Decision Date: October 27, 2011

Panel: Alan Andison

Keywords: Environmental Management Act – s. 94(1)(a); preliminary decision; application for participant status

The Environmental Law Centre (the “Applicant”) applied for participant status in two appeals.  Specifically, it requested an opportunity to make opening and closing statements and to cross-examine two witnesses, in the oral hearing of the appeals.  The Applicant described itself as a non-profit society and public interest environmental law clinical program operated in partnership with the University of Victoria’s Faculty of Law.  The Applicant submitted that the appeals raise issues of water law and policy that relate directly to its public interest-related mission.

The appeals were filed by Chief Richard Harry, in his own right and on behalf of the Xwémalhkwu First Nation (the “Appellant”), against the decisions of the Assistant Regional Water Manager, Ministry of Environment, to issue two conditional water licences.  The licences authorize Bear River Contracting Ltd. (the “Licence Holder”) to divert, use and store water from the Bear River, and construct certain works on the Licence Holder’s property for the purposes of fire protection, industrial (residential lawn watering), industrial (bottling sales), and industrial (enterprise).

The Bear River flows into Bear Bay, which is part of Bute Inlet on the mainland coast of British Columbia.  The Bear River flows through the Licence Holder’s land, and then through the First Nation’s Indian Reservation No. 8 located at the mouth of the Bear River.  The First Nation is involved in 4th stage treaty negotiations, and the Bear Bay area is within their claimed traditional territory.

The Applicant submitted that it had a valid interest in the issues raised by the appeals, its interests and perspective are different from those of any party in the appeals, and its participation would assist the Board and would not cause duplication or undue delay in the proceedings.

The Regional Manager and the Licence Holder objected to the application.

The Board found that the Applicant had a valid interest in participating in the appeals.  Specifically, the Board held that the Applicant’s interests were aligned with those of the Appellant, but its perspective is different from that of the Appellant or any other party, given its mission and history of providing research and advocacy on water law issues.  In addition, the Board found that the Applicant’s expertise would enable it to make a well-informed contribution.  However, the Board found that allowing the Applicant to participate may add complexity to the proceedings, and would add to the cost and length of the hearing.  To some degree, it would also result in duplication of the Appellant’s case, especially if both the Applicant and Appellant were permitted to cross-examine Ministry witnesses.  Based on those considerations, the Board decided to allow the Applicant to make a brief opening and closing submission, but not to allow the Applicant to cross-examine witnesses.

Accordingly, the application for participant status was granted, on a limited basis.