Decision Date: April 18, 2017

Court: B.C.S.C., Justice Donegan

Citation: 2017 BCSC 626

Michael Lindelauf sought a judicial review by the BC Supreme Court of a decision issued in 2015 by the Environmental Appeal Board (the “Board”) regarding an approval issued by the Assistant Regional Water Manager (the “Regional Manager”), Kamloops/Headwaters Forest District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The approval was issued to staff in the Ministry’s Thompson Okanagan Region, and authorized certain changes in and about Robbins Creek, located near Kamloops, BC. These changes were intended to remedy historic unauthorized diversions of Robbins Creek, and direct water back to the Creek’s original channel. Mr. Lindelauf owns land that borders the diverted channel of Robbins Creek. When he purchased the land, the diverted channel was flowing through it. However, he never obtained a water licence on Robbins Creek.

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, after receiving more complaints, the Ministry began an investigation which resulted in the discovery of an unauthorized diversion built in the late 1960’s in the headwaters of Robbins Creek (the upper diversion), which was sending water to a diverted channel. The Ministry also discovered unauthorized diversions downstream along the diverted channel (the lower diversions).

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. The Ministry held a public meeting about its proposal, and sent its application for the approval to interested parties for comment. Mr. Lindelauf provided a written objection to the Ministry.

In January 2013, the Regional Manager issued the approval under the Water Act.

Mr. Lindelauf and two other land owners who would be affected by the changes to Robbins Creek appealed the approval. In general, they submitted that the unauthorized diversions had existed for a long time, and the approval would direct water in the diverted channel away from its historic path. They submitted that their property, their interests, and aquatic habitat would be harmed by the approval. They also argued that the approval breached the principles of natural justice and violated the Charter of Rights and Freedoms because there was a reasonable apprehension of bias, and actual bias, in the decision-making process. Further, they asserted that the Water Act and the approval were unconstitutional. They requested that the approval be reversed.

Following a lengthy hearing, the Board confirmed the approval. In reaching that decision, the Board made numerous findings. The Board found that the approval was not issued for an improper purpose, and it would be absurd if an approval could not be issued to restore the flow in a stream that had been unlawfully diverted. In addition, the Board rejected the Appellants’ submission that they had suffered prejudice due to unreasonable delays in the Ministry’s investigation, and that the passage of time prevented the Ministry from applying for an approval. 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. In addition, the Appellants failed to establish that they were prejudiced by any delay.

The Appellants also argued that they would be negatively affected by the approval, and the Ministry should have considered alternatives. However, the Board found that the alleged negative effects were speculative, and the Ministry had carefully considered the options and their impacts before selecting a course of action. There was no evidence that the approval posed a danger to life, property or the environment. There was also no evidence that the Appellants would have no access to water if the approval was implemented. The evidence established that the Appellants used other water sources on their properties, including natural springs and/or groundwater wells. Furthermore, none of the Appellants established how much surface water they needed for domestic purposes. Therefore, 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’ claim 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 has no legislative authority over water rights in BC. 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 any right to use water in the diverted channel. The Board also held that the courts have previously held that the common law rights that were historically enjoyed by riparian owners were abrogated by the Water Act and its statutory predecessors.

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

Accordingly, the Board dismissed the appeals.

Mr. Lindelauf filed a petition seeking a judicial review of the Board’s decision. Before the Court heard the merits of the petition, the Regional Manager, supported by the Board, applied to the Court to strike certain portions of the petition, pursuant to the Court’s Rules. The Regional Manager and the Board acknowledged that Mr. Lindelauf had a right to request a judicial review of the Board’s decision, but they argued that various orders sought in the petition were vague, not proper subjects in a judicial review, or had no prospect of success.

The Court held that a claim will only be struck if it is plain and obvious, assuming that the facts pleaded are true, that the pleading discloses no reasonable cause of action. If a cause of action requires clarification by an amendment, the court should give the petitioner the opportunity to make such an amendment.

Before applying that test, the Court noted that the Board is a specialized tribunal, and the Court’s role in a judicial review is a supervisory one. Where the challenge is to substantive issues, the court must apply a standard of review. A “reasonableness” standard of review applies presumptively where a tribunal has interpreted or applied its own statute or statutes closely connected to its function, with which it has particular familiarity. If the standard of review is reasonableness, the court must give deference to the tribunal. A deferential approach means that a court is not to re-evaluate or re-weigh evidence, interfere with the tribunal’s evidentiary and fact finding functions, or otherwise substitute its decision for that of the tribunal.

Applying those principles, the Court decided to strike several portions of Mr. Lindelauf’s petition because they were vague, confusing, not the proper subject of a judicial review, or had no reasonable prospect of success. However, the Court granted Mr. Lindelauf leave to amend his petition and set out legal arguments to support his claim that the Board’s decision should be set aside. The Court ordered that each party would bear their own costs of the application.