Filcc C'.lpy Ac:ton WAHTA MOHAWKS Chair E( 0 BOX260 C.AO. 0 BALA, ONTARIO O!!'lt ~ 0 CANADA Ftna:1ce & Co-p Sr.:v. POC 1AO 0 0 (705) 762·2354 Publi: \'.'orY.s [V" 0 FAX 762·2376 Planninu 0 0 Community Se'V 0 Lcoar l} 0 Comp uter January 19, 2015 0 0 Personnel 0 0 C.E.MC. 0 0 Land Ambulance 0 0 The District Municipality of Muskoka Convnittee 0 0 Council ~ 0 70 Pine Street, Corresnondence 0 0 Bracebridge, Ontario Comments. PlL 1N3 Attention: john Klinck, District Chair Phil Harding, Chair, Engineering & Public Works Committee Michael Dubcn, CAO Fred )ang, Commissioner of Engineering and Public Works Re: Proposed Hydro Station and Adverse Impacts on the BaJa Portage Dear Sirs: Further to my delegation to the District Municipality of Muskoka (the "District") Council of September 16th, 2014, lam writing to confirm that consultation by the Provincial and Federal Government with the Wahta Mohawks regarding the Bala Portage has not yet occurred. The Duty to Consult rests with the Crown and this duty has not yet been fulfilled. Premier Wynne has referred our requests to various Ministries. To date we have not received any meaningful correspondence or communication from the Ministries of Aboriginal Affairs or Natural Resources and Forestry. Additionally, we have not yet received the courtesy of a reply from Transport Canada or other federal representatives. The Duty to Consult also extends, in certain circumstances to Municipalities. It is the stated po~ition of the Province's Ministry of Municipal Affairs and Housing "that municipalities have a duty to consult in some circumstances". The Ministry provides further clarity by statio~ that Aboriginal rights "must be an element ofa practice, custom or tradition which is integral to the distinctive culture ofthe Aboriginal community claiming the right. For First Nations and Inuit communities, the activit;y must have existed at the time offirst contact with Europeans". Further, Ontario's 2014 Provincial Policy Statement "recognizes the importance ofconsulting with Aboriginal communities on planning matters that may affect their rights and interests" and "planning authorities are encouraged to coordinate planning matters with Aboriginal communities". The Provincial Policy Statement also states that "Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage properties and "shall consider the interests ofAborig inal communities in conserving cultural·heritage and archaeological resources." 1 RECE\VED JAN 2 0 ZO\~ To date the adverse impact to lands, which are of historic and cultural importance to the Wahta Mohawks and other First Nations of the area, remains unaddressed. For greater context, this land is a traditional portage, which has been used by First Nations for hundreds of years, documented through our oral history, from generation to generation. The Wahta Mohawks used this portage when we arrived in Muskoka In November of1881 and it remains of great historical and cultural importance to us, representing a clear, profound and continuous tie to the site. We and other First Nations in the area have also used it to travel to the Indian River Reserve in Port Carling which we own jointly with the Chippewas of Rama, and which we both used for trading. Moreover, the BaJa Portage lies within the District, which the Ministry of Natural Resources and forestry long ago recognized as being within the territory over which First Nations exercised traditional hunting and fishing rights. We now request that consultation begin with the District on any changes or potential adverse impacts that this proposed project would have on our Aboriginal rights. In particular, the District does have the power to alleviate certain of the negative impacts on the historic BaJa Portage; hence the District would have the corresponding delegated duty to engage in meaningful consultation and accommodation. The relationship to date from the proponent, Swift River, to the Wahta Mohawks First Nation has been highly disrespectful and dismissive by Swift River and the adverse impact to lands which are of historic and cultural importance to the Wahta Mohawks and other First Nations of the area, remains unaddressed. We are particularly concerned that that we were provided with inadequate and incorrect information by Swift River regarding the impact of the proposed development on the historic Bala Portage. It is offensive to receive innocuous correspondence from Swift River advising of the site change to Option 1A and have this represented as "Consultation" or the obliteration of our historic portage route described as a positive outcome. It is our position that this misinformation from the proponent has not been corrected, and in fact, has continued with correspondence from Swift River, dated December 4, 2014, providing further incorrect and misleading information to Wahta Mohawks, other local governments and the press. More recently, the Wahta Mohawks flag was disrespectfully removed and returned by Swift River from the Bala Portage site without prior communication or our authority. We have asked the proponent's assurance that this will not re-occur going forward. Additionally, we draw your attention to the Notice of Trespass, issued on November 25th, 2014 by Swift River, denying all access to, amongst other locations: "Part 1,/ocally known as Margaret Burgess Park, located west ofMuskoka District Road 160, north ofthe North Bola Dam, and south ofthe Bola United Church''. It is our understanding that the original Crown Patent for this land reserves free access to Lake Muskoka for all vessels, boats and persons forever. We expect that this obligation 2 would be honored as per the original indenture and question under what authority this Notice of Trespass was Issued. Of most recent and immediate concern is our understanding that Swift River does not appear to want to put up proper performance bonds and security for construction work across the Bala Portage, even though this was required by the District in june, 2014. It is our understanding that Swift River, a company with no past performance history, wishes to address all financial security issues by way of insurance, rather than the industry practice of letters of credit and performance bonds. We do not know if this request has originated to seek funding or liability relief, but in any event, the Wahta Mohawks strongly oppose this request Until you receive positive assurance from the Crown that the Duty to Consult has been fulfilled, we ask that no consideration be given to these further favorable conditions now being requested by the proponent. We do not see that any further financial risk or liability to the public, including the Wahta Mohawks, should be undertaken regarding this project Our position is that any and all permissions granted to date for entrance permits should be stayed until such time that the District has satisfied themselves that the Duty to Consult has been achieved. We appreciate the opportunities we have had to delegate at District Council meetings to voice our concerns, however we now ask the District to complete the necessary consultation process in a meaningful fashion, according to the fiduciary responsibility. It would be most unfortunate for all should Wahta Mohawks find themselves in a position in the future where there are negative impacts caused by this potential development and we are forced to seek legal redress due to lack ofadequate consultation. S~re~(l_ Chief Philip Franks, Wahta Mohawks c. c. District Councillors 3 .