Panel: Katherine Hough, Sheila Bull, Helmut Klughammer
Keywords:Water Act – s.6, s.15, s.18(1), s.38(5), s.40; Omineca Enterprises Ltd. v. An Appeal Board Appointed Pursuant to the Forest Act (B.C.S.C.); priority of licences; notice of licence amendment; Board remedial orders
The Skuppah Indian Band appealed the November 13, 1996 decision of the Comptroller of Water Rights which upheld another decision of the Regional Water Manager amending a Final Water Licence. The amendment resulted in the issuance of a Conditional Water Licence, which was appealed. The Skuppahs grounds for the appeal were that no notice of the amendment was sent to it and that the Regional Water Manager failed to hold a hearing once the Skuppah objected to the amendment.
The Board determined that it had jurisdiction to hear evidence on the issue of water licence priority under the Water Act and that the Skuppah Indian Band had first priority on George Creek. Because of its first priority and because of s.18 of the Water Act, which requires notice to all persons whose rights may be affected by a water licence amendment, the Board found that the Skuppah should have received notice of the amendment. The Water Branch was required to consider the objection to the amendment and then to notify the objectors before amending the licence. The Board concluded by making the following orders: that the Skuppah were authorized to construct works to divert water further upstream than the amended licence in question, that the priority dates on three of the Skuppahs licences be changed to September 26, 1888, and that the error in the naming of the watercourse (George Creek) be corrected by the appropriate official. The Board allowed the appeal.