Decision Date: May 2, 2018

Court: B.C.C.A., Justices Kirkpatrick, Tysoe, Dickson

Citation: 2018 BCCA 183

Michael Lindelauf appealed a decision of the BC Supreme Court regarding a judicial review of a decision issued by the Environmental Appeal Board (the “Board”).

Mr. Lindelauf owns land near Robbins Creek, southeast of Kamloops, BC. A stream that flows from the upper part of Robbins Creek via an unauthorized diversion runs through his land. Starting in the 1970’s, water licensees on Robbins Creek began complaining about a lack of water, improper diversions, and siltation problems. In about 2011, the Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”) discovered an unauthorized diversion built in the late 1960’s in the upper part of Robbins Creek, which was sending water to a diverted channel. The Ministry also discovered unauthorized diversions downstream along the diverted channel.

In June 2012, staff in the Ministry’s Thompson Okanagan Region applied for an approval to remediate the unauthorized diversions and direct the entire flow of Robbins Creek back to its original channel. The proposed remedial work would primarily occur on Crown land at the upper diversion. Mr. Lindelauf provided a written objection to the Ministry.

In January 2013, the Regional Manager issued the approval.

Mr. Lindelauf and two other land owners filed appeals with the Board against the approval. They submitted that the unauthorized diversions had existed for a long time, and the approval would direct water away from the diverted channel and its historic path. They submitted that the approval would harm their property, their interests, and aquatic habitat. They also argued that the approval breached the principles of natural justice and violated the Charter of Rights and Freedoms due to bias in the Regional Manager’s decision-making process. Further, they asserted that the Water Act and the approval were unconstitutional. They requested that the approval be reversed.

The Board decided to confirm the approval, and dismiss the appeals. The Board found that it would be absurd if an approval could not be issued to restore flow in a stream that had been unlawfully diverted. In addition, the Board found that the Water Act has no time limitations regarding approvals, and the Ministry provided a reasonable explanation as to why the investigation took time. The Board also found that the alleged negative effects of the approval were speculative. The Appellants used other water sources on their properties, including springs and/or groundwater wells, and it was unknown what, if any, negative impacts the approval would have on the Appellants’ use of water in the diverted channel.

Additionally, the Board rejected the Appellants’ claims that they had a common law right to use the diverted water flow, that Crown land grants issued in the 1920’s to the original owners of their property provided a right to use the water flowing on their land, and that the Province had no legislative authority over water rights. The Board found that the Crown grants provided no guarantee that the landowners would be able to use a specific amount of water from a particular water source. Moreover, given that the Crown grants were issued several decades before the diverted channel was built, the Crown grants could not have provided the landowners with a right to use water in the diverted channel. The Board also held that the courts had previously found that the common law rights historically enjoyed by riparian owners were abrogated by the Water Act and its statutory predecessors.

In addition, the Board rejected the Appellants’ allegations of bias. Although the approval was issued by a decision-maker employed in the same Ministry as the applicant for the approval, the Regional Manager was independent and objective in his decision-making process. The approval did not breach the Appellants’ rights under the Charter of Rights and Freedoms.

Mr. Lindelauf sought a judicial review of the Board’s decision. On review, the BC Supreme Court found that the Board had provided Mr. Lindelauf with a fair hearing. The Court held that the Board correctly concluded that the right to use water is lawfully vested in the Province, and that the Board correctly determined that there was no bias in the Regional Manager’s decision-making process. Even if there had been bias, it was corrected by the new hearing of the matter by the Board. Finally, the Court concluded that the Board’s decision was reasonable, transparent and intelligible. The Court confirmed the Board’s decision.

Mr. Lindelauf appealed to the BC Court of Appeal. The Court of Appeal confirmed that water rights are not a public right in BC. The Water Act was created within the legislative competence of the Province to modify, alter or abolish common law property rights, and it abrogated common law riparian rights. The Court also held that the Crown land grant did not guarantee that the landowner would be able to use a specific amount of water from a particular water source on the property. In addition, the Crown grant could not prevent the Province from rectifying an unauthorized diversion of water onto a property toward which the water did not lawfully flow. Further, there was no merit to Mr. Lindelauf’s assertion that the Board was biased. The Court also found that the Board reasonably concluded that, in deciding the appeal of the approval, it had no jurisdiction to assess whether other water licences should have been cancelled in the past.

Accordingly, the Court of Appeal dismissed Mr. Lindelauf’s appeal.