Keywords: Water Act – ss. 9(1), 9(2), 41(1)(s); fettering of discretion; changes in and about a stream; fish habitat
This was an appeal of the approval granted by an Engineer under the Water Act, to Shuswap Lakes Vacations Inc. The approval allowed the Appellant to construct or replace retaining walls where the Appellant’s property meets the foreshore of Sicamous Narrows, subject to certain conditions. Some of the conditions were imposed to minimize or mitigate harm to salmon habitat along the foreshore as a result of consultation with the federal Department of Fisheries and Oceans (“DFO”) and in accordance with the Sicamous Narrows Management Plan. The Appellant asked the Board to remove or vary a number of those conditions on the grounds that the Engineer exceeded his jurisdiction, unlawfully subdelegated his jurisdiction to DFO, fettered his discretion and erred in imposing two of the conditions.
The Board found that the Engineer did not err in any of the ways alleged by the Appellant. The Board further found the conditions in the approval to be reasonable and appropriate. The appeal was dismissed.