The Corporation of the Township of Muskoka Lakes v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Natural Resources et al.

[Indexed as: Muskoka Lakes (Township) v. Ontario (Minister of Natural Resources)]

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

July 21, 2014

121 O.R. (3d) 557 | 2014 ONCA 557

Case Summary

Natural resources — Public lands — Minister of Natural Resources making order under s. 28(1) of Public Lands Act prohibiting public access to certain waterfront Crown lands for safety reasons — Township applying for judicial review of that decision and seeking orders declaring that portage protected by s. 65(4) of Act passed over site and setting aside water frontage of site for recreational and access purposes pursuant to s. 3 of Act — Divisional Court properly dismissing application — Section 28 not made subject to any other provision of Act — Minister's decision reasonable — Public Lands Act, R.S.O. 1990, c. P.43, ss. 3, 28(1), 65(4).

The minister made an order under s. 28(1) of the Public Lands Act prohibiting public access to certain waterfront Crown lands for safety reasons. The township applied for judicial review of that order and sought orders declaring that a portage protected by s. 65(4) of the Act passed over the site and setting aside the water frontage of the site for recreational and access purposes pursuant to s. 3 of the Act. The Divisional Court dismissed the application, finding that s. 28 of the Act was not made subject to any other provision in the Act and that ss. 3 and 65(4) were not stated to prevail over s. 28. Given the safety concerns, the court found that the minister's decision was reasonable even if a portage protected by s. 65(4) existed or s. 3 applied to the site. The township appealed.

Held, the appeal should be dismissed.

There was no basis for interfering with the Divisional Court's decision. Section 28 of the Act is not subject to ss. 3 and 65(4), and the minister's decision to restrict public access to the site for safety reasons was reasonable even if a portage protected by s. 65(4) existed or s. 3 applied to the site.

Cases referred to

Canoe Ontario v. Reed (1989), 1989 4237 (ON SC), 69 O.R. (2d) 494, [1989] O.J. No. 1293, 6 R.P.R. (2d) 226, 16 A.C.W.S. (3d) 396 (H.C.J.)

Statutes referred to

Navigation Protection Act, R.S.C. 1985, c. N-22 [as am.]

Public Lands Act, R.S.O. 1990, c. P.43, ss. 2(1), 3, 28, (1), 65(4) [as am.]

APPEAL from the order Nordheimer, Aston and Perell JJ. of the Divisional Court, [2013] O.J. No. 3856, 2013 ONSC 5380 (Div. Ct.) dismissing an application for judicial review. [page558]

Harold G. Elston and Aynsley L. Anderson, for appellant.

Ronald Carr and Sandra Nishikawa, for respondent Her Majesty the Queen in Right of Ontario.

Neil Finkelstein, Eric S. Block and Shane C. D'Souza, for respondent Swift River Energy Limited.

[1] Endorsement BY THE COURT: -- The township appeals the order of the Divisional Court dismissing its application for judicial review of the decision of the Minister of Natural Resources (the "minister") to prohibit access to certain Crown lands adjacent to Bala Falls (the "site") under s. 28(1) of the Public Lands Act, R.S.O. 1990, c. P.43 (the "Act"), and for orders (the "ancillary orders") (1) declaring that a portage protected by s. 65(4) of the Act passes over the site; (2) prohibiting the minister or any other person from interfering with that portage; (3) setting aside the water frontage at the site for recreational and access purposes pursuant to s. 3 of the Act; (4) prohibiting any interference with that frontage; and (5) enjoining the minister from issuing a lease and agreement for the construction and occupation of a waterpower generation facility on the site.

[2] Section 28(1) of the Act permits the minister to prohibit the possession, occupation or use of public lands. The Divisional Court found that the minister's decision to restrict public access to the site was reasonable. It wrote [at paras. 2 and 4]:

The Ministry made that determination because of expressed concerns about public safety and after commissioning a Public Safety Measures Plan. These safety concerns have existed at least since 2009 when there was a double drowning in the waters off of these lands.

[A] complete ban on public access to the Crown lands, in circumstances where two people have already lost their lives, cannot be shown to be so manifestly unreasonable as to justify interference by this court.

[3] It was not satisfied that the minister's decision under s. 28 was a guise to ensure that a new waterpower generation facility could be constructed on the site.

[4] The Divisional Court also rejected the township's argument that the minister could not invoke s. 28(1) if s. 3 or s. 65(4) of the Act applies. Section 3 requires the minister to set aside a certain percentage of public lands fronting on a body of water "for recreational and access purposes". Section 65(4) provides a right to pass over a portage "[w]here public lands over which a portage has existed or exists have been heretofore or are hereafter sold or otherwise disposed of under this or any other Act". The Divisional Court found that s. 28 was not made subject to any other [page559] provision in the Act, and in fact s. 28 may have been designed to prevail in situations such as this, given that public safety often trumps other policy goals. In light of its conclusion that the minister's decision to restrict public access to the site was reasonable, the Divisional Court did not determine whether there is so little remaining public frontage on the "body of water" that s. 3 requires the ministry to set aside the site for recreational and access purposes, or whether a portage passed over the site -- both disputed issues.

[5] On appeal, the township renews its arguments before the Divisional Court that a portage protected by s. 65(4) passes over the site, and that there is so little remaining public frontage on the "body of water" that s. 3 requires the minister to set aside the frontage at the site for recreational and access purposes. It submits that given these protected rights under the Act, the decision of the minister to prohibit those activities was unreasonable.

[6] The township also argues that in obstructing the alleged portage, the minister would interfere with navigation rights, protected at common law and regulated under the Navigation Protection Act, R.S.C. 1985, c. N-22, as amended.

[7] We see no basis for interfering with the Divisional Court's decision.

[8] The Divisional Court identified the appropriate standard of judicial review and applied it correctly. As the Divisional Court noted, s. 28 is not made subject to any other provisions of the Act, and ss. 3 and 65(4) are not stated to prevail over s. 28. Given the safety concerns, the minister's decision was reasonable, even if a portage protected by s. 65(4) existed, or s. 3 applied to the site. The minister's decision fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[9] The common law public right of passage over a navigable waterway does not include the right to portage over another's land: Canoe Ontario v. Reed (1989), 1989 4237 (ON SC), 69 O.R. (2d) 494, [1989] O.J. No. 1293 (H.C.J.). Section 2(1) of the Act provides that the minister has charge of the management of the public lands. Therefore, subject to any aboriginal and treaty rights, the minister has the right to make an order under s. 28(1) that has the effect of prohibiting passage over portages. Further, Transport Canada has provisionally concluded that navigation would not be substantially impacted by the proposed waterpower generation facility. It identified a different portage route as the primary, and Transport Canada recommended, portage through the Bala Falls area. [page560]

[10] In obiter, the Divisional Court expressed doubt as to whether, if there were a portage, s. 65(4) would apply. In this case, the minister intends to lease the site to the proposed operator of the new waterpower generation facility. The Divisional Court reasoned that the words "sold or otherwise disposed of" in s. 65(4) did not include a lease of Crown lands and any existing portage would therefore not be protected by s. 65(4). In disposing of this appeal, it is not necessary to address this issue of interpretation. By dismissing this appeal, we do not endorse the Divisional Court's reasoning on this point.

[11] In addition to asking this court to set aside the minister's decision, the township asked that this court grant the ancillary orders (with the exception of the order enjoining the grant of a lease and agreement for the construction and occupation of a waterpower generation facility on the site, which it concedes this court cannot issue against the Crown). As noted above, the Divisional Court determined that the minister's decision was reasonable without having to make findings on the existence of the alleged portage and the sufficiency of the frontage and dismissed the township's application for the ancillary orders. The township did not argue that the Divisional Court erred in setting aside the minister's decision without determining those issues; it seeks the ancillary orders as part of its appeal of the Divisional Court's dismissal of its application for an order setting aside the minister's decision. In light of our agreement that s. 28 of the Act is not subject to ss. 3 and 65(4) and that the minister's decision to restrict public access to the site for safety reasons was reasonable, even if a portage protected by s. 65(4) existed, or s. 3 applied to the site, we, like the Divisional Court, find it unnecessary to address these additional issues.

[12] This appeal is accordingly dismissed. The respondents, the Crown and Swift River Energy Limited, shall each be entitled to costs, fixed in the amount of $8,500, inclusive of HST and disbursements.

Appeal dismissed.

End of Document