Decision Date: November 17, 2016

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 39; preliminary decision; adjournment; postponement; conditional water licence; dam

The West Moberly First Nations and the Prophet River First Nation (the “Applicants”) requested that the Board postpone the hearing of three appeals. The appeals were filed by the Applicants and Clara London, against two conditional water licences that were issued as part of the Site “C” Clean Energy Project (the “Project”). The water licences were issued in February 2016 by the Deputy Comptroller of Water Rights (the “Deputy Comptroller”), Ministry of Forests, Lands and Natural Resource Operations, to the BC Hydro and Power Authority (“BC Hydro”). One water licence authorized BC Hydro to divert and use water from the Peace River for power purposes, and the other licence authorized BC Hydro to store water in a reservoir created by a dam.

Before the water licences were issued, the Project was subject to environmental assessment processes, which resulted in provincial and federal approvals in October 2014. The provincial and federal environmental assessment approvals were subject to judicial reviews before the courts, which were unsuccessful at the first levels of court but were under appeal to the BC Court of Appeal and the Federal Court of Appeal. Meanwhile, construction of the Project started in July 2015, and is scheduled to be completed in 2024. Flooding of the reservoir is scheduled for 2023 at the earliest.

During a pre-hearing teleconference in August 2016, the parties agreed that the appeal hearing would be scheduled to commence on April 3, 2017, and the parties would begin exchanging pre-hearing written submissions on September 30, 2016. However, in early October 2016, the Applicants requested that the appeal hearing be postponed until sometime after July 3, 2017, pending the appellate court decisions on the environmental assessments. The Applicants submitted that the court decisions could render the appeals moot.

The Deputy Comptroller and BC Hydro opposed the application.

In determining whether the application for a postponement ought to be granted, the Board considered several factors. The Board found that the court decisions could render the appeals moot, but this factor alone was not determinative of whether the postponement should be granted. The Board also found that the request for a postponement was due, in part, to the Applicants’ delay in raising the issue of mootness. The Applicants knew about the appellate court litigation before the pre-hearing teleconference in August 2016, but they still agreed to the hearing dates before the Board. The Applicants did not request the postponement until after the deadline to submit their initial pre-hearing submissions had passed.

The Board also found that the Applicants’ expected release dates for the appellate court decisions were speculative, and in any event, those court decisions could be appealed to the Supreme Court of Canada. In these circumstances, the Board found that the estimate time needed for a postponement was uncertain. Although a postponement would create some delay and uncertainty for BC Hydro, BC Hydro was proceeding with construction of the Project, as no stays or injunctions were in place. There was no evidence that a postponement would have any environmental impacts. Finally, the Board noted that there is a public interest in the timely resolution of appeals, but there is also a public interest in avoiding unnecessary costs associated with appeals.

After weighing all of the relevant factors, the Board concluded that there was unsufficient basis to proceed with the appeal hearing given that it may ultimately be unnecessary to decide the appeals, depending on the outcome of the court decisions. The Board found that the appeal hearing ought to be postponed at least until after the appellate courts issue their decisions on the environmental assessment litigation.

Accordingly, the Board granted the application for a postponement of the hearing.