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.
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.
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.
- Aquatic Safety – Take 3 – 23 July 2020
- Harbour Safety Audit Reviewed Take 2 – 14 May 2020
- Aquatic Safety Audit Report – by Lifesaving Society 24 July 2019
- Harbour Safety Audit Concerns – 25 September 2019 – original presentation that caused all the concerns by users.
- 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.
- Legal Opinion re Town’s Jusrisdiction over Harbour