Decision Date: February 16, 2022

Panel: Darrell Le Houillier

Keywords: Water Sustainability Act – s. 92(2); Administrative Tribunals Act – s. 47(1)(a); order; dam; application for costs

Several hereditary chiefs from the Gitxsan Nation, and the Gitxsan Nation Crisis Management Team (collectively, the “Appellants”), appealed an order issued by the Water Manager in July 2021. The order related to an unlicensed earthen dam operated by BC Parks. In November 2020, there was an uncontrolled breach of the dam, releasing water onto Crown land. The order required BC Parks to retain qualified professionals to plan and facilitate work to monitor and maintain a safe water level in the lake behind the dam, and either decommission the dam or apply for a water licence and bring the dam into compliance with the Dam Safety Regulation.

In October 2021, during the preliminary stages of the appeal process, the Water Manager revoked the order.

The Appellants then asked the Board to order the Water Manager to pay the Appellants’ costs associated with the appeals. The Appellants submitted that the Water Manager revoked the order after undue delay, which caused the Appellants to incur unnecessary legal costs.

The Board found that the Water Manager had revoked the order because BC Parks was taking steps to resolve the concerns about the dam. The Water Manager had acted within his authority under section 92(2) of the Water Sustainability Act, which states that a water manager may “at any time” amend or revoke an order. The Appellants failed to show that the order was revoked due to a flaw in it, or that there was any delay by the Water Manager in revoking the order.

In addition, the Board found that the Water Manager’s decision to revoke the order gave the Appellants what they sought in the appeals: the order was no longer valid. Before the order was revoked, the Board was in the process of seeking clarification from the Appellants regarding who was an Appellant and what was being appealed. The appeals concluded before the parties were defined or the disclosure of information was complete. The Water Manager’s revocation of the order saved the expense associated with an appeal hearing. The Board encourages the early resolution of appeals, even if an appeal is resolved by revoking the decision under appeal. Ordering costs in this case would produce a “chilling” effect on conduct that the Board encourages.

The Board concluded that there were no special circumstances in this case that warranted an order of costs. The application for costs was denied.