A township in the heart of Ontario cottage country has asked the province’s top court to overturn a government ban and recognize the public’s right to portage a historic canoe route at Bala Falls.
The Ontario Court of Appeal heard arguments in the case on Monday. Its decision, expected this summer, could have far-reaching consequences for public projects that intersect with portages on Crown land.
In Canada, the ability to navigate rivers and lakes is protected by federal legislation. The Canadian courts, however, have rarely examined whether the act of carrying a canoe between waterways is also a public right in a nation explored and settled by paddlers.
The Township of Muskoka Lakes’ lawyer, Harold Elston, told the Appeal Court that the province has an obligation under its Public Lands Act to safeguard historic portages and to protect portions of Crown land along water for people to use. He contended the Ontario government’s move last year to ban a portage once traversed by acclaimed surveyor David Thompson lacked transparency and wasn’t justified.
The Ministry of Natural Resources maintains it blocked off the area because of risks posed by the north Bala Falls, rapids and dam. Two inexperienced swimmers drowned in 2009 after they dove in to save a child.
The township counters that other measures, such as warning signs and fences, have addressed safety concerns. The municipality also notes a review commissioned by the province after the drownings did not recommend prohibiting access to the shore and portage.
“This is a very historic, almost iconic part of Muskoka and the town of Bala,” Mr. Elston told a panel of three judges. “It [portaging] is important to our history.”
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RENATA D’ALIESIO
The Globe and Mail