NCC Gives Encroachment Permits to Meech Lake Residents Behind Closed Doors
In a document titled “Opportunity to Regularize Encroachments on NCC Land at Meech Lake,” the National Capital Commission has formally enshrined violation of Gatineau Park’s master plan and conservation plan, and the encroachment of Meech Lake residents on federal property through various occupation permits (land, lakebed and shoreline).
That document was obtained under Access to Information Request No. A-2019-00020/LRE.
Approved by former CEO Mark Kristmanson, the document represents a death sentence for Gatineau Park’s public and ecological vocations at its most popular location (nearly 40% of visits to the park are concentrated at Meech Lake, according to the Conservation Plan, (p. 165)).
While bending over backwards to violate its own policies and forgive the illegitimate occupation of Gatineau Park, the so-called “Capital Conservation Park,” the NCC closes unofficial trails, parking lots (Hickory Trail and Booth), picnic sites (Booth), parkways, etc... It often justifies restricting public access because of the pandemic, or to protect the environment from overuse, inflating visitorship figures to make its case. According to the NCC’s own figures, 600,000 people visit the park every year; yet it constantly claims there are 2.7 million “visits” to the park per year.
(Someone at the NCC seems to have clued in on the outrageousness of saying there are 7,397 people in the park, 365 days a year (2.7 millon ÷ 365): the draft 2020 Gatineau Park Master Plan says it needs "better data for Gatineau Park vistors" (p.6).)
The scandal is all the more shameful because the NCC is granting encroachment privileges free of charge to residents whose association has for decades been advocating closure of public facilities at Meech Lake. There is plenty of evidence of that.
Furthermore, this memorandum makes no mention of the most egregious encroachment: a house built on the lakebed at 692 Meech Lake Road. That house belongs to a Meech Lake Association board member… whom the NCC appointed to its public advisory committee on renewal of the Gatineau Park master plan... The memorandum refers to all kinds of structures, except this house built in the fish habitat... The conflict of interest is doubly blatant and glaring…
The NCC document clearly outlines the problem: “There are approximately 60 encroachments of private property structures partly or completely on NCC land at Meech Lake in Gatineau Park. These structures vary from boat houses, docks, stairs, walls, and fences to changing cabins and flower beds.”
Unfortunately, the NCC’s ecological objective and the solution it proposes are diametrically opposed. The Memorandum says that the result of this approach “will be increased protection of the lake and natural resources” (section 11). However, it negates those objectives by granting “personal easements” or “occupation licenses to the “owner, spouse, children or grandchildren until the end of the structure’s useful life, or 49 years (not transferable upon sale outside the family).” (Section 9.1 of the Memorandum.)
The 2010 Gatineau Park Ecosystem Conservation Plan stipulates that “easements and property rights (e.g., private properties and developments, residential leases) are not consistent with the Park’s mission” (p.19). Every master plan concurs.
In the 60 or so letters she sent Meech Lake residents in 2018, park director Christie Spence wrote: “Having management and control rights in respect of Meech Lake, and as owner of the property on which your infrastructure encroaches,” the NCC “is disposed to permit its encroachment on federal park property at Meech Lake. The granting of this permission is conditional to your ongoing compliance with municipal by-laws and regulations, namely the Municipality of Chelsea Zoning By-law number 636-05 and MRC des Collines-de-l’Outaouais By-law No. 137-09 aimed at reinforcing provisions respecting the protection of the shorelines of lakes and watercourses.”
In March 2009, the regional county municipality—the MRC des Collines—adopted Bylaw 137-09 to fight spread of blue-green algae by compelling residents to renaturalize the first five metres of their shorelines. However, more than 50% of Meech Lake residents continue to violate bylaw 137-09 and the municipality has not issued any fines. Penalties for failing to green the shoreline range from $300 to $4,000, and they are consecutive for every day residents have failed to comply. The deadline for complying was May 12, 2011. Imagine the revenue the NCC could levy: the fines are for every day residents have failed to comply. May 12, 2011 was 3,418 days ago. Say 20 residents had been violating the bylaw and each one of them was fined at the lower end of the scale: $300. That sum, multiplied by 3,418 x 20 residents = $20,508,000. Imagine the road repairs the Chelsea mayor could make by collecting all those unpaid fines.
Ms. Spence’s letters contradict section 19 of the memorandum, which says “Our recommendation is to ... regularise or remove all encroachments on NCC land at Meech Lake, where practicable.” Allowing occupation of NCC lands at Meech Lake and removing all encroachments are completely contradictory objectives. A contradiction repeated in the media lines included in the July 12, 2017 Memorandum to disgraced former CEO Mark Kristmanson.
To put this issue in its proper context, it’s worth recalling that all Gatineau Park master plans emphasize that private properties are harmful to the Park (that was one of arguments used to send expropriation notices to lac Philippe residents in the 1950s—most of whom were francophones...). From the 1950 Gréber Plan, to the 1952 Report of the Advisory Committee on Gatineau Park, to the 1980, 1990 and 2005 Gatineau Park Master Plans, every study of this issue has described the presence of private property in Gatineau Park as being at odds with the park’s mandate and vocation.
Moreover, the Gatineau Park Conservation Plan (2010) notes that the presence of private property does not reflect “the ecological values of a conservation park,” (p. 57) that it places “stress on the host environment in the form of water pollution, habitat fragmentation and the erosion of riparian habitats” (p. 62). Echoing all of the park’s master plans, the Conservation Plan recommends the “purchase of privately owned land” and “ demolition of infrastructures and restoration of vegetation on demolition sites” (Appendix 3-6).
Unfortunately, since 1992, the NCC has allowed construction of 134 new houses in the park, including 11 at Meech Lake since 2006. More recently, the NCC confirmed once again that it cares nothing for its master plan in a letter urban planner Hugues Charron sent to Chelsea council on September 25, 2018, expressing support for the construction of a two-storey house in the shoreline buffer zone at 774 Meech Lake Road. Notwithstanding that this construction would violate the municipal by-law...
Besides, granting residents occupancy privileges violates the spirit, if not the letter, of section 25 of the National Capital Act: “All works of the Commission, whether constructed or executed before or after February 6, 1959, are hereby declared to be for the general advantage of Canada.” This is almost identical to section 92(10)(c) of the Constitution of Canada, which enshrines the declaratory power of the federal government...
As though to minimize the extent of this betrayal of the park’s master plan and public/ecological vocations, etc., the memorandum says: “Any publicity around this matter will generate attention from activists who regularly voice concerns about the present of private properties inside the park perimeter: the usual approach and key messages for that occurrence will suffice.”
It should be noted that the NCC never disclosed that it had issued these encroachment permissions. Nonetheless, in section 23, the July 12, 2017 memorandum includes media lines that are a muddle of platitudes and contradictions:
(i) Gatineau Park’s cohabitation with residential, recreational and rural properties, since its beginnings, has remained an enduring and unique feature of what is today Canada’s Capital Conservation Park. Sustainable management of public property under its stewardship requires addressing encroachment by private property owners on NCC land.
(ii) The National Capital Commission is pleased that the Municipality of Chelsea has taken positive measures to address the issue of encroachment on public land. The NCC will continue to work with Chelsea on this issue and on the sustainable management of Gatineau Park.
(iii) There is no statute of limitation (in French “prescription” or "acquisition prescriptive"...) on real estate title against public property or Crown lands.
Granting encroachment/occupancy permits to Meech Lake residents completely contradicts the first media line, which says “(i) ...Sustainable management of public property under its stewardship requires addressing encroachment by private property owners on NCC land." You don’t address private encroachment on NCC lands by granting occupancy permits (free of charge, to boot). For its part, the third media line (item (iii)) emphasizes that the federal crown does not recognize acquired rights on its lands.
The twisted reasoning in these media lines recalls the obscurantist expression US governments used to justify their war crimes in Vietnam: “We had to destroy the village to save it.”
Finally, the NCC redacted section 13 of the memorandum, titled “Key Risks,” claiming it represents advice or recommendations, pursuant to section 21(1)(a) of the Access to Information Act (three risks are redacted). I believe this exemption also covers solicitor-client privilege.
In my view, these potential risks would include criticism from citizens groups, environmental groups, and the media about granting encroachment privileges to Meech Lake residents, and about pollution, habitat fragmentation, harming the visitor experience, etc. They might also include mention the reaction of parliamentarians regarding official recognition of these encroachments. A number of parliamentarians have spoken on issues affecting Gatineau Park in recent months and years, including the harmful effects of residential proliferation.
Legal considerations may also have been used to redact these potential risks. By granting easements to Meech Lake residents, the NCC, as a Crown corporation, may be creating de facto acquired rights. This could mean that the NCC is creating new case law that condones private encroachment inside federal conservation parks. Unbelievable nonsense only the NCC seems able to commit.
An Illegal Sub-delegation of Authority
Besides, Ms. Spence’s letters represent an illegal sub-delegation of authority (by virtue of the same breaches to various parts of section 12 of the National Capital Act the Federal Court enumerated in Bonin V. Canada). In short, giving rights of way on park land to Meech Lake residents is considered to be a change of land use, which requires approval from the NCC board or executive.
The NCC has informed me that the board never gave Ms. Spence permission to grant occupancy rights to Meech Lake squatters. Below is the text confirming this, written by the NCC’s former secretary and general counsel, Mark Dehler (emailed to me June 5, 2019):
“To date, no occupancy permits have been issued by the NCC. As such, there are no Board/executive committee decisions or minutes related thereto. As provided for in the Gatineau Park Master Plan (Policy #5, in section 6.2.1, Page 53), the NCC intends to move forward to regularize encroachments where appropriate, in consultation with the municipality of Chelsea, and any necessary approvals pursuant to section 12 of the National Capital Act will be sought, if, as and when required.”
The NCC has informed me that Mr. Dehler left his position in December 2019.
But his statement confirms that Ms. Spence did not have board approval for sending those 60 letters to Meech Lake residents. And she still has a job, after putting park land acquisition into supercharged reverse overdrive and thumbing her nose at the National Capital Act.