Decision Date: October 17, 2007

Panel: Alan Andison

Keywords: Costs application; special circumstances; frivolous or vexatious appeal

In April 2007, the Director, Environmental Management Act (the “Director”) issued a letter to Mr. Willis, acknowledging receipt of a completed registration form for discharge to surface water from a sewage treatment plant located near the Shuswap River, pursuant to the Municipal Sewage Regulation. In the letter, the Director also imposed a number of additional requirements regarding the discharge.

The Splatsin First Nation (the “Splatsin”) appealed the letter on the basis that the Province had breached its duty to consult with the Splatsin before authorizing the discharge. The Splatsin also appealed the additional requirements imposed in the letter.

The Board decided in August 2007 that it had jurisdiction to hear the appeal of the additional requirements, but that it had no jurisdiction over the appeal of the registration or the lack of consultation over the registration (see Decision No. 2007-EMA-004(a)). The Splatsin withdrew their appeal in September 2007.

Mr. Willis requested an order of costs against the Splatsin. He argued that the appeal was frivolous or vexatious.

The Board found the appeal neither frivolous, nor vexatious. The appeal raised serious questions, including the Province’s duty to consult and the adequacy of the requirements imposed on the registration. Moreover, the Splatsin had genuine concerns relating to human health, water quality, and the effects of sewage discharge on fish and fish habitat, which were expressed in relation to the Splatsin’s aboriginal rights and title. Those were substantive issues that were raised in good faith and had at least some basis in fact. Therefore, there were no special circumstances that merited an award of costs to Mr. Willis.

The application was denied.