s notes, Mr. Shnier says it’s clear the surveyor was travelling upstream on the Moon River (then known as the Muskoka River) from Georgian Bay to Lake Muskoka on Aug. 13, 1837.

He arrived at the 12th falls (north Bala Falls) at 11 a.m. Thompson noted the “CP,” which stands for carrying place, or the portage, was 100 yards to his right, just south of the falls.

The portage is “an important part of our history and it’s important that it should be where it was,” Mr. Shnier says. “Museums aren’t allowed to make up new animals. The portage is where the portage was for an important reason.”

He hopes the Appeal Court sees it this way, too.

 

{ 6 comments… add one }
  • Simon July 13, 2014, 9:22 pm

    “THE PUBLIC HAS NO RIGHT TO USE ONTARIO’S PUBLIC LANDS”…MNR CLOSES CANOE PORTAGE.
    According to the Ontario Liberal government, and the Ministry of Natural Resources (MNR), in their own words, “the public has no legal right to use Ontario’s public lands. It only has a privilege.” And it is a “privilege” that we are being denied more and more by this government.
    Many believe that the government is badly mistaken and that Ontarians do have the legal right to access their own public lands under Section 3 of the Ontario Public Lands Act and under the Canadian Charter of Rights and Freedoms. It is a point that must be challenged in court, if only we could afford it as private citizens.
    For decades, the government through the MNR has severely restricted access to over 2,000 of our best lakes and vast areas of prime public lands, mostly for the benefit of the remote tourism industry and its “guests” willing to pay big bucks for the remoteness, which means that no locals will bother them.
    Now, the MNR is taking their privatization of public lands one step further by blocking canoeists from using a very historic portage at Bala Falls. The MNR claims that it’s for reasons of “public safety” but Bala residents are certain that the real reason is to allow the construction of a huge hydro-electric project at Bala Falls, one that residents do not want nor need. The case is now before the Ontario Court of Appeals with the township of Bala maintaining that the Public Lands Act gives people the right to portage if a route existed before the Crown sold or disposed of its land. The government’s position is that aspect of the legislation doesn’t apply.
    Canoeing and portaging is an intrinsic part of Canada and our history; it is how our country was opened up by explorers. Our rivers served as our highways for centuries by the aboriginals and early settlers and the fur trade. It is part of our identity; we have always had the right to portage, without which the right of navigation is meaningless. It is our land – and we want to be able to enjoy its beauty and splendour. It is our historical right, dating over four centuries.
    However, we Ontarians deserve what we tolerate. Already, most of our biggest and best lakes are off limits to us unless one registers as a paying guest at high-priced tourist lodges. Many of our forest roads, built with public money, are closed off and posted “No Trespassing” so that we cannot enjoy our natural heritage. What’s next on the MNR’s agenda? If they succeed closing portages in Bala, there will no doubt be other closures of portages. Is this the beginning of the end of the only remaining free means of accessing and enjoying our remote wilderness?
    Simon Guillet

  • Fernie July 16, 2014, 8:54 pm

    Ferne Mac Rae
    The MNR is not doing the job it was originally mandated to do anymore. Public Lands are Public Lands, and they forget our TAX Dollars pay their wages and the policies that they are starting to write are ridiculous. Ontarians need to stand up and tell the WYNNE Government that enough is enough and we need an Ombudsman for the Natural Resources in Ontario.

  • Renata July 22, 2014, 10:54 am

    Muskoka township loses court bid to recognize the public’s right to portage
    RENATA D’ALIESIO
    The Globe and Mail
    Published Monday, Jul. 21 2014, 9:50 PM EDT

    An Ontario township in lake-studded Muskoka has lost a court bid to have the government recognize the public’s right to portage a historic canoe route at Bala Falls.
    In an Ontario Court of Appeal ruling released on Monday, a panel of three judges concluded that the protection of public safety trumps canoeists’ access to portages and shorelines on Crown land. The decision marks one of the few times Canadian courts have examined whether carrying a canoe between waterways is a right in a country explored and settled by paddlers.

    The canoe helped build scores of communities across Canada. Bordered by the Moon River and Lake Muskoka, the area’s water highways once drew cartographer David Thompson in 1837, according to a journal of his. He was travelling upstream in search of a water route from Georgian Bay to the Ottawa River.
    The right to navigate Canada’s waters has long been protected under federal legislation and common law. But in the Township of Muskoka Lakes’ case, the Appeal Court found that this right does not include transporting a canoe over “another’s land.”
    Moreover, the judges concluded that the Ontario Minister of Natural Resources can prohibit passage over portages if the area is deemed hazardous under the province’s Public Lands Act.
    Two men drowned near the north Bala Falls in 2009 after diving into the Moon River to save a child.
    The province blocked off part of the area last year, using section 28 of the Public Lands Act after the township erected a bright yellow portage sign beckoning canoeists to use the route.
    The ministry had “serious concerns with the township encouraging the use of potentially dangerous lands for portaging,” said Jolanta Kowalski, a spokeswoman for Natural Resources.
    The Township of Muskoka Lakes had maintained an outright ban was unnecessary and unreasonable, noting a study commissioned by the province after the drowning deaths had not recommended prohibiting public access to Crown land.
    The appeal court disagreed: “Given the safety concerns, the Minister’s decision was reasonable, even if a portage protected by” another section of the act existed, the judges wrote.
    The ruling is a setback for opponents of a proposed water power plant at Bala Falls, a picturesque spurt on the Canadian Shield about a two-hour drive north of Toronto.
    If the township had won, the Ontario government would not have been allowed to disturb the portage and the 4.5-megawatt hydroelectric project would likely have been halted.
    An old water power plant south of the north falls was demolished in the 1970s. The Liberal government wants to harness that energy again in its aggressive plan to expand renewable sources such as water, solar and wind.
    The Bala Falls hydroelectric project, awarded to Swift River Energy in 2005, has encountered strong resistance in the community of Bala. In other parts of the township, some residents have expressed frustration with the amount of public money spent on the legal battle.
    Swift River Energy welcomed Monday’s court decision, noting on its Twitter account “several SAFER portage routes” are nearby. In a brief note, project manager Karen McGhee said the company hopes to begin work on the site in the fall.
    Swift River still requires a land lease from the province and other municipal and federal approvals. The company estimates it has spent about $2-million on the proposal so far.
    In an e-mail Monday, the Ministry of Natural Resources did not indicate when – or if – that land lease will be granted.
    Township Mayor Alice Murphy said the community will seek to identify another portage route. The township could request an appeal to the Supreme Court of Canada.
    “Any consideration of a further [legal] application would be premature at this time,” Ms. Murphy said.
    Bala resident Sandy Currie thinks the country’s top court should weigh in – that the issue of public access to shorelines and historic portages on Crown land is of national importance. He hopes other municipalities and organizations consider joining this legal fight.
    “The fact is that the federal government controls the right to navigate, not the province,” Mr. Currie noted. “Is the right to portage included somehow in the right to navigate?”
    Mr. Currie, president of the Moon River Property Owners’ Association, vowed to keep battling the water power project. Bala is peppered with signs that say “Stop the hydro plant.”
    “This is setback for sure,” Mr. Currie said, “but I don’t think this should be taken as a final straw in the matter.”

  • Paul July 22, 2014, 11:07 am

    Well the fix is most definitely in.. and the people of Ontario lose once again. Has anyone ever heard the expression “you can not fix stupid” well apparently you can .
    All you have to do is take everything away from the people and there is no more liability. there it is fixed.
    Someone drowns on a lake by hitting a rock or island with their boat, its to dangerous, close the lake. Is this where everything is going. If you cannot fix it close it down. It is sad to see someone loose their life over senseless accidents , but there is only so much that can be done and by punishing the general public for accidents that occur is not the answer.
    MNR are closing down access roads, lakes and much crown land to protect it from the average tax payer , so why should they not close down portages.
    Eventually the MNR will have all crown land closed to protect the land or the taxpayers, YAHOO, then we will be able to close down the misguided MNR.

  • Paul July 22, 2014, 11:13 am

    Oh yes, I forgot it is now called Ministry of Natural Resources and Forestry, did they do this to try and confuse us?
    Watch when you send anything to them by mail, if it is not addressed properly they can always claim it was not received.

    • Zeke July 22, 2014, 11:43 am

      That is Correct Paul.

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