Decision Date: August 22, 2017

Court: B.C.S.C., Justice Dley

Citation: 2017 BCSC 1479

Michael Lindelauf sought a judicial review by the BC Supreme Court of a decision issued by the Environmental Appeal Board (the “Board”) regarding an approval issued under the Water Act by the Assistant Regional Water Manager (the “Regional Manager”), Kamloops/Headwaters Forest District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The approval was issued to staff in the Ministry’s Thompson Okanagan Region, and authorized certain changes in and about Robbins Creek, located near Kamloops, BC. The changes were intended to remedy historic unauthorized diversions of Robbins Creek, and direct water back to the Creek’s original channel. Mr. Lindelauf owns land that the diverted channel of Robbins Creek flows through. However, he never obtained a water licence on Robbins Creek.

Starting in the 1970’s, water licensees on Robbins Creek began complaining about a lack of water, improper diversions, and siltation problems. In about 2011, after receiving more complaints, the Ministry began an investigation and discovered an unauthorized diversion built in the late 1960’s in the headwaters of Robbins Creek (the upper diversion), which was sending water to a diverted channel. The Ministry also discovered unauthorized diversions downstream along the diverted channel (the lower diversions).

In June 2012, staff in the Ministry’s Thompson Okanagan Region applied for an approval to remediate the unauthorized diversions and direct the entire flow of Robbins Creek back to its original channel. The proposed remedial work would primarily occur on Crown land at the upper diversion. The Ministry held a public meeting about the proposal, and offered interested parties an opportunity to comment on the proposal. Mr. Lindelauf provided a written objection to the Ministry.

In January 2013, the Regional Manager issued the approval.

Mr. Lindelauf and two other land owners appealed the approval. In general, they submitted that the unauthorized diversions had existed for a long time, and the approval would direct water in the diverted channel away from its historic path. They submitted that their property, their interests, and aquatic habitat would be harmed by the approval. They also argued that the approval breached the principles of natural justice and violated the Charter of Rights and Freedoms because there was bias in the Regional Manager’s decision-making process. Further, they asserted that the Water Act and the approval were unconstitutional. They requested that the approval be reversed.

Following a lengthy hearing, the Board confirmed the approval. The Board found that the approval was not issued for an improper purpose, and it would be absurd if an approval could not be issued to restore the flow in a stream that had been unlawfully diverted. In addition, the Board rejected the Appellants’ submission that they had suffered prejudice due to unreasonable delays in the Ministry’s investigation, and that the passage of time prevented the Ministry from applying for an approval. The Board found that the Water Act has no time limitations regarding approvals, and the Ministry provided a reasonable explanation as to why the investigation took time. In addition, the Appellants failed to establish that they were prejudiced by any delay.

The Board also found that the alleged negative effects of the approval were speculative, and the Ministry had carefully considered different options and their impacts before selecting a course of action. There was no evidence that the approval posed a danger to life, property or the environment. There was also no evidence that the Appellants would have no water if the approval was implemented. The evidence established that the Appellants used other water sources on their properties, including springs and/or groundwater wells. Furthermore, none of the Appellants established how much surface water they needed for domestic purposes. Therefore, it was unknown what, if any, negative impacts the approval would have on the Appellants’ use of water in the diverted channel.

Additionally, the Board rejected the Appellants’ claim that they had a common law right to use the diverted water flow, that Crown land grants issued in the 1920’s to the original owners of their property provided a right to use the water flowing on their land, and that the Province has no legislative authority over water rights in BC. The Board found that the Crown grants provided no guarantee that the landowners would be able to use a specific amount of water from a particular water source. Moreover, given that the Crown grants were issued several decades before the diverted channel was built, the Crown grants could not have provided the landowners with any right to use water in the diverted channel. The Board also held that the courts have previously held that the common law rights historically enjoyed by riparian owners were abrogated by the Water Act and its statutory predecessors.

In addition, the Board rejected the Appellants’ allegations of bias. Although the approval was issued by a decision-maker employed in the same Ministry as the applicant for the approval, the Regional Manager remained independent and objective in his decision-making process. The approval did not breach the Appellants’ rights under the Charter of Rights and Freedoms.

Accordingly, the Board dismissed the appeals.

Mr. Lindelauf sought a judicial review of the Board’s decision by the BC Supreme Court. Mr. Lindelauf sought to set aside the Board’s decision for essentially the same reasons as those he had expressed before the Board. He also sought to tender new evidence, which the Court denied. The Court held that judicial reviews are typically based on the evidence that was before the tribunal, and in this case, there were no exceptional circumstances that justified allowing new evidence to be introduced.

The Court also discussed its role in a judicial review proceeding. The Court held that, with the exception of constitutional questions, the reasonableness standard applied in this case, meaning that the Court would not interfere with the Board’s decision as long as it fell within the range of possible, acceptable outcomes. However, the constitutional questions would be reviewed based on the correctness standard, meaning that the Court would not defer to the Board’s decision.

Next, the Court reviewed the Board’s hearing process and found that Mr. Lindelauf was provided with a fair hearing. Regarding the constitutional questions, the Court held that the Board correctly concluded that the right to use water is lawfully vested in the Province. Regarding the allegation of bias in the Regional Manager’s decision-making process, the Court held that the Board correctly determined that there was no bias, and even if there had been bias, it was corrected by the new hearing of the matter by the Board. Finally, the Court concluded that the Board’s decision was reasonable, transparent and intelligible.

Accordingly, the Court confirmed the Board’s decision, and dismissed Mr. Lindelauf’s petition for judicial review.