Appeals from the Water Act
2008
Decision Date:
August
28, 2008
Panel:
Alan
Andison
Decision Date:
August
14, 2008
Panel:
Alan
Andison
Keywords:
Water Act - s. 92(1); jurisdiction; permit; remedy;
right of way; power transmission line
Fishstriker Industries Ltd. (“Fishstriker”)
appealed a decision of the Deputy Comptroller of Water
Rights (the “Deputy Comptroller”), Ministry of
Environment (the “Ministry”), refusing Fishstriker’s
application to terminate a permit issued under the
Water Act.
The permit is held by BC Hydro and Power
Authority (“BC Hydro”) and authorizes a right of way
across specified Crown land where a transmission line
was constructed. The permit was originally issued in
1953 by the then Deputy Minister of Lands. Two
transmission lines extend through land that is now owned
by Fishstriker, although the land was Crown land when
the transmission lines were constructed. One of the
transmission lines is covered by a right of way
registered on the title of Fishstriker’s land, and the
other is not. The unregistered transmission line was
the subject of the appeal. Fishstriker appealed on the
grounds that the permit never provided legal authority
for the transmission line on its property, and the
permit is invalid to the extent that it purports to do
so.
The Board requested submissions from the
parties on its jurisdiction over the appeal, including
whether it had jurisdiction over the remedy sought by
Fishstriker; namely, to terminate the permit.
The Board found that Fishstriker was
seeking a remedy that related to the merits of the
permit. In particular, Fishstriker was asking the Board
to address the impact of the permit on its land. The
Board noted that the permit was issued many years ago,
and the period for appealing the decision to issue the
permit had expired long ago. The Board found that
Fishstriker was effectively trying to circumvent the
limitation period for filing an appeal of the permit.
The Board held that the Deputy Comptroller’s decision
simply maintained the status quo, and his
decision did not have a physical effect on Fishstriker’s
property. Consequently, the Board found that it had no
jurisdiction over the appeal under section 92 of the
Water Act. Specifically, it found that the Deputy
Comptroller’s decision would not have a physical effect
on Fishstriker’s land. In addition, the Board found
that the remedy Fishstriker was seeking was in the
nature of a declaration, which is not a power that the
Board has been given under the Water Act.
Accordingly, the Board concluded that it
had no jurisdiction over the appeal.
The appeal was dismissed.
Decision Date:
July 22, 2008
Panel:
Alan
Andison
Keywords:
Water
Act - ss. 2, 5, 7; fully recorded; domestic use of
water; licence
John and Arlene Liket appealed a decision
of the Assistant Regional Water Manager (the “Assistant
Manager”), Water Stewardship Division, Ministry of
Environment (the “Ministry”), refusing to issue them a
licence to divert and use 500 gallons of water per day
for domestic use purposes from Peter Hope Lake, located
near Kamloops. The Assistant Manager made his decision
on the basis that Peter Hope Lake is fully recorded
under existing licences and there is insufficient water
for new licences. The Appellants requested that the
Board reverse the Assistant Manager’s decision.
The Appellants own lakefront property on
Peter Hope Lake, which is popular for fishing, wildlife
viewing, and other forms of recreation. The Appellants
built a small cabin on their property in 1973, which
they use periodically during the year. Since they began
using the property, the Appellants have used buckets and
a hand pump to draw water from the lake for domestic
use. In 2007, they applied for a water licence for
domestic use. The Appellants estimated that they use
about 6 gallons of water per day when they are at the
cabin, although their application was for more than
that. The Appellants submitted that granting a licence
for a small amount of water would not impact the lake.
The Board considered whether there is
enough water to grant the licence. Based on the
evidence, the Board found that there was insufficient
water to meet existing licensed demand in the watershed,
and therefore, no new licences for consumptive use
should be granted, even for small amounts of water. A
detailed study of water availability in the Peter Hope
Creek watershed was completed by the Ministry in 2006,
and it concluded that the watershed had a deficit of
1021 acre-feet of water based on existing licensed
demand, and therefore, no further licences should be
granted. The Board found that evidence of water
availability in the watershed since that study shows
that a water deficit continues to exist.
Furthermore, there was evidence that
Guichon Ranch may have to reclaim two water licences
that would allow it to draw up to 1610 acre-feet of
water from Peter Hope Lake. Guichon Ranch formerly held
two water licences that together authorized the
diversion and use of 1610 acre-feet of water for
irrigation and stock watering purposes, but in the late
1990’s it transferred those licences to the Ministry’s
Fish and Wildlife Section, which is holding them for
conservation purposes. The Board heard evidence that
Guichon Ranch may need to reclaim those water licences
because its well has become unreliable and it has had to
truck in water for its cattle. If Guichon Ranch
reclaims its water licences and withdraws water from the
lake, the lake’s water level could drop by up to seven
feet.
Accordingly, the Board concluded that the
Assistant Manager’s decision should be confirmed.
The appeal was dismissed.
Decision Date:
March
20, 2008
Panel:
Alan
Andison
Keywords:
Consent order; conditional water licence; water licence;
cancellation of licensed rights
In April 2007, the
Assistant Regional Water Manager (the “Water Manager”)
cancelled a Conditional Water Licence that had been
issued to Fraser River Ranching Ltd. (“Fraser River”) on
Harding Spring for irrigation purposes. Fraser River
appealed the decision.
By consent of the
parties, the Board ordered the Water Manager to
reinstate Fraser River’s licensed rights, but to amend
the Conditional Water Licence. The Board also ordered
the Water Manager to amend Fraser River’s Final Water
Licence on Harding Spring. In addition, the Board
ordered the Water Manager to grant Mr. Boomer a water
licence for domestic purposes on Harding Spring.
Finally, the Board ordered Fraser River and Mr. Boomer
to share equally in the costs and labour of installing a
diversion box to allow diversion from Harding Spring
under the licences.
The appeal was
allowed.
Decision Date:
February 29, 2008
Panel:
Lynne
Huestis
Keywords:
application for recusal; bias
In 2005, the Regional Water Manager granted a
conditional water licence (the “Licence”) to Christopher
and Birgit Chart (the “Charts”). The Licence permitted
the diversion and use of water from McFayden Creek in
the Nelson Water District for residential power
purposes, and included a number of conditions. Barry and
Marilyn Burgoon and Helen Elzinga (the “Applicants”)
appealed the issuance of the Licence on the grounds that
it posed a risk to the homes, properties, water and
lives of the residents downslope of McFayden Creek. The
Charts filed two appeals: one against the Regional Water
Manager’s decision to refuse their application for a
water licence for domestic consumptive uses, and another
against some of the conditions attached to the Licence.
Before the hearing of the appeals
commenced, the Applicants added a new ground for appeal.
They claimed that the Regional Water Manager had failed
to consult with the Sinixt First Nation prior to issuing
the Licence, and that Ms. Burgoon should be granted
standing to represent the interests of the Sinixt
Nation. The issue of Ms. Burgoon’s standing to make
submissions regarding aboriginal interests was dealt
with on the first day of the hearing. In an oral ruling,
the Panel found that Ms. Burgoon did not have standing
to make arguments regarding the Regional Water Manager’s
duty to consult with the Sinixt Nation. The Applicants
had failed to demonstrate that she met the requirement
for standing to make those submissions, either in her
personal capacity or on the basis of public interest
standing. The hearing proceeded in relation to the other
grounds of appeal, but was not concluded, and was
therefore adjourned until it was scheduled to reconvene.
After the hearing adjourned, but before
it reconvened, the Applicants made a written application
to the Board seeking that the Panel Chair recuse herself
on the ground of bias. The Panel Chair was employed as
legal counsel to the Federal Treaty Negotiation Office
(the “FTNO”). The Applicants submitted that the FTNO
had, in court proceedings, taken the position that the
Sinixt Nation no longer existed as an aboriginal entity
to which obligations were owed. Therefore, the
Applicants argued that the Panel Chair could not be said
to be neutral and impartial with respect to the issue of
consultation with the Sinixt Nation.
The issue considered by the Board was
whether either an actual bias or a reasonable
apprehension of bias had been established on the
evidence. The Board found that there was no objective
evidence to support of finding of actual bias. In its
preliminary ruling at the oral hearing, the Panel only
addressed the issue of the Applicants’ standing in terms
of their ability to represent aboriginal interests.
Issues respecting the existence of the Sinixt Nation and
the legal merit of any assertions of aboriginal rights
and title were not considered. Further, the Board did
not comment on any obligations that the Regional Water
Manager may have owed to the Sinixt Nation. Therefore,
the Board found that the Panel Chair had not
predetermined the narrow legal question of standing that
was before the Panel.
Regarding the allegation of a reasonable
apprehension of bias, the Board determined that a
reasonable, informed person looking at all the facts
would conclude that there was no real likelihood that
the Panel Chair would favour one party over the other in
deciding the issue that was before the Panel. Her
employment circumstances were irrelevant to the question
of the Applicants’ standing to represent aboriginal
interests in the proceedings. Furthermore, given that
the Panel’s ruling was limited to the question of
standing, the Board found that the Applicants’
allegations were purely speculative.
Accordingly, the application for recusal
was denied.
Decision Date:
January 10, 2008
Panel: Alan
Andison, Richard Cannings, J.A. (Alex) Wood
Keywords:
Water Act - s. 9; species at risk; approval;
changes in and about a stream.
In 2006, the Assistant
Regional Water Manager (the “Manager”) refused an
application by 0707814 BC Ltd. (the “Appellant”) for an
approval to “make changes in and about a stream” under
section 9 of the Water Act. The Appellant had
applied to infill a ravine on its property in Abbotsford
BC, in order to construct a road for the purposes of a
residential development. The application was refused on
the grounds that it would negatively impact the habitat
of at least four provincially or federally listed
species at risk found in the wetland area of the
property: the Pacific waterleaf, the red-legged frog,
the Oregon forestsnail, and the Pacific sideband.
The Board considered
four issues. The first issue was whether the design of
the proposed infilling would protect the hydrological
regime of the area. The Board determined that it could
offer protection, but only if three additional
conditions regarding design flows for the site were
added to any final approval of the proposal.
The second issue was
whether the design of the proposed infilling addressed
the environmental damage that would result from the
proposed works. The Board accepted the Manager’s
evidence that four species at risk inhabited the
property and could be impacted by the application. The
Board also confirmed that the impact of a proposal on
species at risk is a relevant consideration in the
context of a section 9 application, and that the overall
weight to be given to this matter depends on the gravity
and magnitude of the impact on the species. The Board
found that, given the level of current and future
development in surrounding areas, the species at risk
identified (with the exception of the Pacific Waterleaf)
were unlikely to persist on the property, even if the
application was denied. The Board also noted that the
proposal actually included certain protections for those
species, which increased the likelihood of some of them
surviving on the property. Therefore, the Board found
that the proposal would not have an irreparable impact
on the species at risk identified, and that it addressed
the environmental damage that would result from the
proposed works.
As a result, the Board
found that it was appropriate to grant the application,
subject to a number of conditions to protect the site’s
hydrological regime and the species at risk identified.
Accordingly, the Board sent the matter back to the
Manager with directions to issue an approval to the
Appellant, and to include the conditions specified by
the Board.
Finally, the Appellant
applied for an order requiring the Manager to pay the
Appellant’s costs associated with the appeal. The Board
denied the application for costs.
Accordingly, the
appeal was allowed.
|
