Decision Date: October 1, 2002

Panel: Alan Andison

Keywords: Water Act – ss. 5, 10, 11, 12, 15; water supply analysis; point of diversion; Engineer’s report; duty to consult First Nations; fish habitat

The Appellants appealed the Assistant Regional Water Manager’s refusal of their application for a licence to divert water from Guichon Creek.

The Appellants argued that the Assistant Manager erred in his assessment of the creek’s water supply. Specifically, the Appellants argued that the Assistant Manager incorrectly considered a 1 in 5-year drought analysis and a Federal fisheries requirement in calculating the water supply. The Appellants argued that the Assistant Manager failed to consider ground water and other creek contributions, actual use of current licences on the creek, the fact that storage would be during freshet, and carry over storage from previous years. According to the Appellants, if the Assistant Manager had considered these factors then he would have calculated a greater amount of available water.

The Assistant Manager maintained that his decision about the available water supply was based on reliable analyses and took into account the appropriate considerations. He gave evidence of two different analyses that showed a deficit in water supply: one was a point of diversion gauge analysis, and the other was an Engineer’s report.

The Board concluded that there is insufficient water in the creek to grant the Appellant’s application. In reaching that conclusion, the Board relied on the Engineer’s report because the Board found it to be the most comprehensive analysis, and it was prepared by a professional engineer.

The Appellants further argued that the Water Management Branch treated their application inconsistently and unfairly. In particular, they argued that their application was first submitted and 1987 and was not adjudicated until 1998. They argued that this delay prejudiced their interests.

The Assistant Manager submitted that the issue in this appeal was not how the application was handled but whether it should have been refused.

The Board found that although the Appellants’ application was treated with undue delay, the application was properly refused.

The Lower Nicola Indian Band submitted that it had not been consulted about this licence application and, therefore, the Board could not allow the appeal and grant the licence.

The Board found that the Assistant Manager has a duty to consult with First Nations about applications that may infringe aboriginal rights to access and use of water. The Board found that the Lower Nicola Indian Band had been consulted in accordance with the Water Act in this case, and noted that the water licence had been refused. The Board found that no further consultation with the Band is required unless the application is reconsidered.

The appeal was dismissed.