by DAVE PINK
The owner of a Beamsville-area archery range is prepared to go to the highest court in the land to defend a 214-year-old guarantee that he can use his land as he sees fit, and he has the unwavering support of the Ontario Landowners Association (OLA).
Bob Mackie contends that his nine-acre parcel of land on Zimmerman Road, in the Town of Lincoln in Niagara Region, is subject only to the rules and restrictions of a Crown land patent — essentially a deal that was struck in 1798 between the original land owner and King George III. Mackie argues that the privileges granted in that original agreement were never negotiated away, and that the bylaws and land restrictions imposed in recent years don’t apply.
The Niagara Escarpment Commission disagrees, and successfully argued before a lower court that Mackie cannot use the land for an archery range because it does not conform with the land uses allowed under the property’s agricultural designation.
This fight is far from over, says the archery range operator.
“Our Crown land patents defence has never been upheld in the lower courts,” says Mackie. The next step is probably an appearance before the Ontario Superior Court, but Mackie is uncertain how soon that will happen.
It’s clear though that this case will set a precedent for other Crown land patent claims in the province.
“This is a test case. I’m kind of a guinea pig,” says Mackie.
Neighbour’s complaint triggered legal battle
Mackie bought the land in 1999, but has documents detailing who owned the land and how it was used going back to the 18th century. As well, Mackie says he has documents proving the land was at one time used for a lumber business — a pre-existing commercial use — which should set the precedent for his archery range.
The issue attracted the commission’s attention after a neighbour complained, but Mackie points out that the municipality is OK with his use of the land as an archery range.
Tom Black, president of the OLA, says Mackie has the association’s complete support. “It’s a no-brainer,” he says. “This issue has to be made clear. Up to now we’ve been stumbling along, and we have to get it to a court that has the real ability to test the question.”
The case against Mackie is being pursued by the provincial Ministry of Natural Resources, at the instigation of the Niagara Escarpment Commission. The property nudges up against the base of the escarpment on the Vine Mountain Moraine, but Mackie says it isn’t really suited for farming and that a simple re-writing of the bylaw should be all that’s needed to make his archery range legal. After all, he says, there are several gravel pits nearby, while his archery range is doing nothing to deface the escarpment.
“It doesn’t make any sense that there is no flexibility in the system,” agrees Black.
Ruling raises questions says report
A report prepared for the Ontario Landowners Association supports Mackie’s case, and argues that the lower court ruling wanders into a worrisome area as far as the province’s right to impose land use designations on private property. The report’s author, Elizabeth Marshall of the Canadian Justice Review Board, the OLA’s Chair of Research, concludes that the most recent Mackie ruling challenges the power of all pre-existing land purchase agreements, and not just Crown land patents.
“The entire ruling on Mr. Mackie’s case has raised serious questions that need to be answered. These issues must be dealt with before any other property owner, conveyor, conveyee, etc., fall prey to judicial rulings such as these. These questions must be answered, proper removal of legislation must be implemented and protective measures for the private property owner must be implemented before all other real property transactions/conveyances go forward,” Marshall writes.
Meanwhile, Mackie is continuing to operate Mackie’s Mountain Archery, his sole source of income.
Mackie’s legal fight stems from a complaint made by a neighbour to the Niagara Escarpment Commission seven years ago. Once Mackie was notified of the complaint, he applied for a permit, but was denied because the land was designated agricultural. A restoration order was handed to Mackie in November 2007. He was given 120 days to close down the operation.
But Mackie didn’t bow down. He forged ahead with his business and was then charged with not complying with the order. In July 2010, Mackie was found guilty of not complying with the order and fined $15,000.
Mackie appealed that decision, and his case was made over two days in November and December of last year in an Ontario Court of Justice in St. Catharines. On June 20, conviction was once again upheld.
The only thing Mackie has decided is to keep it business as usual at his Zimmerman Road archery. He said with the popularity of the Hunger Games and a new television show along the same theme, he is getting calls and emails daily from adults and children alike wishing to take archery lessons.
As for the legal battle, Mackie has decided not to make any rash decisions. Options include seeking a judicial review and applying to become a teaching facility. But one thing is clear, Mackie is not ready to call it quits.
“We have to keep going. We have too much invested,” said Mackie. “It’s not a Walmart we’re running here. It’s a very low intensity, quiet activity and they keep referring to it as a commercial operations. That’s a stretch at best.”
Mackie plans to meet with his advisors over the next few days to figure out where to go from here. BF