Decision Date: March 26, 2007
Panel: Alan Andison
Keywords: Environmental Management Act – ss. 94(1)(a); approval; stream
Rajinder Mann appealed a decision of the Assistant Regional Water Manager, Ministry of Environment, denying Mr. Mann’s application for an approval under the Water Act to make changes in and about a stream. Specifically, Mr. Mann sought permission to infill portions of a wetland, a ravine and an unnamed creek in order to build a road on his property. The Assistant Regional Water Manager rejected the application on the ground that the creek, associated ravine and wetland constitute a high value ecosystem.
A hearing of that appeal (2006-WAT-007) commenced in January 2007, but was adjourned before any evidence was introduced because the Panel learned that Mr. Mann had submitted a revised application to the Ministry which could address the Ministry’s concerns and render the appeal moot. The Assistant Regional Water Manager denied the second application in February 2007, and Mr. Mann filed a second appeal. The two appeals were scheduled to be heard together in early April 2007.
Less than one month before the appeal hearing reconvened, the Western Canada Wilderness Committee (“WCWC”) and the Central Valley Naturalists (“CVN”) applied for participant status in the appeals. They sought to be added as individual participants, but proposed to make joint submissions in the appeal hearing. Among other things, the applicants sought to present evidence and witnesses, cross-examine witnesses, and make oral submissions at the hearing. In particular, they sought to introduce a consultant’s report that they had allegedly obtained by trespassing on Mr. Mann’s property. They also sought that their participation be granted on the basis that the Board would order that the applicants would neither seek nor be liable for costs. Mr. Mann opposed the applications for participant status.
The Board first considered whether the applicants are legal persons. The Board found that the WCWC is a “person” within the meaning of the BC Interpretation Act because it is incorporated under the Society Act. The Board found that the CVN is not incorporated and is not a “person” at law. Given those facts, and that section 94(1)(a) of the Environmental Management Act gives the Board the discretion to hear the evidence of “any person”, the Board found that the CVN had no standing to take part as participants. However, the Board held that Henk Saaltink, who is the director of conservation with the CVN, could be substituted for the CVN for the purposes of considering the application. The Board noted that Mr. Saaltink had originally sought participant status in his personal capacity, but the Board did not receive his application because he sent it to the wrong address.
The Board then considered whether the applications should be granted. The Board found that both applicants had a valid interest in participating, and their participation would be of assistance to the Board. However, the Board held that the applicants’ participation should be restricted in order to minimize delay and repetition. Specifically, the Board ordered that the applicants would not be permitted to cross-examine witnesses, and they would be subject to a 30 minute time limit for their closing argument. The Board also held that the consultant’s report could not be introduced into evidence, nor could its author testify, because allowing that evidence would be unduly prejudicial to the other parties given that the report had not been provided to the parties or the Board and the hearing was reconvening in one week. Finally, the Board refused to order that the applicants could neither seek nor be liable for costs.
The application was granted, in part.