RONDEAU COTTAGERS…

RONDEAU COTTAGERS ASSOCIATION SUBMISSIONS WITH RESPECT TO POLICY PROPOSAL 011-1300 – “NEW COTTAGE LEASES IN RONDEAU PROVINCIAL PARK”

On October 4, 2010, the Government of Ontario, through the Ministry of Natural Resources (“MNR”), announced a new policy proposal relating to private cottage leases in Rondeau Provincial Park. This proposal was posted in the Government’s Environmental Registry as EBR Registry Number 011-1300. The Proposal Notice invited members of the public to make comments.

The Rondeau Cottagers Association (“RCA”) submits the following comments for consideration by the MNR.

INTRODUCTION

The RCA represents 85% of all of the lease holders within the Park. It was originally formed as the Rondeau Lease Holders Association in 1928. Since then, the RCA has been actively involved in the Park operating under its mission statement “As stewards of Rondeau, we are committed to the natural and historical protection and promotion of Rondeau Provincial Park”.

Cottages have been part of Park life since the inception of the Park. The Government of the day solicited cottagers as a source of revenue to finance the expenses of maintaining the Park. After more than a century of being in the Park, the Government of Ontario now effectively is seeking to “phase out” this historic community. Given the success of the Park from all perspectives, we must ask “Why?” What compelling reasons are there to change the policy? There are currently 287 private cottage leases in the Park. All leases are scheduled to terminate on December 31, 2017. The RCA has been campaigning actively for over five years in an effort to negotiate a lease extension agreement. Accordingly, the RCA welcomes the Minister’s proposal for a further 21 year extension to December 31, 2038. Indeed, a 21 year extension is in keeping with the historical traditions of the relationship between the Government of Ontario and the RCA.

However, the RCA objects to several of the terms of the proposed policy. Generally speaking, and as has been acknowledged by officials of the MNR, this policy is not essentially a “lease extension” policy but rather a “cottage phase out” policy. The RCA therefore objects to the terms of the proposed policy that are designed to phase out or eliminate their community, which has been part of the larger community of Kent County and Southwestern Ontario for over 100 years. The Cottagers have played an integral role in the development of Rondeau, and the Cottage community is today a vibrant, identifiable community, which contributes immeasurably to the preservation of the Park, ecologically, and economically. In short, the RCA submits that in the absence of some compelling reason to disturb the status quo, there is no reason to embark upon the cottage phase out policy and rather suggests that the MNR ought to turn their minds to developing a lease extension policy that address all stakeholders goals. The position of the RCA is supported by the Municipality of Chatham-Kent, the local MPP Pat Hoy, and the overwhelming majority of the residents of Chatham Kent. Moreover, the Policy as proposed is inconsistent with the Government’s own practices at other Provincial Parks.

THE CURRENT PROPOSAL – A “PHASE OUT” PROPOSAL

The current proposal contains several clauses which are designed to phase out cottages within the Park. Specifically, the extension is only available to existing private cottage leaseholders which are defined as:

(a) those leaseholder(s) registered on title as of 4:30 p.m. Eastern Time on September 1, 2010; or

(b) the person(s) or entity to whom/which an existing lease would be transferred under an agreement of purchase and sale provided that both of the following conditions are met:

(i) the Ministry received an application in writing for its consent to transfer the lease, in accordance with the terms of the lease, prior to 4:30 p.m. Eastern Time on September 1, 2010; and

(ii) the Ministry provides, or has provided, its written consent to the transfer of the lease; or

(c) the surviving spouse of a person(s) captured by either (a) or (b) above.

If one examines this policy, you can determine that the current policy if adopted

does not allow the following transfers:

1To a person who becomes a “spouse” of a leaseholder after September 1, 2010;

2To the child or children of a current leaseholder;

3To some other intended beneficiary of the current leaseholder such as a grandchildren, cousin, sibling, etc.

4A private sale to another member of the public.

Assuming for the moment that the Government has used the word spouse as

defined in that part of the Family Law Act that deals with property1, only married

1 Family Law Act R.S.O 1990, c.F.3, s. 1 -“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19, Sched. C, s. 1 (1, 2, 4).

spouses will be eligible and common law spouse will not be eligible. It is also arguable that this policy is discriminatory and contrary to the Ontario Human Rights Code.2

Moreover, by eliminating the ability to transfer their property to whomsoever the leaseholder chooses, the proposed policy has effectively reduced the value of the cottage to zero, effectively expropriating the leaseholder’s property value in their cottage without compensation.

The most interesting observation from a historical perspective is that a very similar proposal was promulgated and ultimately rejected by the Government in the late 70s and early 80s.

Other parts of the proposed policy are also objectionable:

(a) the leaseholders would be required to remove buildings and structures and to restore lots to a safe and clean condition at their own expense, upon termination of leases;

This imposes a potential large liability on the leaseholder at the end of the term, which as will be demonstrated as unfair given the history of cottages in the Park.

(b) septic and water systems on the leased properties would have to comply with the standards of the Ontario Building Code and any other relevant provincial standards, and leaseholders would be responsible for all related costs, including any inspections and repairs or improvements required to bring their system(s) into compliance;

If the cottagers are required to expend funds necessary to comply with these standard, but also not have the benefit of a lease term which allows them to amortize the cost over the expected lifetime of the improvement, it is unfair. Effectively, it is akin to advising a homeowner that they must bear the expense of a 50 year roof, but will be only allowed to stay in the home for twenty one years. In a study performed by

2 Ontario Human Rights Code, R.S.0. 1990 c.H.19 s. 2(1) .. has a right to equal treatment with respect to occupancy of accommodation without discrimination because of family status.

Cumming Cockburn Limited in 2000, who were hired by Ontario Parks to advise them on the subject matter of a lease extension, the independent consultants recommended a 50 year extension to deal with this issue3.

(c) the lease fee would be based on fair market value and the associated service fee would be based on cost recovery;

As noted above, given the terms set out above the cottages have no “fair market value” and any calculation of fees would be purely arbitrary. That being said, if the Government were simply renewing the lease for the traditional 21 year term, the RCA notes that they have successfully and consensually negotiated lease rates and sevice fees that reflect market value with the MNR. In fact, these lease fees, and other revenue associated with the cottagers, makes Rondeau Provincial Park a revenue positive Park, with Park revenues exceeding expenses.

(d) the Crown would retain the sole right to purchase the lease on a willing seller/willing buyer basis;

While the RCA does not object to the Crown purchasing the cottages on the open market (indeed as will be demonstrated later in our comments), this has been the methodology used by the Government historically, which of course results in fair market value being paid to the cottagers.

and (e) any additional conditions that the Ministry considers to be necessary or appropriate to restore the ecological integrity of the park and protect species at risk and their habitat (e.g., native species planting, pesticide bans, restricting access to sensitive areas).

The RCA has been, and continues to be supportive of all efforts by the Ministry to preserve the ecological integrity of the Park, protect species at risk and their habitat in accordance with the Environmental Protection Act. The RCA objects to any suggestion that their presence somehow is preventing or harming the ecological integrity of the

3 Cumming Cockburn Report – August 31, 2000 -Documentary Brief – Tab 1

Park. The term “ecological integrity” is defined in the current governing statute as meaning: Ecological integrity

(2) Ecological integrity refers to a condition in which biotic and abiotic components of ecosystems and the composition and abundance of native species and biological communities are characteristic of their natural regions and rates of change and ecosystem processes are unimpeded. 2006, c. 12, s. 5 (2).

(3) For the purpose of subsection (2), ecological integrity includes, but is not limited to,

(a) healthy and viable populations of native species, including species at risk, and maintenance of the habitat on which the species depend; and

(b) levels of air and water quality consistent with protection of biodiversity and recreational enjoyment. 2006, c. 12, s. 5 (3)4. (emphasis added)

“Ecological integrity” has also been defined as “...maintaining viable populations of native species, representation of ecosystem types across their natural range of variation, maintaining ecological processes, management over the long term, and accommodating human use within the above constraints.” 5

Both definitions (“recreational enjoyment” & “human use”) incorporate the accommodation of human activity within the ecosystem. There has been no evidence presented to suggest that the presence of cottages is an impediment to ecological integrity.

4 Provincial Parks and Conservation Reserves Act, 2006, S.O. 2006, c.12, s. 5(2)

5 E. R. Grumbine. 1994. What is Ecosystem Management? Conservation Biology, 8(1):27-38

As noted above, the proposed policy is not a lease extension but rather a cottage phase out policy. The RCA submits that there is no evidence that mandates a change to the status quo. This “phase out” policy is, in effect, a continuation of a misguided, and erroneously grounded policy that commenced in the mid 1950s, and continues to this day. The main proponents of the policy are officials within the MNR who, over the years, have offered several rationales for this policy ranging from the argument that the MNR needs more available land due to the demand by the public to the more recent suggestion that the cottage community is somehow harming the “ecological integrity” of the Park. Although rarely officially stated, it would also seem that officials within the MNR simply don’t think that private cottages should be allowed within the Park, and that private cottages are an anathema to Provincial park.

In any event, in order to appreciate the discussion, and the perspective of the cottage community of Rondeau Provincial Park, it is illustrative to consider the history of the development of the Park and the relationship with the cottagers.

BACKGROUND AND HISTORY OF COTTAGES IN RONDEAU PARK

Rondeau Provincial Park was the second provincial park created by the Government of Ontario, with Algonquin being the first. The creation of Rondeau Provincial Park was the Government’s response to numerous demands of the citizens of Chatham and Kent. Recreation and conservation formed the basis for the appeal for the Park, and on May 5, 1894 the Rondeau Provincial Park Act 6was passed setting aside Pointe aux Pins as “public park, reservation and health resort”. 7 It is to be noted that the contemplated uses of the Park were recreational. Indeed, the Act specifically states at section 3 that the land is “…hereby reserved and set apart as a public park, reservation and health resort for the benefit, advantage and enjoyment of the people of

6 Rondeau Provincial Park Act, 1894 7 Killan, Protected Places 1993, p.18, para. 2

the Province…”. The Act also, at section 5(b) expressly mandated the construction of cottages as it stated:

“ The park shall be under the control and management of the Department of Crown Lands, and the Lieutenant-Governor in Council may make regulations for the following purposes:

(b)

The lease for any term of years of such parcels of land in the park as he deem advisable, for the construction of buildings for habitation during he summer, and such other buildings as may be necessary for the accommodation or visitors or persons resorting to the park as a sanitarium or health or summer resort.”

8

The Government of Ontario began to actively seek out leaseholders who would build cottages on long term leased land in Rondeau Park soon after its inception in 1894. The first superintendant Isaac Gardiner surveyed 40 lots and made them available to the public for 21 year renewable leases.9 Through 1953 the Ontario government actively pursued this policy, at different times even advertising the availability of such leases in neighbouring American states, such as Michigan and Ohio. It was a term of these lease offerings that the leaseholder build a cottage or home on the leased lands, usually within two years of the date of the lease. As a result, by 1954 there were 449 cottages in Rondeau Park, all having been built in reliance upon the long term leases granted, customarily for a term of 21 years with renewal rights for further 21 year periods. In practice each lease renewal contained another 21 year renewal option. Cottagers were free to alienate their leasehold improvements by conveyance, gift or will, and the community and buyers felt secure because of the lease practices that had existed since the 1890's.

Throughout the development of the cottage community, all cottages and additions thereto, were approved by the Park superintendent. The cottage community,

8 Rondeau Provincial Park Act, 1894 9 Killan, ibid, p. 45, para. 2

with the approval of the Superintendents, has invested substantial sums in these cottages over the years on the reasonable assumption that the 21 lease would be renewed in the absence of a compelling reason to the contrary.

The cottagers were instrumental in developing the Rondeau Park area. They cleared paths, brush, roads and their lots. They built a community, including two churches, a yacht club (which is open to all residents in the area ( not just cottagers) and served as a social, recreational, and educational center), the Kiwanis Club Pavillion which was a focal point for social gatherings for residents of surrounding communities for many years although it no longer exists , as well as horse and bicycle renting facilities, miniature golf, archery, a small store and a snack bar.

The cottagers have brought many millions of dollars into the economy of Southwestern Ontario. Local tradesmen and business owners from the surrounding communities such as Ridgetown, Blenheim, Cedar Springs and Chatham (now known as the Municipality of Chatham Kent) have benefitted.

Thus, the history of cottaging in the Park shows it not only to have been a boon to the communities outside the park, but also to have been compatible with all the other park uses, such as boating, bicycling, nature study, camping, swimming, fishing, hunting and winter sports, all of which have coexisted in balance and harmony in the park for generations.

A historical review demonstrates that up until the mid 1950s the issue of cottages in Rondeau Park was not considered as negative by the Government but rather as a positive from all relevant perspectives – ecologically, economically, and environmentally.

1954 and the “Change” in Policy

In 1953 the Province of Ontario had only six provincial parks. These were Algonquin, Rondeau, Quetico, Ipperwash Beach, Lake Superior and Sibley. In the post war boom years, there was increasing demand for access to the Parks by the people of Ontario. As a result, in 1954 the Government passed the new I Provincial Parks Act , created a Division of Parks within the Department of Lands and Forests, and launched an era of provincial park expansion in which the number of parks grew rapidly from 8 parks in 1954 to 94 in 1967.10 As the addition of park lands took more than a decade, and looking back, it was understandable why there was some concern at that time about the ability of existing facilities to accommodate existing need and predicted growth demands, particularly in the area of camping. As a result, government planners began to focus attention on the role of permanent cottagers on leased lands in the provincial park system as a whole. The attention of the Ministries involved in provincial parks began to focus on long range planning, policy reports and recommendations over the next twenty-five (25) years. Gradually there emerged from the civil service a recommended policy that no new leases be granted in provincial parks, and that occupation of lands in provincial parks be restricted to pre-1954 leases or licence or renewals thereof. It is to be noted, however, that no such provision was legislated in the 1954 Act, although such policy and later legislation would by 1972 be attributed to the 1954 Act and Cabinet decisions" in reports and recommendations by Ministry of Natural Resources personnel. Vague references are made to Orders-in-Council embodying and making official the policy. In actuality the so-called 1954 policy was not evidenced in the Regulations of Ontario until 1978. And nowhere in the legislation is there any express reference to the removal of cottages within Rondeau Provincial Park.

Nevertheless, in or about 1961, the Ministry of Natural Resources began a cottage removal policy in Rondeau Park, allegedly refusing to grant lease renewals containing rights to further 21 year renewals. The objective was to have all cottages

10 Killian, ibid, p. 74, para. 2

gone from the park by 1996. The evidence shows, however, that cottagers were not even informed of this alleged government policy until 1956 at the earliest, and that it was administered haphazardly and unequally. By 1975 cottage holders had still not received any official written notice of the alleged government policy. Also, over the period 1954 to 1982, the government purchased 141 cottages from Rondeau leaseholders, at a cost of $2,592,000.0011. The Government policy as of February 11, 1974 was to purchase as market value all those interests within the Park that were offered for sale, regardless of the length of the lease remaining.12 The rationale for the policy was the “growing demand for park land… and there is no doubt that the area presently acquired by lessees in Rondeau will be needed for park purposes in years to

13

come”

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HISTORY OF LEGISLATION & POLICY

As mentioned above, Rondeau Provincial Park is one of the oldest Provincial Parks in the Province. The Park was established by the passage of The Rondeau Provincial Park Act, which received Royal assent on the 5th day of May, 1894. By the Rondeau Provincial Park Act assented to on the 7th day of March, 1910 14, the 1894 Act was repealed.. Both the 1894 Act and the 1910 Act provided that the Lieutenant-Governor in Council could make regulations for, among other things, "…the lease for any term of years of such parcels of land in the Park as he deems advisable, for the construction of buildings for habitation during the summer….. ". Such regulations were required by the Act to be published for four consecutive weeks in the Ontario Gazette, then laid before the Legislative Assembly within fifteen days after its first meeting subsequent to the making thereof. (s. 6).

11 Minister of Natural Resources Land Acquisition Program Progress Report (Document Brief, Tab 2 ) 12 Address by Leo Bernier, Minster of Natural Resources, to a special meeting of Kent County Council, February 11, 1974 (Document Brief – Tab 3 p, 10, para. 2) )

13 Letter of G.H.U. Bayly, Deputy Minister Department of Lands and Forests to Mr. William Russel, Jr., November 22, 1966(Document Brief – Tab 4)

14 Rondeau Provincial Park Act, R.S.O. 1910

The Provincial Parks Act was passed in 191315. By s. 31 of this Act, "The

Rondeau Provincial Park is also hereby continued, and except as hereinafter expressly provided shall be subject to the provisions of this Act." Again, the Lieutenant-Governor in council was empowered to make Regulations for leasing parcels of land in the Park and similar procedural requirements for the making effective such Regulations were set out (s. 7, s. 8).

This Act, in turn, was replaced by the Provincial Parks Act of 1927, 1937 and 1950, all embodying basically the same provisions.

In 1954, a new Act 16 was passed. Provincial Parks were dedicated to the people of the Province of Ontario "and others" to be used "for their healthful enjoyment and education." (s. 2). No changes relevant to these comments are set out in the 1954 Provincial Parks Act. Nothing in statute embraces or authorizes a cottage removal policy from Rondeau Park. In spite of the fact that statutory authority up to, including, and after the 1954 Act empowers the lieutenant-Governor in Council to deal with leases in provincial parks provided they do so by regulation, no regulation bearing on this issue with respect to Rondeau Park is made until 1978.

In 1960 Ontario Regulation 499 under the Provincial Parks Act, section 7, provided that no person shall occupy land in a provincial park except "under a lease granted before the 2nd day of July, 1954, and any renewal thereof where the lease

15 The Provincial Parks Act, R.S.O 1913 16 The Provincial Parks Act, 1954

provides for such renewal." In 1970 Regulation 696, s. 7 stated occupancy of land in a provincial park was permitted "under a lease granted before the 2nd day of July, 1954, and any renewal thereof.", (see Documentary Brief, pages 161-163, 164-169).

In 1978, by Regulation 258, R.O. 1978, it was provided that no person could occupy land in a provincial park except by, among other things, authority of a lease granted before the 2nd day of July, 1954 and any renewal thereof, where the lease provided for such renewal. Regulation 258/78 was then amended by Regulation 826,

R.O. 1978 to add to it the following clause:

" (e) under a lease, licence of occupation or land use permit, or under a renewal or extension of a lease, licence of occupation or land use permit, granted by the Minister in respect of Algonquin Provincial Park or Rondeau Provincial Park."

In 2006 the Provincial Parks and Conservation Reserves Act was enacted. The Act specifically states that ecological integrity will have first priority when planning and managing provincial parks and conservation reserves17 . This is the statutory regime under which we currently operate. The statute expressly contemplates the leasing of lands within a provincial park at section 14(2): “ The Minister may lease land in a provincial park or conservation reserve of issue a land use permit or licence of occupation in respect of land in a provincial park or conservation reserve for private non-commercial purposes if the granting of the lease or the issuing of the land use permit or licence of occupation,

(a) is consistent with this Act and the regulations; and,

(b) extends the term of occupation of an existing lease holder or holder of a land use permit or licence of occupation.

17 Provincial Parks and Conservation Reserves Act 2006, s. 3 -1

Clearly, the legal basis for the extension of the cottage leases exists, requiring a minor revision to section 13(2) of Ontario Regulation 347/07 by an Order in Council which currently reads:

13. (2) No person shall occupy land for non-commercial residential purposes in Algonquin or Rondeau Provincial Park except under a lease granted before July 2, 1954 or a renewal or extension of such a lease that does not extend beyond December 31, 2017. O. Reg. 347/07, s. 13 (2).

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1954 "POLICY" TO REMOVE COTTAGES:

It has been taken almost for granted that the Cabinet in 1954 enunciated a policy regarding the removal of cottages in Algonquin and Rondeau Parks. However the announcement o f this policy was released on a memorandum bearing a reference line of “Algonquin Provincial Park – Long Term Plan of Restoration to its Natural State.”18

Notwithstanding the passage of 5 decades and significant investigations, we have been unable to find a clear, unequivocal delineation of what that policy was, who made it, or in fact, how it was communicated to the public at large. Contrary to what has come to be believed, there is absolutely no evidence on the record to demonstrate that Cabinet ever gave approval to this policy in any written form. If it gave even a verbal approval to the policy, on the writings of the Ministry itself, it is clear and patent on the face of the documentation that the policy, which is accepted as never having been passed, included a specific provision that negotiations would commence immediately for the acquisition of the leasehold interests offered for sale. Again, contrary to the public belief, this was not communicated to anyone at Rondeau until sometime after September 10, 1956 when a circular went out from the Deputy Minister of Lands enunciating what was referred to as the new policy. However, in the same time period

18 Department of Lands and Forests Memorandum dated July 23, 1954 – Document Brief – Tab 5) (1954-1956), the so-called policy was not being utilized regarding Rondeau leases as a number of new leases came out in pure contravention of the so-called policy. In the 1954-1956 time frame, six leases were renewed containing a 21 year term plus a 21 year renewal. Indeed, the then Superintendent of Rondeau Park, Mr. Robert McLaren, is purported to have often stated that there was no change in policy and encouraged cottagers to build and up-grade their property and generally improve the park appearance. It is interesting to note that in the 1954-1956 era, leases were renewed with a 21 year renewal privilege and that none of the cottages were purchased nor were there any negotiations regarding acquisition of leaseholders. In fact, no leaseholds were purchased by the Minister until sometime subsequent to 1961. From 1961 to date, 109 cottages on annual permits were removed and of the 450 long-term leases, something in the order of 200 were acquired. There are presently something in the order of 287 leases with cottages on them in the park.

The so-called policy changed sometime after 1975 by the addition of the concept that cottages would be acquired on a priority basis as determined by the master plan for Rondeau Park. In early 1975, the Rondeau Provincial Park Advisory Committee made 104 recommendations in its report. The report was to be reviewed by the Minister of Natural Resources and therafter given to the consulting firm of W.E. Coates and Associates of Guelph, Ontario, which had been hired to develop a master plan for the Provincial Park. The consultant was then to prepare plan alternatives based on the approved policy recommendations and return them to the Advisory Committee in the spring of 1976. The Advisory Committee was to then consider the alternatives and select the one which it believed best fit the needs of the public and the recommendations of the committee. The consultant, after public hearings, was to refine the chosen concept which was then to become the master plan for the Provincial Park.

The so-called policy of 1954 as articulated early in the history was unfettered and unconditional insofar as purchases were concerned. That was again changed without the benefit of any Cabinet approval in 1978 when another condition was imposed, ie.,

the availability of funds. The cottages would now only be purchased if they were in a priority area and if funds were available. Again, the facts do not appear to have borne out that there really were any priority areas because in 1980 and 1981 properties were purchased from all of the areas except two. On August 18, 1978, the then Minister of Natural Resources, the Honourable Frank S. Miller, gave a press release19, which made the following points:

(1) Cabinet had approved a plan to deal with inequalities in a government policy to remove private cottages of old leases in Algonquin and Rondeau Parks by 1996.

(2) The leaseholders were to have the option of choosing to go under a plan that would extend their right to stay in the Park but not beyond 1996 or maintaining their present lease.

(3) He said "This plan does not change the government's basic policy laid down in 1954 for removing private cottages within the parks by 1996, it simply provides a more humane method of lease termination",. In the same press release, he said "but the lessee joining the plan would NOT be allowed to transfer the lease interest, except to a surviving spouse, and would have to begin paying annual rent equal to ten percent of the market value of the land”. It should be noted that nothing was said about the acquisition of leasehold interests owned by cottage holders who had purportedly been told in "the government's basic policy laid down in 1954" that their leases would be purchased if they so requested”.

However, the most difficult aspect of the new plan was that a lessee joining it would not be allowed to transfer his interest except to a surviving spouse. In many instances, particularly to those of senior years, this was seen as unfair and a further demonstration of inhumane treatment. If the leases were going to be otherwise valid until 1996, why should the death of a leaseholder result in a termination of the lease? In early 1973, the whole matter did go to the Cabinet, from what we can gather, and the matter was again reviewed. The review was brought about by no small measure,

19 Press Release by Minister of Natural Resources Frank Miller, August 17, 1978 (Document Brief – Tab 6 )

because of a memo prepared by the Honourable Darcy McKeough, then not a member of the Cabinet, to the Honourable A.B.R. Lawrence, the then Minister of Resources Development. 20.

On August 4, 1972, the then Minister of Natural Resources, the Honourable Leo Bernier, responded to Mr. McKeough with a letter. In the second sentence of the first paragraph, the Honourable Minister says "I can assure you that this matter is being given careful consideration, particularly in view of the extremely high demands on recreational lands projected for the next 20 years". He also went on to say: "I am instructing my officials to begin composing a long term projection of public demands on our existing park areas so that we can begin to seriously consider a long range project of land acquisition. It is my belief that cottagers have every right to have their long range needs considered as part of this planning process". 21

We now know, particularly in view of the statistical analysis which will be demonstrated later in our submissions, that the projections for "extremely heavy demands on recreational lands projected for the next 20 years" were never met. If such projections were ever made, we have not had evidence of them. The events that transpired over the next 40 years demonstrated that the demands never materialized.

In a brief prepared by C.R.Tilt in October 1972 22 and submitted to Cabinet , in a summary in the third paragraph, we see the statement:

"land occupied by the leases must be made available to the general public so that the extremely heavy demands on present use areas can be disbursed in

20 Letter dated June 25, 1972, McKeough to Lawrence (Documentary Brief, Tab7 )

21 Letter dated August 4, 1972 Bernier to McKeough (see Documentary Brief, Tab 8,) 22 C.R.Tilt, The Acquisition of Leased Lands in Provincial Parks (Algonquin and Rondeau) (Document Brief, Tab 9,p3) order to provide for more diverse high quality recreational experiences for the increasing number of users".

Nowhere throughout the submission do we see any comment or commentary or suggestion or figures that tend to support or even speak to the question of extremely heavy demands. At the 3rd page Tilt brief, in the third paragraph, the last sentence thereof reads: "Friction and cmpetition are occurring at an increasing rate between the lessees and the Park users". Again, there is absolutely no support for this statement either in the brief submitted to Cabinet or in any other factual data ever presented to anyone associated with the RCA or any Rondeau Leaseholder, many of whom have had direct contact with Ministry Officials. The first time it appears to have arisen is in the meeting between Mr. Keenan of the Ministry and Mr. McKeough, whose comments articulately set out the rebuttal.

At page 5 of the Tilt brief, the report to Cabinet reads:

"BACKGROUND INFORMATION The policy decision was made by the government in 1954 that no new leases should be issued for lands in provincial parks. However all leases in force would be permitted to run their full 21 years term plus one 21-year renewal, as contained in the lease agreement. Leaseholders were advised of this decision. The right-to-renewal clause was deleted from all renewals after 1954. It was recognized and agreed upon in 1954 that provincial parks should be established for the use of the general public without prejudice. Consequently it was agreed that there should be no private tenure within provincial parks. The leases in provincial parks represent a privilege not generally available. The policy of acquiring leasehold interest offered for sale at prices considered fair, followed from this initial policy decision.

(1) The policy was approved by Parks Integration Board, Treasury Board and Cabinet. (see appendix) (2 ) Purchases are made when leases are offered for sale and recommendable prices can be negotiated. If prices are to high, sale on the open market is permitted. Title transfers must have Ministerial approval which, could be considered as first right of refusal.

(3 ) Most lessees seem to prefer to sell to the Province for cash.

(4 ) Objections have been raised by adjacent municipalities, business men, organizations and clubs, citing loss of business locally the cause for concern."

At page 6 of the Tilt Brief, the background information continues as follows: "The rationale for removing the leaseholds from provincial parks has been, that the cottages located on the leased land occupy some of the most attractive and easily developable recreation sites within the parks. Sites of better, similar and poorer quality have already been developed for recreation use. In most cases, the developed sites are sustaining use at a level at which it is not possible to maintain them in a stable state of maintenance and erosion control. The most economical expansion to meet increasing demands is possible on lands now held under lease. Other park lands can produce only a lower quality of recreation experience for the user, at an increased cost for development. Efforts are now being made and emphasis placed on the constant upgrading of provincial park facilites in order to provide a high quality of recreation experience for the user. The Frost task force made the following statement in the Report dated 11 May 1971: "The continued existence of cottages, private youth camps and lodges within Algonquin (emphasis added) is at odds with the basic concept that the park is to become the average man's wilderness. Such facilities should therefore, following the policy announced in 1954, be removed from the park area over a period of time as their leases expire".

Certain observations should be made. Firstly, it would appear that the memorandum is referencing Algonquin Provincial Park and not Rondeau. Indeed, even

the 1954 policy came about as a result of a study relating to Algonquin and not Rondeau at all. This is not a speculative statement as an exchange of correspondence between Premier Bill Davis and a cottage owner is completely corroborative of this comment.

In a letter of April 4, 197423 from the Premier of the Province of Ontario, then The Honourable William G. Davis, to Carl Watson, president of the Rondeau Park Leaseholders Association. In the third paragraph he says as follows:

"In 1954 the government called for a review of park policy particularly as applied to Algonquin Provincial Park. Acting on the findings of this study, Cabinet approved action to return the park as near as possible to its wilderness state over a given time. This involved honouring the terms of existing park leases, but granting no further options to renew. The policy was applied to Algonquin immediately, but apparently there was some question in the mind of the then administrators as to whether or not it was intended to apply to Rondeau Park."

This letter was in response to a letter dated February 19, 1974, from Mr. Watson 24. In that letter Mr. Watson summarized the situation to date and indicated it had only then come to light that some of the leases renewed up to and including 1957 did, in fact, contain renewal clauses whereas other leases renewed during the period did not.

In other words, the Rondeau Leaseholders, acting in good faith and on the belief that the so-called policy had been, in fact, passed by Cabinet to apply to them as well, did not get into any heavy research on the subject until 1974, ie., 20 years after the so-called policy inception and 18 years after they first might have heard of it through the

23 See Document Brief – Tab 12 24 See Document Brief – Tab 10

Deputy Minister's letter. They then found out that it came about as a result of a study dealing with Algonquin Park. It is unquestionable from the Premier's letter of April 4th, that there was no study involving Rondeau Park. In fact, it is highly unlikely that there was ever any written statement of the policy. At page 10 of the Tilt brief (the 1972 submission to Council) it is stated in the first line that Cabinet gave “verbal approval” in 1954 to the policy. Could it be that in the intervening two years, it being a verbal policy, it not having been acted upon, that it was extended to Rondeau by virtue of bureaucratic mandate as opposed to political decision formalized into law by Order in council?

In his letter dated April 4, 1974, Premier Davis states on the second page:

"In 1956, it was ruled that the policy did indeed apply to both parks and this was later confirmed by the Parks Integration Board. In the interim, however, six Rondeau leases had been issued containing the renewal clause. By the time it was recognized that these clauses should not have contained the renewal clause, the documents had already been signed and issued. All remaining leases were issued without the renewal clause".

That statement raises more questions than it answers. Firstly, who ruled that the policy applied to both parks? How did the Parks Integration Board, which was an advisory panel to the Minister, obtain the power of confirmation? Is it plausible that six leases escaped detection over a two-year period, or that it took that length of time, remembering that that was the period closest to the verbal policy statement by Cabinet, to recognize that the leases should not have contained the renewal clause?

Eventually, in 1978 the Davis Government modified the “1954” policy by instituting a common termination date of 1996 or alternatively the deal of the leaseholder and spouse, which ever occurred first.

In March of 1985, under the direction of the new Minister of Natural Resources Vincent Kerrio, further public consultation occurred. The Provincial Park’s Council eventually submitted a report to the Minister recommending an extension of the cottage leaseholds to 2017 which was formerly adopted by the Government and announced on August 1, 1986. The policy also removed any earlier termination by the death of the leaseholder or their spouse as this policy was found to be unfair. Therefore, all leases now have a common expiry date in 2017. This was eventually promulgated into law by virtue of Ontario Regulation 952.25

STATISTICAL EVIDENCE

Historically, Ministry of Natural Resources explanations for the "Cabinet decision" to remove cottagers from Rondeau Park have stated that it was necessary to do so in order to satisfy the demand for additional facilities, especially beach areas and camp site areas. Statistical data compiled by the Ministry itself shows, however, that by the time the Ministry's draft recommendations, policy reports and draft Master Plans were finally being submitted to Cabinet in the period of 1978-1980 such need did not exist and the underlying assumptions of the "1954 policy" were no longer valid.

As mentioned before, in 1954 there were only six provincial parks in Ontario. In 1954 Rondeau Park encompassed 5,120 acres. Today, Rondeau Park has more than doubled in size to 11,900 acres. (2008 Ontario Ministry of Natural Resources Statistics 26). By 1960 there were 72 Ontario provincial parks with a total acreage of 2,354,481 acres. By 1972 there were 115 provincial parks covering 10,363,312 acres.

25 Provincial Parks Act RSO 1990 – Regulation 952, para. 8(b) 26 Park Statistics 1998 -2008 In 2010 there are 330 Provincial parks covering 9 million hectares (22, 239,500 acres).27

In spite of the dramatic growth in the numbers of provincial parks and the acreage they embrace, the Ministry's own data show that use of provincial parks was actually approximately at its peak just at the time in the early to mid 1970's when the Ministry began to aggressively push for removal of cottagers from provincial parks. For example, numbers of visitors to Ontario's provincial parks dropped from a high of 13,658,619 in 1971 to 9,537,636 in 200828.

Further, in 1957 when there were 55 provincial parks there were only 1,849 developed camp sites in all Ontario's Provincial Parks. Analysis of the statistics with respect to developed camp sites and camper nights or days used reflects a similar pattern. In 1960 there were 7,489 developed camp sites in Ontario provincial parks. By 1974 there were 20,036 developed camp sites. Today there are over 19,349 developed campsites in the whole province 29.

Rondeau Park's experience follows the provincial trend, but the drop off in use has been even more acute. In 1972 Rondeau Park had 558,147 visitors. The number of visitors declined each year thereafter. In 2008, Rondeau attracted 163,275 visitors per year 30.

Data concerning camping at Rondeau is even more illuminating. In 1971 there were 433 developed camp sites at Rondeau Park. In 1972 there were 411 developed

27 Ministry of Natural Resources Web Page -http://www.ontarioparks.com/english/welcome.html

28 Park Statistics 1998 -2008

29 Park Statistics, ibid

30 Park Statistics, ibid

camp sites at Rondeau Park. Today there are 264 developed campsites attracting approximately 67,897 overnight visits per year. 31 It is 65% occupied.

The inescapable conclusion is that the fundamental assumptions on which policy decisions of the late 1950'S, 1960's and early 1970's were being formulated were no longer valid after 1975. Instead of expanding the number of developed camp sites at Rondeau Park, there has actually been a cut back.

OTHER REASONS TO PHASE OUT THE COTTAGES

As noted in the introductory comments, there are several other reasons that are offered as reasons to phase out the leases in Rondeau Park. Some has received official endorsement and expression, while other are voiced in an unofficial fashion. The reasons offered are as follows:

(a) The environment

Today’s effort by the Ministry to Phase Out the Cottages in Rondeau Park seems to be more couched in terms of the environment and ecology. The Government has passed the Environmental Protection Act which is enforceable throughout the Province and not simply within the boundaries of the provincial parks. The new Provincial Parks and Conservation Reserves Act expressly mandates preservation of “ecological integrity” as the first priority in the planning and management of the provincial parks i32 . The Statute further mandates that “……. the restoration of ecological integrity shall be considered”.

31 Park Statistics, ibid 32 PPCRA, s. 3(1)

However there has not been any evidence tendered in support of the assertion that the cottagers are somehow bad for the environment. There has been no objective study presented that demonstrates that the removal of the cottages will further any of the goals of the EPA or the PPCRA.

In fact, it can be argued that the cottagers are wonderful and supportive stewards of the Park. Cottaging is a very low impact activity. The cottage community has been in Rondeau for over 100 years and yet Rondeau has the greatest ecological diversity of any Ontario park.

If however the Government is of the opinion that “restoration of ecological integrity” requires them to eliminate cottages from the Park, we respectfully suggest that removal of the cottagers is only a small step if this is the goal. Elimination of camping as an activity would surely also follow. The asphalt road system extending over several kilometres within the Park would have to be removed. The Government would have to determine how the forest can be restored given the logging that occurred during the initial year of the Park’s existence as approved by the Park superintents.

Again, suffice to say that there has been no objective evidence presented that would justify the removal of the cottages in pursuit of the goal of restoration of ecological integrity. And it is to be borne in mind that this is not the only mandate of the legislation. The Act also expressly requires that consideration be given to “recreational enjoyment33”

(b) Interference with other park visitors and campers

There has been a further rationale that cottagers in Rondeau occupy too much of the park area to the detriment of visitors and campers, and particularly that they obstruct access to the beaches. Firstly, all the beaches (as are the dunes, the marsh, the forest

33 PPCRA, s. 5(3)

and all aquatic areas) in the park are public which is freely acknowledged by the leaseholders. There is no effort by the cottagers to exclude day users from the beach areas immediately adjacent to the cottage lots.

Secondly, all 289 leases occupy only 1% of the total area of Rondeau. All of the cottages are set well back from the Lake (between 50 to 100 metres).

(c) The Leaseholders are an expense to the public purse & municipal taxes (grant in lieu of taxes).

There are essentially three direct ways that Rondeau Leaseholders remit monies in exchange for the use of their lot. Firstly, like all users of the Park, they purchase a seasonal pass. Secondly, they pay an annual lease fee for the use of the lot. And thirdly, they pay service fees for the services such as garbage removal that they consume.

The lease rates are determined through an assessed by an independent assessment process at the assessed market rates.

The RCA is under the impression that the monies contributed more than offset any related expenses associated with their presence in the Park. Rick Hornsby, a former superintendant of the Park advised the RCA that the lease fees paid by the cottagers are sufficient to fund Rondeau and 8 other Parks.

It is also the understanding of the RCA that their fees cover their fair share of the annual grant paid by the MNR to the Municipality of Chatham Kent in lieu of municipal taxes. If this is not accurate, the RCA is amenable to “paying their fair share” of this grant in lieu of taxes. This issue was canvassed by the consultant hired by the Ministry in 200034. At that time, the Minister of Finance estimated that the cottagers leased lots

34 Cumming Cockburn Report, ibid, p. 5.1 – Document Brief Tab 1

represented 67% of the value of the Park. This number may be slightly lower today as there are fewer cottages but the RCA agrees that the formula used by the Ministry’s consultant is a reasonable methodology. Therefore, if the lease fees do not presently cover the cottagers’ fair or rateable share of the grant in lieu of taxes, the RCA is more than prepared to have an additional charge represented their fair share of the grant.

(d) Rondeau is the only provincial park with cottages

There are many other provincial parks in Ontario with cottages, as there are across the country. Algonquin has approximately the same number of cottages as Rondeau, leased under the same conditions. Killarney Provincial Park has numerous cottages within its boundaries that are owned outright and predate the formation of the park. In 2005, the Government created Kawartha Highlands Provincial Park which has hundreds of privately owned homes and cottages within its perimeter. (According to the Ministry’s web page the following parks have cottages within their borders -Rondeau, Algonquin, Awenda, Balsam Lake, Bon Echo, Bonnechere, Kawartha Highlands, Killarney, Presqu’ile, Sandbanks, Sleeping Giant and Sturgeon Bay). Ontario Parks even rents out cottages There are 5000 cottages in 17 provincial parks in Manitoba, 2000 cottages in provincial parks in Saskatchewan and 500 cottages in provincial parks in Alberta.

(e) All leases in Ontario parks are terminating in 2017.

The commercial leases in Algonquin Park (children’s’ summer camps, lodges, and outfitters) were extended in 2005 for renewable terms of up to 60 years.

CONCLUSIONS

From all of the foregoing we have seen the following:

(1) The original reasons (rising demands for recreational property) promulgated and used to justify the 1954 policy of phasing out private cottage leases are no longer applicable.

(2) There is no compelling rationale being offered to change the status quo. There is no evidence of environmental degradation, public outcry, unfair treatment, etc.

(3) There are numerous good reasons to allow the cottage community to continue to flourish as it has for over 100 years. Economically, it contributes both directly to the well being of the Park, and indirectly to the communities surrounding the Park. Ecologically and environmentally, the cottagers have shown themselves to be good stewards of the Park. The local community supports the Rondeau cottage community.

Therefore, the following alternatives are available to the Ministry:

(1) Maintain the present policy, notwithstanding its harshness and attempt to remove the leaseholders when the leases expire in 2017.

(2) Maintain the current proposal for the lease extension to 2038 – a phase out proposal – which proposal has been recognized by past governments as unfair and inequitable, and determine how many cottagers accept the proposal.

(3) Modify the current proposal into a straight forward 21 year lease extension to 2038 without any restriction on the ability of the leaseholder to convey the lease.

(4). Renew on a basis in accordance with the historical (ie. pre-1954) terms and conditions – renewable 21 year leases. Implicit herein would be the recognition that cottagers would be in Rondeau Park permanently. The government could, if they choose to do so, continue to buy up cottage property in the market place, and there can therefore be no accusation of expropriating the cottage owners assets without compensation. With the benefit of a longer term lease, cottage owners will not object to making the necessary expenditures to ensure compliance with any necessary improvements to ensure preservation of the natural environment.

(5) Renew on a longer term lease – say 50 years -as recommended by Cumming Cockburn report and make the necessary adjustments to lease rates.

(6) Convey the lots in fee simple to willing buyers in the market place. This would have the distinct advantage of removing the issue of the lease renewal from future administrations and effectively deal with any issues of market distortion, municipal taxes and grants in lieu, as well as generate a significant cash realization for the Ontario government. Other provincial parks such as Long Point and Presqu’ile have private ownership within the park boundaries as well.

RECOMMENDATIONS

The RCA strongly recommends options 4, 5 or 6. Whether the government chooses a longer term lease, or a lease with a right of renewal, or a conveyance in fee

simple, the express recognition of the future continued presence of the cottage community would be a welcome acknowledgment of the historical role that the cottage community has in the Park. Such a long term solution does not diminish in any way the ability of the MNR to exercise its jurisdiction and mandate of preserving ecological integrity within its Parks. It protects all parties’ interests in the most efficient and unassailable manner. And a community that has been a large part of the development of Southwestern Ontario will continue to thrive and contribute.

As noted above, the RCA is delighted with the prospect of a lease extension. We appreciate and acknowledge the efforts of the Minister, her staff, and our MPP Pat Hoy. We trust that you will give our submissions careful consideration and would be pleased to provide any further answers that you may require.

All of which is respectfully submitted.

The Rondeau Cottagers Association.

Date Submitted: November 17, 2010

[Original Comment ID: 129094]