Decision Date: October 24, 2017

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 39; approval; water diversion; mining; preliminary decision; application to postpone hearing

On December 19, 2016, the Assistant Water Manager (the “Manager”), Thompson Rivers Natural Resource District (the “District”), Ministry of Forests, Lands, Natural Resources and Rural Development, issued a short-term water use approval (the “Approval”) to New Gold Inc. (“New Gold”). The Approval authorized New Gold to divert and use a maximum of 1,680 cubic metres per day of water from Kamloops Lake for the purpose of “Mining: Processing Ore”. The water was to be used for the New Afton Mine located west of Kamloops, BC. The Approval was effective for two years, until December 18, 2018.

In February 2017, the Stk’emlúpsemc te Secwepemc Nation (“SSN”) appealed the Approval on a number of grounds, including that the Manager failed to adequately consult and accommodate SSN before issuing the Approval. The SSN also raised concerns about the environmental impacts of the Approval.

In May 2017, after consultation with the parties, the Board scheduled a two-week hearing of the appeal, commencing on November 27, 2017.

During the spring and summer of 2017, the District suffered from floods followed by wildfires and drought conditions.

In September 2017, the Manager asked the other parties for their consent to postpone the appeal hearing until March or April 2018, due to the impact of weather and fires on the District’s resources. The SSN opposed the request. New Gold did not oppose the request.

In October 2017, the Manager applied to the Board for a three to four month postponement of the appeal hearing.

In determining whether to grant the Manager’s application, the Board considered several factors. The Board noted that the application arose because of unexpected events that were beyond the control of the Manager or District staff. However, the Board also noted that all parties had filed their notices of expert witnesses, and the Manager’s experts were apparently ready to give evidence at the hearing as scheduled. The Board found that if the hearing was postponed and the appeal was successful, the success would be short-lived as the Approval would expire in December 2018. Further, although unproven, SSN expressed serious concerns about the environmental impacts of the Approval.

The Board concluded that the postponement should be denied, because it would result in an unreasonable delay due to the short-term nature of the Approval, and the prejudice to SSN from granting the postponement outweighed the prejudice to the Manager from proceeding with the hearing as scheduled.

Accordingly, the application for a postponement was denied.