West Harbour Concerns Close to Resolution

In 2019, Town staff commissioned the Lifesaving Society to conduct an audit of activities in the West Harbour to ensure they were safe.  The report recommended some changes but their overall report was criticised by Harbour User groups because they were not consulted and some recommendations would mean they would have to shut down.  Council asked Staff for a report which Director (at the time) Dean Hustwick provided but this just seemed to inflame the situation. (See links below).  One key issue raised by users was that the Town did not have jurisdiction in the harbour.  Instead it was a Federal responsibility because the Harbour included “navigable waters”.  Most recently (July 2020), Council passed a resolution that included a request for legal clarification.  This was provided at Monday’s Committee of the Whole meeting.

Background

When the Lifesaving Society report was presented to Council, there were strong objections and an implication that the report was part of a campaign by staff to expand boat docks into the West Harbour.  Users were not consulted by staff and recommendations to schedule events and use a motorized safety boat would effectively stop use by the Cobourg Dragon Boat and Canoe Club. Jeremy Fowlie of that club said that the Town admitted in 2015 that the harbour is federally regulated yet the Town plans to regulate it (see Link #4 below).

Some of the animosity was created by a belief that Director Hustwick was trying to justify expanding boat slips into the West Harbour (as recommended by the Waterfront report – see link #5 below) but with his departure this feeling has subsided.

West Harbour 2018
West Harbour 2018

After considerable discussion, Council decided to implement five of the 16 recommendations, set up a working group to create a safety procedure/emergency manual and get a legal opinion as to whether Council could govern the Harbour with By-Laws.  (Photo at right is from 2018 when both small sailboats and Dragon Boats were using the West Harbour.)

Originally the Harbour was owned by the Crown which means it was the responsibility of the Federal Government. Then on October 7, 2003, it was legally transferred to the Town of Cobourg.

Legal Opinion – Summary – in plain English

See full “legal opinion” in link #6.

A Town may not regulate anything outside its boundaries but in the case of Cobourg and Lake Ontario, its boundary extends into the lake to the border with the U.S..  Its jurisdiction is over-ruled in the case of “navigation and shipping” where the Federal Government retains control.  That is, Towns may regulate certain aspects of harbours, docks, and, more broadly, lands covered by water unless it interferes with navigation and shipping when it would be unenforceable.  For example, a Town may not regulate Lighthouses.   A Town is empowered to regulate matters of “Health, safety and well-being of persons” and this includes the harbour with its docks and slips.  Apart from general rules, the specific transfer of title of the Harbour includes ownership of docks and parking, as well as the breakwater, pier and concrete dock, and the lands covered by Lake Ontario in and around the Harbour.

So the legal opinion of the lawyer consulted was that “the Town has broad authority to regulate the Harbour founded in its ownership rights and sphere of jurisdiction. Provided that the proposed regulation of uses on the subject waters is founded in a municipal purpose, the Town has broad authority to regulate issues in the interest of public health and safety.”

However, in the meantime, the working group creating a safety procedure/emergency manual has a draft almost ready for presentation to Council. The Working group includes user groups (see Link 1 for a list) and two staff members and their success shows what can be achieved when everyone gets together instead of an outside group working in isolation.

Links

  1. Aquatic Safety – Take 3  – 23 July 2020
  2. Harbour Safety Audit Reviewed Take 2  – 14 May 2020
  3. Aquatic Safety Audit Report  – by Lifesaving Society 24 July 2019
  4. Harbour Safety Audit Concerns – 25 September 2019 – original presentation that caused all the concerns by users.
  5. Appendices to Waterfront Study – See Appendix AI – Business Case for Cobourg Harbour and Marina – Adobe Acrobat Reader page 271 – this business case was used to justify expanding boat slips into the West Harbour.  Council has since passed a resolution that this would not happen.
  6. Legal Opinion re Town’s Jusrisdiction over Harbour

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waterwatcher
23 April 2021 9:51 am

Regardless of who has final jurisdiction over the harbour waters, until there is more jurisdiction over the land —the marina parking lot (as it pertains to fishing and boating), safety is non-existent.
Boats on trailers come and go in the wee hours of the morning, causing huge pile ups, yelling and shouting, while several boats on trailers try to access the tiny fish cleaning station. And when a boat cannot wait its turn to exit, they just drive over the grass. The marina parking lot is an accident waiting to happen, so not only safety on the water but on adjacent land too, please.

Old Sailor
22 April 2021 8:01 am

Cap’n John: When I read the first two paragraphs under “Background” above, it looks to me like there was no Town effort to draw the harbour users into a discussion on the merit of these proposals before they were issued. And as I recall no other harbour on the North Shore of Lake Ontaraio had to adopt these “draconian safety regulations”. Which makes the purpose of them suspect. Correct me if you are aware of other harbours that have those same policies. They appear to be regulations written to prevent accidents in the harbour that were never occurring. It would be like the Town banning the use of cars within in a 10 km radius of Cobourg, to prevent accidents that weren’t happening.

Cap’n John
Reply to  Old Sailor
22 April 2021 10:15 am

Old Sailor
I am familiar with the report from the CYC on this initiative. Their position in delegation to Council was that they supported five recommendations for immediate implementation, and advised further study by the working group of harbour users on the remaining recommendations. They did oppose certain recommendations, but not all. I have not seen the delegation information from the other groups involved.
My view is that this is a very important, but somewhat complex and controversial initiate, and Town staff and the working groups need to finish the job.
The harbour is small, congested at times, and safe practices must be followed. The fact that there has not been a serious incident ( that I know of) is irrelevant. The risk must be managed.

Cap’n John
21 April 2021 8:47 pm

Old Sailor
Could you be more specific about the recommendations that you believe are without merit and slanted? I think a blanket statement like that needs some support.

Old Sailor
21 April 2021 7:51 pm

An observation of the Town’s Harbour Safety recommendations is that Council decided to only implement 5 of their previous 16 recommendations. Which says to me that 11 of their recommendations were purely without merit and intentionally slanted against certain users of the harbour. Which means Council can make surveys/recommendations to be slanted versus open and transparent. What a surprise?

Cap’n John
20 April 2021 8:28 pm

This is good news for everyone. It is important that the Town has jurisdiction over the harbour, and it is very important that all of the on water groups using the harbour work together.
It would also benefit the Town if these same groups worked together to optimize the use of their land based facilities. Hopefully the joint working committee on the safety audit is a start.
We need more vision and leadership at the harbour.

Kyle
20 April 2021 2:46 pm

The problem with legal “opinions” is that is that they are after all an opinion of a lawyer that you pay. In any legal dispute there is another lawyer giving their ‘opinion” to another client. In the end, usually one “opinion” is wrong. But, the lawyers both win.

Bryan
Reply to  Kyle
20 April 2021 11:32 pm

Kyle:
I somewhat agree with you. In many cases the driving factor is “who pays the piper”: the consultant becomes an echo-sultant, parroting the views, wishes and directions of the client.

The lawyer, A&B is a very large (much larger financially than Cobourg) legal firm. One of Canada’s elite legal practices. Cobourg is a “one shot” engagement and as such A&B can be expected to be objective and not influenced by “favoured or big client” pressures.

I read A&B’s opinion and think it covered the subject well and made sound reasoned conclusions. In my opinion, (knowledgeable reader) this opinion is superior to the prior “harbour” opinion: better conclusions, research and explanations.

As you noted Kyle, the lawyers rendered an opinion, not law, no “must do”.

Staff and Council have to keep this firmly in mind and consider the opinion as just one factor in many. They have a business decisions to make and the benchmark is “what is best our clients: Cobourg’s residents” given the current situation and resources available. It is ok, in fact staff and Council have a responsibility, to not follow some or all of the legal opinion suggestions if mitigating conditions exist.

Last edited 3 months ago by Bryan
JimT
Reply to  Bryan
21 April 2021 9:12 am

Downvotes? For such a well-reasoned, well-presented and concise assessment of the situation? I can’t imagine why.

Gerinator
Reply to  JimT
21 April 2021 10:15 am

Why – coz there are a number of folks who did like the ‘Hustwick formula’ and the Lifesaving Committee recommendations.