Decision Date: April 7, 2020

Court: B.C.S.C., Justice J.A. Power

Citation: 2020 BCSC 545

The Assistant Water Manager (the “Water Manager”) sought a judicial review of a decision issued in 2018 by the Environmental Appeal Board. The Board’s decision involved an appeal by Linda and Jackie Chisholm.

The Chisholms own a ranch. Four water licences are attached to their property. The Conditional Water Licence C68000 (the “Licence”) was issued in 1988, but the water rights associated with the Licence were originally issued in 1904 through a water grant. The Licence authorized the use of water for irrigation purposes, and stated that the water source was “Cameron Creek, with a re-diversion of water from Thos Creek”. Attached to the Licence was a map indicating a point of diversion (“POD”) on “Cameron Creek” and a point of re-diversion on Thos Creek.

The Appellants applied for an amendment to the Licence to correct alleged errors. The Appellants maintained that historical mapping errors and renaming of streams led to their water rights on Cameron Creek being usurped. They alleged that the Licence did not reflect the correct location of their POD, as authorized by the 1904 water grant. The Appellants also requested an amendment to authorize works that had historically been used for irrigation on their property.

The Water Manager denied the Appellants’ application to amend the Licence.  He concluded that there was no error to correct, because the re-naming and re-mapping of water sources and PODs occurred in conjunction with water licence amendments in 1988, and the water source locations were confirmed in an appeal to the Comptroller of Water Rights in 1993. In addition, he found that the historical POD was now on a different water source, Heldon Brook, and amending a licence to a different source is not permitted under section 26(1) of the Water Sustainability Act.

The Appellants appealed the Water Manager’s decision.

The Board found that the Water Manager had the authority under section 26 of the Water Sustainability Act to grant the requests in the Chisholms’ amendment application. The Board found that their requests were reasonable and ought to be granted. The Board returned the matter to the Water Manager with directions.

The Water Manager filed a petition with the BC Supreme Court requesting a judicial review of the Board’s decision. The Water Manager argued that the Board erred in two ways. First, the Board misapprehended the evidence regarding the historical evolution of the relevant water licences and associated watershed, and this led to an unreasonable interpretation of the Water Manager’s authority under section 26 of the Water Sustainability Act. Second, the Water Manager argued that, in ordering him to amend the licence, the Board was statutorily required to consider environmental flow needs, and the failure to do so rendered the Board’s decision unreasonable.

The Court found that the “reasonableness” standard of review applied when reviewing the Board’s decision. Regarding the Water Manager’s first argument, the Court found that the Board did not misapprehend the evidence. The Board clearly understood and addressed the evidence, the parties’ positions, and the issues before it. The Board’s decision was well reasoned, comprehensive, and reasonable in both outcome and process. Regarding the Water Manager’s second argument, the Court found that the Board’s interpretation of section 26 of the Water Sustainability Act was reasonable and did not rest on a misapprehension of the evidence. The Board was not required to consider environmental flow needs, as granting the amendment application would merely fix an error on the maps; it would not change the point of diversion, increase the rate of diversion, or change the timing of water use.

The Court concluded that the Board’s decision was reasonable. The Water Manager’s petition was dismissed.