Decision Date: June 16, 2014

Panel: Alan Andison

Keywords: Water Act – ss. 9, 92, 22.01; application to strike portions of Notice of Appeal; applicable test; jurisdiction; approval; change in and about a stream; statutory declaration

Two applications were filed with the Board seeking to strike certain orders and paragraphs from Ms. Fitzpatrick’s Amended Notice of Appeal (the “Amended Appeal”). The applications were filed by the Respondent, the Assistant Regional Water Manager, and the Third Party, the Ministry of Forests, Lands and Natural Resource Operations (together, the “Applicants”).

Ms. Fitzpatrick’s appeal was against an Approval to make changes in and about a stream under section 9 of the Water Act. The Applicants argued that certain matters identified in the Amended Appeal were either irrelevant to her appeal and/or raised issues that were beyond the jurisdiction of the Board.

The Board adopted the following test from Ronald Witherspoon et al. v. Director (Cobble Hill Holdings Ltd., Third Party), (Decision Nos. 2013-EMA-017(a), 019(b), 020(a) and 021(a), February 5, 2014): whether, based on a generous reading, it is plain and obvious that the appeal, or ground of appeal, is beyond the statutory jurisdiction of the Board.

Based upon this test, the Board determined that some of the contested paragraphs in Ms. Fitzpatrick’s Amended Appeal concerned matters that were clearly beyond the jurisdiction of the Board on this appeal, and granted the application to strike those paragraphs. They include paragraphs concerning negligence on the part of the Minister for failing to obtain a statutory declaration of beneficial water use, the Ministry’s budget for the approved works, the Crown’s past decision not to prosecute for alleged unauthorized or illegal diversions of Robbins Creek, the resolution of a past dispute involving the Minister and the impacted properties, requests for documents, and compensation for damages or loss that had not yet occurred. The Board found that other paragraphs were not clearly beyond the jurisdiction of the Board, and denied the application to strike these paragraphs.

The Board also found that there was no requirement, or authority, for the Board to grant one of the remedies requested by Ms. Fitzpatrick. Specifically, her request for the Board to make a finding of fact that the Respondent should have cancelled certain water licences on the grounds of “non-use”. The Board found that the cancellation of a water licence for non-use involves a completely different inquiry under a completely different section of the Water Act.

The applications to strike paragraphs from Ms. Fitzpatrick’s Amended Appeal were granted, in part.