Decision Date: February 29, 2008

Panel: Lynne Huestis

Keywords: application for recusal; bias

In 2005, the Regional Water Manager 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 Marilyn 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 filed two appeals: one against the Regional Water Manager’s decision to refuse their application for a water licence for domestic consumptive uses, and another against some of the conditions attached to the Licence.

Before the hearing of the appeals commenced, the Applicants added a new ground for appeal. They claimed that the Regional Water Manager had failed to consult with the Sinixt First Nation prior to issuing the Licence, and that Ms. Burgoon should be granted standing to represent the interests of the Sinixt Nation. The issue of Ms. Burgoon’s standing to make submissions regarding aboriginal interests was dealt with on the first day of the hearing. In an oral ruling, the Panel found that Ms. Burgoon did not have standing to make arguments regarding the Regional Water Manager’s duty to consult with the Sinixt Nation. The Applicants had failed to demonstrate that she met the requirement for standing to make those submissions, either in her personal capacity or on the basis of public interest standing. The hearing proceeded in relation to the other grounds of appeal, but was not concluded, and was therefore adjourned until it was scheduled to reconvene.

After the hearing adjourned, but before it reconvened, the Applicants made a written application to the Board seeking that the Panel Chair recuse herself on the ground of bias. The Panel Chair was employed as legal counsel to the Federal Treaty Negotiation Office (the “FTNO”). The Applicants submitted that the FTNO had, in court proceedings, taken the position that the Sinixt Nation no longer existed as an aboriginal entity to which obligations were owed. Therefore, the Applicants argued that the Panel Chair could not be said to be neutral and impartial with respect to the issue of consultation with the Sinixt Nation.

The issue considered by the Board was whether either an actual bias or a reasonable apprehension of bias had been established on the evidence. The Board found that there was no objective evidence to support of finding of actual bias. In its preliminary ruling at the oral hearing, the Panel only addressed the issue of the Applicants’ standing in terms of their ability to represent aboriginal interests. Issues respecting the existence of the Sinixt Nation and the legal merit of any assertions of aboriginal rights and title were not considered. Further, the Board did not comment on any obligations that the Regional Water Manager may have owed to the Sinixt Nation. Therefore, the Board found that the Panel Chair had not predetermined the narrow legal question of standing that was before the Panel.

Regarding the allegation of a reasonable apprehension of bias, the Board determined that a reasonable, informed person looking at all the facts would conclude that there was no real likelihood that the Panel Chair would favour one party over the other in deciding the issue that was before the Panel. Her employment circumstances were irrelevant to the question of the Applicants’ standing to represent aboriginal interests in the proceedings. Furthermore, given that the Panel’s ruling was limited to the question of standing, the Board found that the Applicants’ allegations were purely speculative.

Accordingly, the application for recusal was denied.