In 2005 in response to a Request For Proposal (RFP) from the Ministry of Natural Resources (MNR), Swift River Energy Limited (SREL) submitted a proposal to construct and operate a small hydro-electric plant at the North Bala dam. Their proposal was accepted, and the anticipated date to be operational was in 2008.
In the intervening time, a lot has transpired, including (not necessarily in order) public meetings, expert reports, design of optional development location (Option 2) better supported by community, council decisions, environmental screening reports, decisions by ministry staff, appeals to the Minister, confirmation of appeals by the Minister, transfer of District lands to the Township, many delegations to Council (pro and con), refusal by Township to make lands available, return to original proposal (Option 1), more environmental reports, more decisions by ministry staff, another appeal of decision, another confirmation by Minister, offers of significant financial support to Council to stop the plant (not accepted by Council), proposal to designate a number of properties near the fall as heritage sites, 30 fold increase in heritage committee budget, attempted preservation of 2 trees in the area, and a lawsuit by the Township of Muskoka Lakes against the Ministry of Natural Resources (now settled - see below), and legal action taken by Swift River against the Mayor and the Township.
The Muskoka Ratepayers' Association, like many others, has not taken a position for or against the proposed plant. We are generally in favour of environmentally friendly projects (including energy), and believe that decisions be made on fact and not emotion. We have studied the project extensively, through reading, discussions with all parties, consultation with the ministries, and listening to our members. In the end, we feel that a decision on a project of this nature needs to be based on long term need, expert input, the opportunity for public question and input, and an unbiased or emotional decision by the appropriate decision body.
It has now been 12 years since SREL submitted their proposal. In fairness to all, we trust that a final decision is forthcoming that will be in the best interests of all Muskokans.
Read below to get the full details on this ongoing saga.
We have also provided a consolidated list of articles and letters at the end of this document, as well as links to other sites that have a vested interest in the outcome. To go immediately to those references, please select the following link - Articles
Since our last report on the North Bala Small Hydro Project last winter, this release should bring members up to date to the end of August 2017.
The disruption that was experienced last winter for the rebuilding of the two main roadway bridges in Bala came to an end in early June. To assure there would be no confusion of two project sites at once, the delay to the hydro project was necessary for safety and logistics reasons.
Swift River Energy Limited (SREL) announced they were ready to proceed in early July once final access was granted from the District of Muskoka (DMM). There was a media release from the District on August 21st stating that all conditions had now been met by SREL and the DMM were issuing Roadway Entrance and Road Occupancy permits. The District is actually under obligation to grant the owner of a property abutting their roadway the right to access their property which these permits now provide.
According to Fred Jahn the DMM Commissioner of Engineering and Public Works, the District expanded beyond standard permit conditions to ensure enhanced measures were in place for the protection of public infrastructure. That was reassuring to learn.
SREL announced that they would now proceed with their project immediately and on August 25th began to move equipment and material onto the Shield Parking Lot that they have leased from the Township of Muskoka Lakes. The week of August 28th saw some positioning of sidewalk safety barriers and guardrail removal work being undertaken. As well, some construction fencing of their stored material in the Shield Parking Lot was expanded to fully surround all of their equipment.
The same week of August 28th, saw public demonstrations every day with an especially large turnout on Friday Sept 1st. No work by SREL was conducted on Sept 1st but is expected to proceed Sept 5th uninterrupted through until Cranberry Festival weekend, October 13th.
The Muskoka Ratepayers' Association has not taken a position on whether the proposed hydro power plant should be built or not, believing that it was largely in the hands of the provincial government. What we have sought is clarity of the process, and opportunity for all sides to be heard. There has been very considerable comment on the project, and much time has been devoted to delegations by the public at the Township and District Councils. We have all been waiting on the Ontario government (through the MOE) to make a decision on the Environmental Screen Report that Swift River (SREL - the developer) has prepared, and we have written to ministry officials to ensure the decision is made expeditiously so that the next steps can unfold.
The primary decisions to be made are:
Obviously if there is to be no power plant, the situation for many can go back to normal, victory can be declared, and the cleanup can be left to the lawyers for all parties.
This past week, the MOE did announce its decision regarding the Environmental Screen Report (ESR), and that after extensive review, they find that "an individual EA (Environmental Assessment) is NOT required". The MOE response is about 20 pages in length, and may be viewed by following this link - Bala Falls - MOE Decision - March 25 2011.
The response provides for a 15 day appeal period, and it is likely that one or more groups will appeal.
The MOE decision states that the decision on Option 1 or Option 2 is up to the Township and District, and that the option chosen does not affect the decision to deny the elevation request. Note that SREL has stated that they are prepared to proceed with Option 1 if the District land is not available to them.
We will be closely monitoring the situation, and will keep you informed with any appeals or decisions.
Muskoka Lakes Council has decided to appeal the decision of the Ministry of the Environment regarding Bala Falls, and request an “Individual Environmental Assessment”.
Township Council is now looking at designating a number of properties in Bala as “Heritage Sites”. This could present the developer with additional challenges.
Council also backed a plan to meet with the Ontario Minister of Municipal Affairs and Housing about “the effect that the Green Energy Act has on local municipal planning authority”, and the Municipal Conflict of Interest Act.
At Council this week (June 27), Swift River made a formal request to the Township to lease a small piece of land (recently transferred from the District) to facilitate the so-called “Options 2” development of the Bala Falls proposal. Council indicated that the request was “premature” and would require further study.
Events surrounding Bala Falls continued during the summer months. Some of the more notable include:
Since the summer update (above) a number of other events have unfolded, including:
Still no word from the Ministry of the Environment. The Ratepayers sent a letter to the ministry to urge them to make a decision - one way or the other. This is an issue that is consuming a great deal of Council's time and energy, and dividing friends and neighbours. We have not take a position for or against the project, but we strongly feel that it is time for a decision to be made.
As reported on our home page, a lot has happened in the past month or so.
On September 24, 2012, Agatha Garcia-Wright, the Director of the Environment and Approvals Branch (MOE) issued her decision that any additional Environmental Review was not required. The decision was final - subject to a 15 day appeal period to the Minister of the Environment - Jim Bradley. A copy of that decision can be found at the following link - MOE Director's Decision.
Subsequent to the Director's decision, a total of 69 requests to review the decision were forwarded to the Minister.
And so, the ball is back in the government's court.
On January 23, 2013, Jim Bradley, the Minister of the Environment confirmed the decision of the Director (Garcia-Wright) that no further environmental assessment was required for the project to proceed (on the Crown Land only option). See the Minister's decision at the following link - Minister's Decision
The Minister stressed in his decision that Swift River must comply with the Act and its commitments through the lengthy review process.
Of course, this will not be the end of oversight on this project. More permits and approvals will be required as the project moves into its next phases.
In its press release, Swift River has committed itself to working with the community to make it a "successful project for all". See SREL's press release at - Swift River - Press Release.
As has been repeatedly noted, the Muskoka Ratepayers' Association has not taken a side on whether the project should proceed or not, and that the ultimate decision was in the hands of the Province. There has been enormous amounts of pubic and expert input on this project, many meetings, many appeals, and a huge amount of Muskoka Township Council and staff time spent, and of great concern to the Ratepayers, what appears to be a very significant amount of (taxpayer) monies spent in opposing previous decisions of our elected representatives.
Considering the time, energy and monies expended on this project to date, the Ratepayers would like to see:
In May, it was reported that the Township of Muskoka Lakes has taken the Ministry of Natural Resources to court over the location of a portage that is in the area of the falls, and the legal right of individuals to use that portage. The Township further states that the lands to be leased to SREL by the MNR should never have been made available. Initially, the Township asked for an expedited hearing (which was set for June 28), but in late June, the Township asked for a delay on that hearing date.
On June 20, Swift River (believing that they had all appropriate approvals and permits) started some "investigative work" on the Option 1 site. That day, the Mayor and a Township Councillor came onto the work site, and made a number of complaints and observations that led to Swift River ceasing their work. On June 25, 2013, Swift River filed a Statement of Claim and a Notice Of Motion with the Ontario Superior Court of Justice seeking restrictions on access to the site, an apology, and damages in the amount of $3,000,000 (amongst several other items). Since that time, very little is being said by any of the involved parties. We await further developments. You can read the referenced documents by selecting Swift River - Statement of Claim or Swift River - Notice of Motion
In the spring of this year (see below), the Township of Muskoka Lakes (TML) took the Ministry of Natural Resources (MNR) to court over the location of a portage claiming that the lands should never have been released. The Judicial Review started on August 19 in Toronto, and ended that same day. After hearing from only the Township Lawyer, the three judges decided that the Township had not presented sufficient evidence, and the case was dismissed. On August 20, the Township agreed to pay $17,000 in legal fees for the Ministry of Natural Resources. Swift River has evidently waived their claim to any costs.
In another development, the Township Treasurer (Steve Rettie) filed a financial status report at the Committee of the Whole last week, in which he reported that the Township spent just under $90,000 on legal costs in the 6 months ending June 30 of this year on the Bala Falls file. From the same report, he indicated that $175,000 has been spent by this council in legal fees re Bala Falls. That's your tax dollars, and what do they have to show for it other than forcing the development of the power plant back onto the much narrower provincial site, a site that no one really wanted?
And of course, there is still the matter of the $3,000,000 lawsuit against the Mayor and Township to consider. - Stay tuned.
In mid August, the case brought by the Township of Muskoka Lakes against the Ministry of Natural Resources was dismissed by an Ontario Judicial Panel after hearing only the Township's case. The 3 judges ruled unanimously that the Township had not presented sufficient evidence for the case to be heard, and awarded costs to the MNR (note that Swift River declined payment of their costs). The Township then added $17,000 to its legal costs on this matter, costs which to the end of June 2013 were in the neighbourhood of $175,000 according to the Township.
At this point, most people who were concerned with the rising costs of this fight thought (hoped) that this would be the end of the matter.
Evidently this Council had different thoughts!
On September 3, 2013, the Council met in closed session, and decided to APPEAL the decision of the Judicial Panel. The vote was 5 to 4 in favour of the appeal. The wording of the motion read as follows:
"Be it resolved that: Harold Elston, Solicitor for the Township of Muskoka Lakes, be directed to proceed with the filing of a notice of motion for leave to appeal the dismissal of the Judicial Review Application regarding Township of Muskoka Lakes v Ministry of Natural resources, Divisional Court File No. 202/13"
"Moved by Phil Harding, Seconded by Allen Edwards, Motion carried (5 yeas, 4 nays, 1 regret).
A recorded vote was requested, and the voting went as follows:
In January 2014, Swift River announced that it had launched Stage 1 of its Two-Stage Design Consultation Process to gather community input into the final design of our North Bala Small Hydro Project through what they call their Design Concept Survey. All are welcome to take the online survey that is accessible through the Swift River web site - www.balafalls.ca. You will be asked to identify yourself and state whether you are a permanent or seasonal resident of Muskoka, and whether you live near Bala or in other parts of Muskoka. The cutoff date for the survey is the 29th of January.
Site Access and Staging Area - While efforts to halt the development of the Bala Falls power plant continued, the developer (Swift River) proceeded with their plans for the development. During the project, a "staging area" is required to provide access to the site, and storage facilities. Since the use of Township lands had previously been denied by Council, that left the Crown lands and Burgess Park (next to the United Church) available for this purpose. Swift River approached the Township with an offer of $100,000 to lease some lands owned be the Township, specifically the Shield parking lot, as a staging area, thus avoiding the use of Burgess Park. An agreement with the Township proved unsuccessful, and the staging area reverted to Burgess Park.
Swift River filed an application for "entrance permits" to allow permanent access to the site of the power plant and temporary access to the staging area at Burgess Park. These 2 permits were ultimately granted by the District. Swift River also asked to be allowed to widen the shoulder of Highway 169 to facilitate off-loading of equipment, and reduce the impact on other traffic. Our Councillors opposed this at District, and this request was denied. This will of necessity lead to lane closures at some periods, causing unnecessary disruption to normal traffic flow. The Ratepayers are puzzled by this decision, and hope that a solution can still be worked out.
Bala Conservation Heritage District - Another occurrence during this period revolved around a proposed Bala Conservation Heritage District. A consulting firm has been retained by the Township to develop a report, and to conduct several public meetings. The area in question just happens to be the area surrounding the proposed small hydro plant development, and seems to leave out what might be structures of heritage interest such as the Kee to Bala (previously Dunn's Pavilion) and the Balacade. An outline of the proposed district can be viewed here - Proposed Bala Heritage Conservation District. Another interesting feature of the proposed district is that much of the land it encompasses would not be bound by the heritage designation (crown lands, railway lands).
Township Appeal of Court Decision - Finally, as reported in the 2013 updates, the Township of Muskoka Lakes had taken the Ministry of Natural Resources (MNR) to court over a portage that happened to be at the site of the power plant, stating that the lands should have never been released for development. The case was heard and dismissed in 2013, but later appealed by the Township. That appeal was heard on July 14, and a decision was rendered by the Ontario Court of Appeal on July 21, upholding the original decision (against the Township).
Since then, the Township has issued a press release acknowledging the judgment, and committing to look for an alternate portage route.
For the arguments by the Township and the MNR, as well as the final judgment, see the list of supporting articles near the bottom of this report.
A lot has transpired since our last update on Bala Falls and the proposed small hydro plant. A new Council and Mayor have been elected, Swift River has continued work on gaining the required permits, and local organized opposition to the project has continued.
It is fair to say that the newly elected Council has been more open to discuss the Bala Falls Small Hydro project with the developer, and has established a "Bala Falls Working Committee" including 3 members of Council, 2 from Swift River, the Interim CAO, and an independent chair. This committee has met 6 times to date, and focuses on issues that the Township has some control over.
Swift River, for its part, has been concentrating on getting the required permits, and ordering the turbine and related equipment. They have also presented various design concepts for the station, and solicited public input.
Opposition to the project continues including the following organizations - the Moon River Property Owners' Association, the SaveTheBalaFalls group, the Muskoka Lakes Association, and a group called Friends of Muskoka.
As we have stated many times, the MRA has not taken a position for or against this project, but it is interesting to note the minutes from the August 2010 Council that included the following:
The CAO reviewed the report including the Township’s legal opinion, wherein the Township does not have the authority to stop or control the North Bala Small Hydro Project Environmental Screening Report or Project. This authority lies solely with the Province of Ontario. The recommended approach is to participate actively in the consultative process and to focus on mitigative factors and alternatives that will attain the best solution with respect to the proposal.
It is perhaps long past time to publicly reiterate this legal opinion received 5 years ago from Township Counsel. Had this opinion been heeded, the Township could have saved significant taxpayer money used in fighting the power plant, could have realized a better solution for the power plant location, and could have prevented much of the angst and adversarial behaviour that now divides the community of Bala.
Due to the extended time that has passed since our last entry on the Bala Falls Small Hydro Project in the spring of 2015, we apologize for this delay in reporting. We will now attempt to summarize a general timeline of what has transpired since then, but more specifically over the last year…2016.
In 2015 there were ongoing presentations to Muskoka Lakes Council by several individuals or groups opposed to the overall project. In the background, there were ongoing deliberations by the Committee of Council “Bala Falls Working Committee” mentioned in our earlier update. Mayor Don Furniss did a very factual update September 25th, 2015 to bring readers through to that time. See - Don Furniss - 2015 Update
In late 2015 The proponent Swift River Energy Limited moved onto the future site of the project next to the north Bala Falls to do some preliminary work and to secure the perimeter of the subject land. Despite some displays of protest, including a suit filed against the Township the site was mostly cleared of trees to enable an eight-foot perimeter fence to be erected. The suit against the Township was dismissed with costs to be paid to the Township. The suit and its subsequent outcome of a lease agreement being signed in January 2016 is covered very accurately we feel in another of Don’s Dialogue issued at the end of January. Go to - Don Furniss - 2016 Update
On June 27th,2016 a Building permit was issued from the Township of Muskoka Lakes. As with all buildings to be erected in the Township, a permit to do so must be issued.
September 26th,2016 the Bala Falls Working Committee reviewed a formal written request from Swift River Energy Ltd. (SREL) to alter lands immediately adjacent to the site (Portage Landing) to facilitate access for construction equipment and save any use of Margaret Burgess Park on the north side of the falls. As Portage Landing is designated under the Ontario Heritage Act an “Easement” was needed and the plans to rehabilitate the lands after construction needed to be reviewed by the Architectural Conservancy of Ontario (ACO) and the working committee. The Township working committee resolved that the Option One proposal be recommended to Council and that a public open house take place in Bala as soon as possible. The open house did take place on December 8th, 2016 with many from the community of Bala attending to view the plans for the parkland design after construction. To see the building and parkland plans click on - Bala Falls - Plans, or read the whole report go to - COW - Agenda Package pages 63-124. This gives the agenda of the November 17th COW meeting with details of all the questions for rehabilitation and other considerations during construction.
This project has once again been delayed in starting since October 2016, this time due to the rebuilding of the bridges on Muskoka Road #169 this winter. SREL and the District of Muskoka agreed that having two concurrent construction projects side by side would be next to impossible to manage. Latest estimate to begin construction is immediately after the spring runoff is complete…approximately June 1st.
To assist the reader who is interested in the articles and letters that are cited above, we have included links to the most relevant. The list is presented in reverse sequence by date:
As a further assistance, the following are links to various sites that have weighed in on the topic:
Some abbreviations and terms used above:
MRA - Board Meeting
Nov 24, 2018 9:00am to 1:00pm
TML - Inaugural Council
Dec 3, 2018 11:00am to 12:00pm
TML - Special Council
Dec 6, 2018 9:00am to 12:00pm
TML - Committe of Adjustment
Dec 12, 2018 9:00am to 9:00pm
TML - Committee of the Whole
Dec 13, 2018 9:00am to 12:00pm