Decision Date: September 17, 2007

Panel: Alan Andison

Keywords: Environmental Management Act – s. 93(11); preliminary application; order to produce documents; summons

In 2005, the Regional Water Manager, Land and Water B.C. Inc. (now the Ministry of Environment), granted a conditional water licence (the “Licence”) to Christopher and Birgit Chart (the “Charts”).  The Licence permitted the diversion and use of water from McFayden Creek in the Nelson Water District for residential power purposes, and included a number of conditions. Barry and Marily Burgoon and Helen Elzinga (the “Applicants”) appealed the issuance of the Licence on the grounds that it posed a risk to the homes, properties, water and lives of the residents downslope of McFayden Creek. The Charts appealed the Regional Water Manager’s decision to refuse their application for a water licence for consumptive uses, as well as some of the conditions attached to the Licence.

In 2007, before the hearing of the appeals commenced, the Applicants asked the Board to order that a number of documents be provided by the Regional Water Manager and the Charts, and that the Regional Water Manager be compelled to attend the hearing.

The Board found that documents pertaining to communications between the Charts and their expert witness (including draft expert reports) leading up to the tendering of an expert report were relevant to the witness’ credibility if they addressed any re-drafting of the report. The Board also found that all documents pertaining to the financial terms of the relationship between the Charts and their consultant were relevant to the credibility of statements the consultant made to the Regional Water Manager prior to the Licence being issued. Therefore, the Board granted the application with respect to those documents, but refused to make an order for the production of documents that did not yet exist.

Regarding the documents requested from the Regional Water Manager, the Board determined that the Applicants’ request was overly broad and that the Ministry of Environment had already made reasonable attempts to accommodate the request. Therefore, this aspect of the application was denied.

Finally, the Board did not make an order compelling the Regional Water Manager to testify at the hearing regarding his decision-making process, as the Applicants had not indicated whether they had asked the Regional Water Manager to appear voluntarily. Moreover, the Board determined that any errors in the Regional Manager’s decision-making process would be corrected by the new hearing before the Board.

Accordingly, the applications were granted, in part.