AIRD
&
BERLIS
LLP
Barristers and Solicitors
John Mascarin
Direct: 416.865.7721
E-mail: [email protected]
May 14, 2015
File No.: 123858
BY EMAIL
Mayor Don Furniss and Members of Council
The Corporation of the Township of Muskoka Lakes
1 Bailey Street
Port Carling, Ontario ROB 1 JO
Attention: Ms. Cheryl Mortimer, Clerk
Your Worship and Members of Council:
Re:
Portage Landing
We are legal counsel to the Friends of Muskoka, a group of concerned residents of the
Township of Muskoka Lakes (the "Township").
The purpose of this letter is to express our client's concerns to Council regarding the
processes to be followed by Council respecting the proposed leasing of the heritage
designated Township lands at Bala Falls ("Portage Landing") in conjunction with the
proposed Bala Falls Hydro Project ("Project") to be developed by Swift River Energy
Limited ("SREL").
As indicated in previous correspondence, our client remains concerned that any deliberate
acceleration by Council to address issues relating to the Project will circumvent Council's
normal procedures that are fundamental to the tenet of good governance.
We note that the Council Meeting Agenda (the "Agenda") was published on May 12, 2015
but that it did not include the minutes of the meeting of Committee of the Whole held on
April 21, 2015 as required by Sections 7(a) and 8(b) of the Township's Procedure By-law
2006-11 ("Procedure By-law") and which is necessary to ensure a transparent accounting
to the public of the issues considered at Committee of the Whole. As of the time of writing,
the minutes for April 21, 2015 meeting of Committee of the Whole, have still not been
posted. Furthermore, the posted Agenda did not include any reference to the Project.
Our client is now concerned that the matters relating to the Project may be added to the
Agenda by way of resolution at the commencement of the Council meeting to be held on
May 15, 2015, which effectively by-passes the necessary public notice mandated by the
Procedure By-law.
We also draw your attention to Section 8 e) of the Procedure By-law, which provides
language to enact matters from a Standing Committee such as the Committee of the
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Page 2
May 14, 2015
Whole, either individually or grouped. We appreciate the provisions of Section 8 e) of the
Procedure By-law might appear, at first glance, to provide an avenue to re-introduce a
defeated motion. In our view, such use of Section 8 e) would not be in keeping with the
spirit of the remainder of Section 8, would not further the purpose of Section 8 when
viewed on a contextual basis and would, indeed, be abusive of the process.
Given that the Project has been before Council countless times over the past eleven years,
further discussions and possible negotiations must be expected. It is fundamentally
necessary, therefore, for any consideration and ensuing debate and deliberation to follow
the proper public process as Council itself has dictated through its Procedure By-law.
Furthermore, we would anticipate that the forum for such further negotiation would be the
Committee of the Whole, consistent with the ongoing workings of the Township.
We draw reference to Council's own Policy on Accountability and Transparency - C-GG17 adopted on December 11, 2007. The policy is expressly stated to be for the purpose
of ensuring that the Township is accountable to the public and to also guarantee that its
actions are transparent to the public. We note that this is a mandatory policy required
under s. 270 of the Municipal Act, 2001.
We note that the Agenda for the meeting on May 15, 2015 also includes a report providing
detail regarding the proper public process undertaken by Township for the re-zoning of
Township-owned lands in Port Carling. We would anticipate a similar degree of public
process for the potential disposition and loss of heritage-designated lands in Bala.
The essence of what is contemplated by SREL to facilitate the Project is nothing less than
permission to permanently alter the Portage Landing heritage property rather than the use
for construction purposes of Margaret Burgess Park, owned by the Crown, together with
the assumption of risk and liability by the Township as opposed to the Crown. In particular,
our client has environmental concerns regarding groundwater concentration of zinc in
excess of Ministry of the Environment and Climate Change guidelines, a matter which has
not yet been addressed by SREL.
We note that in accordance with Township Resolution C-24-13/03/15/, Council has
requested confirmation from the Ministry of Natural Resources and Forestry ("MNRF") as
to the impact of the construction on Margaret Burgess Park. In response the MNRF has
indicated that it did not yet have sufficient detail to provide that information, and our client
is not aware that any further information regarding the impact to Margaret Burgess Park
has been brought forward to the public. On this basis, there is no evidence that the impact
to the Crown land would be anything other than temporary, save for the loss of one or two
trees to accommodate construction events.
The primary goal of any publicly-constituted committee is to act with the public interest
clearly in mind. We strongly urge Council to advance the public request made by
Councillor Edwards and host a public meeting in advance of the disposition of public lands.
The Township has a long history of appropriately engaging the public through Town Hall
meetings, and we ask that the same courtesy be extended to the residents of Bala as has
been extended to the residents of Port Carling, Windermere and Milford Bay in advance of
important land use decisions.
AIRD
& BERLIS
Barristers and Solicitors
LLP
Page 3
May 14, 2015
As indicated in our previous correspondence, good governance demands an open
process for consideration and then constructive discussion, debate and deliberation.
When controversial issues arise, good governance demands that a municipal council will
take into account the views and input of all persons and entities that have or may have
concerns, regardless of their positions or interests.
As previously noted, preferential treatment should not be provided to any person,
including SREL. To do so would be contrary to the standard practices and workings of
Council, its own Policy on Accountability and Transparency and to the principles of
fairness and natural justice.
We thank you for your consideration of our client's ongoing concerns respecting this
matter.
Yours truly,
AIRD & BERLIS LLP
c.
The District Municipality of Muskoka
Wahta Mohawks First Nation
Ministry of Municipal Affairs and Housing
22722474.3
AIRD
& BERLIS
Barristers and Solicitors
LLP