Decision Date: July 5, 2006

Panel: Alan Andison

Keywords:  Water Act – s. 92(1); preliminary issue; standing

On behalf of the Shawnigan Lake Watershed Watch Association (the “SLWWA”), Ms. Desmond appealed a decision of the Regional Water Manger (the “Regional Manager”) to issue a conditional water licence to Teresa Elaine Erb for the purpose of building a water ski pond near Shawnigan Lake.  The Regional Manager challenged the standing of Ms. Desmond and the SLWWA to appeal this matter and applied to have the appeal dismissed.  The Regional Manger submitted that neither Ms. Desmond nor the SLWWA had standing to appeal under section 92(1) of the Water Act.

Ms. Desmond resides with her mother, Glen Ellen Bentley, on Shawnigan Lake.  Ms. Desmond and Ms. Bentley draw drinking water from the water purveying systems supplied by the lake water.  However, neither Ms. Desmond nor Ms. Bentley is a licenced water user.  Although Ms. Desmond’s Notice of Appeal indicated that she filed the appeal on behalf of the SLWWA, she stated in her submissions that she had acted as agent for Ms. Bentley in the past and, therefore, had standing to appeal the decision on behalf of the SLWWA. In the alternative, Ms. Desmond asked that her name be replaced by that of Jack Eaton, a lakefront homeowner and member of the SLWWA.

The Board found that neither Ms. Desmond nor the SLWWA had standing to appeal in their own right as they were not “an owner whose land is likely to be physically affected by the order” nor a “licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order” as prescribed by section 92(1) of the Water Act.  However, the Board found that, as a riparian owner, Ms. Bentley had standing to appeal and that Ms. Desmond may act as agent for Ms. Bentley in this matter.  The Board denied Ms. Desmond’s request to replace her name with that of Jack Eaton.  The Board found that Mr. Eaton did not file a Notice of Appeal within the time limit prescribed by the Water Act.

The application to dismiss the appeal on the grounds of lack of standing was denied.  However, the Board amended Ms. Desmond’s Notice of Appeal to indicate that she filed the appeal as an agent of Ms. Bentley.