Decision Date: August 19, 2004

Panel: Alan Andison

Keywords:  Water Act – ss. 27, 29, 32, 35, 39; access to land; engineer’s orders; water bailiff; expropriation

Thomas and Carolyn Baird (the “Appellants”) appealed the decision of the Assistant Regional Water Manager, Land and Water British Columbia Inc. (the “Regional Manager”) reappointing a water bailiff.  The Appellants asked the Environmental Appeal Board (the “Board”) to rescind the re-appointment until the Third Parties, who are licensees on the same water system as the Appellants, secure easements across the Appellants’ properties.  The Appellants also opposed the terms of the re-appointment order in that it contains no current engineer’s directions to the bailiff and does not contain a defined term of appointment.

The Board found that the Third Parties’ failure to obtain easements over the Appellants’ lands or commence expropriation proceedings under the Water Act were entirely separate issues from that of the re-appointment of the water bailiff and were outside the Board’s jurisdiction in this appeal.  In addition, the Board also found that the Third Parties’ failure to expropriate does not prevent reappointment of a water bailiff.  The Board found that the re-appointment was reasonable and that the person re-appointed was a reasonable choice in the circumstances.  The Board further found that the 2002 engineer’s directions to the water bailiff had not expired and that new directions are not required as part of the re-appointment unless the engineer believes that circumstances require their revision.  The Board further found that, based on the performance of the particular water bailiff during the previous defined two-year appointment, there is no longer any need to place a time limit on the water bailiff’s appointment.

The Board dismissed the appeal.