Decision Date: April 12, 2012
Panel: Alan Andison
Keywords: Water Act – ss. 18(1)(e), 92; preliminary decision; grounds for appeal; remedy; licence amendment; diversion point
John William Palmer and Dr. Marvin G. Palmer (the “Appellants”) appealed against a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), to amend their water licence. The licence was issued in 1970, and is appurtenant to the Appellants’ farm located near Brisco, BC. The licence authorizes the diversion of 1,000 gallons per day for domestic use from a source named Grieshuber Spring. The Appellants purchased the property in or around 1991, and the licence was transferred into their names.
The amendment made after Ministry staff attended the site and determined that there was an error in the original map attached to the licence, which showed the diversion point in the wrong location. In January 2012, the licence was amended to correct the map attached to the licence, to show where the water is actually diverted from.
The Appellants filed two separate appeals. In both cases, the grounds for appeal related to the original licence issued in 1970, and the issuance of a licence in 2002 to another person. The Appellants submitted that their water supply decreased due to the licence issued in 2002 on Morrison Creek, because Grieshuber Spring is the headwaters of the Creek. They requested that the Board review the 2002 licensing decision, and give the Appellants’ water rights on the Creek with priority over the 2002 licence.
After the appeals were filed, the Water Manager requested that the Board dismiss the appeals because the grounds for appeal did not relate to the 2012 amendment.
The Board requested written submissions from all parties before deciding whether the grounds for appeal and remedies sought by the Appellants were within the scope of the appealed decision.
The Board found that the decision under appeal was the amendment issued in 2012, which was limited to changing the diversion point shown on the map attached to the Appellants’ licence. No other aspects of the licence were amended, including the name of the water source. The Water Act specifies a 30-day period for appealing decisions, and the Board has no jurisdiction to extend the appeal period. Therefore, the 2012 amendment to the diversion point shown on the map attached to the licence is the only decision that could be appealed.
In addition, the Board found that the Appellants’ concerns related to the priority of their licence in relation to the 2002 licence, and whether their licence should name Morrison Creek as their water source on the basis that Greishuber Spring is the headwaters to the Creek. The Board noted that it has no authority under its enabling legislation to inquire into, or make decisions on, matters that go beyond the appealed decision. The Board held that, to consider the Appellants’ grounds for appeal and the remedies they sought, the Board would have to ignore the 30-day appeal period and reopen the original decision to issue the licence over 40 years ago. Similarly, the Board had no jurisdiction to consider the 2002 licensing decision.
Accordingly, the appeals were dismissed.