Decision Date: August 17, 2015

Panel: Gabriella Lang, Blair Lockhart

Keywords: Water Act – s. 1 – definitions of “stream”, ss. 2, 9, 21; Constitutional Question Act; Water Regulation – s. 38(2); approval; unauthorized diversion; riparian owner; procedural fairness; bias; provincial jurisdiction; Crown grant of land

Michael and Joaney Lindelauf, Jill Fitzpatrick, and William Switzer filed separate appeals against an approval issued by the Assistant Regional Water Manager (the “Regional Manager”), Kamloops/Headwaters Forest District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The approval was issued to staff in the Ministry’s Thompson Okanagan Region, and authorized certain changes in and about Robbins Creek, near Kamloops, BC. These changes were intended to remedy unauthorized diversions of Robbins Creek, and direct water back to the Creek’s original channel.

In the 1970’s, water licensees on Robbins Creek began complaining about a lack of water, improper diversions, and siltation problems. In about 2011, after receiving more complaints, the Ministry began an investigation. The Ministry undertook field work and a review of maps, aerial photographs, and historical records. The investigation resulted in the discovery of an unauthorized diversion built in the late 1960’s in the headwaters of Robbins Creek (the upper diversion), which was sending water to a diverted channel. The Ministry also discovered unauthorized diversions downstream, along the diverted channel (the lower diversions).

In June 2012, staff in the Ministry’s Thompson Okanagan Region applied for an approval to remediate the unauthorized diversions and direct the entire flow of Robbins Creek back to its original channel. The proposed remedial work would primarily occur on Crown land at the upper diversion. The application was sent to interested parties for comment. The Ministry also held a public meeting about its investigation and proposal. In response, Mr. and Mrs. Lindelauf and Ms. Fitzpatrick provided written objections to the Ministry.

In December 2012, staff in the Ministry’s Thompson Okanagan Region completed a report that investigated the risks and benefits associated with three options: the original proposal to conduct restoration at the site of the upper diversion; an alternative involving restoration at the two lower diversions; and, a third option of leaving the unauthorized diversions in place. The report recommended that Robbins Creek be restored to its original channel at the site of the upper diversion. The report was provided to the Regional Manager for consideration in deciding whether to grant the approval.

In January 2013, the Regional Manager issued the approval under section 9 of the Water Act.

Mr. and Mrs. Lindelauf, Ms. Fitzpatrick, and Mr. Switzer appealed the approval. The Appellants own land that borders the diverted channel and/or the original channel of Robbins Creek, and they consider themselves to be riparian owners. When they purchased their land, the diverted channel was flowing through it. However, none of the Appellants obtained water licences on Robbins Creek.

The Appellants appealed on numerous grounds. In general, they submitted that the unauthorized diversions had existed for a long time, and the works allowed under the approval would direct water in the diverted channel away from its historic path. They submitted that their property, their interests, and aquatic habitat would be harmed by the approval. They also argued that the the approval breached the principles of natural justice and violated the Charter of Rights and Freedoms because there was a reasonable apprehension of bias, and actual bias, in the decision-making process. Further, they asserted that the Water Act and the approval were unconstitutional. They requested that the approval be reversed.

After the approval was appealed, the Ministry consented to a voluntary stay of the approval, pending the Board’s decision on the appeals.

The appeals were heard by way of an oral hearing that took over two weeks. After considering all of the evidence and submissions, the Board confirmed the approval. In reaching that decision, the Board made numerous findings.

The Board rejected the Appellants’ argument that the approval was issued for an improper purpose, which was to benefit licensees on the original channel of Robbins Creek. The Board found that section 9 of the Water Act does not restrict the purposes for which an approval may be issued, and it would be absurd if an approval could not be issued to restore the flow in a stream that had been unlawfully diverted.

The Board also rejected the Appellants’ submission that unreasonable delays in the Ministry’s investigation had prejudiced the Appellants, and that the passage of time prevented the Ministry from applying for an approval. The Board found that the Water Act has no time limitations regarding applying for, or issuing, approvals, and the Ministry provided a reasonable explanation as to why the investigations took time. In addition, the Appellants failed to establish that they were prejudiced by what they considered to be the Ministry’s delay.

The Appellants also argued that they would be negatively affected by the approval, and the Ministry should have considered alternatives. However, the Board found that the alleged negative effects were speculative, and the Ministry had carefully considered the options and their impacts before selecting a course of action. There was no evidence that the works authorized by the approval posed a danger to life, property or the environment contrary to section 38(2) of the Water Regulation. Even if the approval caused damage to the Appellants’ property, they could seek compensation from the approval holder under section 21 of the Water Act. There was also no evidence that the Appellants would have no access to water if the approval was implemented. The evidence established that the Appellants can, and do, use other water sources on their properties, including natural springs and/or groundwater wells. Furthermore, none of the Appellants established with evidence, or even stated, how much surface water they need for domestic purposes. Therefore, it was unknown what, if any, negative impacts the approval would have on the Appellants’ use of water in the diverted channel.

Additionally, the Appellants submitted that they had a common law right to use the diverted water flow, and that the Crown land grants issued in the 1920’s to the original owners of their property provided a right to use the water flowing on their land. They also argued that the ability to govern water rights in BC was not within the legislative powers of the Province. The Board rejected those arguments. The Board found that the Crown grants provided no guarantee that the landowners would be able to use a specific amount of water from a particular water source. Moreover, given that the Crown grants were issued several decades before the diverted channel was built, the Crown grants could not have provided the landowners with a right to use water in the diverted channel. The Board also held that the courts have previously held that the common law rights that were historically enjoyed by riparian owners were abrogated by the Water Act and its statutory predecessors.

In addition, the Board rejected the Appellants’ allegations of institutional bias, and a reasonable apprehension of bias. Although the approval was issued by a decision-maker employed by the same Ministry as the applicant for the approval, the Board held that it was not necessarily problematic to have such functions performed by different divisions within the Ministry. In this case, the Regional Manager remained independent and objective in his decision-making process. The approval did not breach the Appellants’ rights under the Charter of Rights and Freedoms.

Accordingly, the appeals were dismissed.