Decision Date: May 16, 2005

Panel: Alan Andison

Keywords: Water Act – ss. 5, 6, 20, 23; apportionment; cancellation of a water licence; procedural fairness; reasonable apprehension of bias; beneficial use of water

David Hindson appealed an order of the Assistant Regional Water Manager (the “Assistant Manager”), to issue a conditional water licence (the “New Licence”) assigning the water rights under two former conditional water licences in their entirety to Priscilla Hindson.  He argued the Assistant Manager erred in issuing the New Licence in substitution for the former water licences, erred in relying on section 20 of the Water Act (the “Act“) to make the decision to issue the New Licence, and erred in failing to follow the Water Program Policy and Procedure Manual (the “Policy Manual”).  Mr. Hindson also argued that the Assistant Manager acted in a biased manner and breached the rules of procedural fairness for failing to consider his written objection to the application for the New Licence.

Mr. Hindson asked the Board to reverse the order and reinstate the former water licences.  In the alternative, he asked the Board to send the matter back to the Assistant Manager with the direction that the application be decided pursuant to section 23 of the Act if there is to be a cancellation made, or in the alternative, pursuant to section 20, with further study and investigation, if the existing rights are to be apportioned between the owners of the appurtenant land.  Mr. Hindson also made an application for costs.

The Board found that the decision to apportion all of the water rights under the former water licences to Priscilla Hindson, and to issue the New Licence to her, was fair and reasonable in all of the circumstances.  The Board affirmed the Order as issued.

Specifically, the Board concluded that section 23 of the Act did not apply.  In the circumstances, the Board found that the Assistant Manager properly accepted and considered the application under section 20 of the Act as an apportionment of the water rights between the two property owners.

The Board also found that there was insufficient evidence to support Mr. Hindson’s assertion that the Assistant Manager failed to consider Mr. Hindson’s objection or take into account all of the relevant evidence before issuing the order.  The Board held that the opportunity to make written submission met the requirements of both the Policy Manual and of procedural fairness.  The Board further found that there was insufficient evidence to establish any reasonable apprehension of bias.

The Board found that there is no allowance or provision in the Act for intended or proposed beneficial use, and the Policy Manual suggests that current beneficial use is to be considered in apportionment, rather than future intention.

Accordingly, the appeal was dismissed.

The application for costs was denied.