Decision Date: April 6, 2021

Panel: Darrell Le Houillier

Keywords: Water Users’ Communities Act – s. 100.1; Water Sustainability Act – ss. 31, 105(1); Administrative Tribunals Act – s. 31(1)(a); appealable order; summary dismissal; jurisdiction

The Nature Trust of British Columbia (“NTBC”) appealed what it considered to be three decisions of the Comptroller of Water Rights (the “Comptroller”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The appeals related to water licences that were held by NTBC and were part of the Allendale Water Users’ Community (“Allendale”), a water users’ community under the Water Users’ Communities Act (the “WUCA”). Under the WUCA, a water users’ communities can maintain and operate works, and levy financial assessments on its members. The water licensees comprising Allendale rely on water stored in Allendale Lake, which was created by dams that need significant repair or decommissioning. NTBC became a member of Allendale after it acquired several water licences that were part of Allendale.

In 2017, NTBC applied to the Comptroller to abandon three of its water licences. In May 2018, NTBC applied to the Comptroller to abandon its remaining water licences. According to NTBC, it received no substantive reply from the Comptroller about those applications.

In April 2018, NTBC also notified the manager of Allendale that it was withdrawing from Allendale, effective immediately. However, Allendale issued a 2018 assessment to NTBC. NTBC objected to paying the 2018 assessment, and asked the Comptroller to review the matter.
In 2020, the Comptroller decided that NTBC had to pay the 2018 assessment. In making that decision, the Comptroller held that NTBC was still a member of Allendale when the 2018 assessment was issued.

The three matters that NTBC sought to appeal were: 1) the Comptroller’s decision confirming the 2018 assessment; 2) the Comptroller’s alleged failure to acknowledge NTBC’s withdrawal from Allendale; and, 3) the Comptroller’s alleged failure to make a decision on NTBC’s water licence abandonment applications.

The Board accepted that the Comptroller’s decision confirming the 2018 assessment was an appealable “order” under the WSA. However, the Board sought submissions from the parties on whether the last two matters were appealable “orders” under the Water Sustainability Act (the “WSA”).

The Board found that the Comptroller’s conclusion that NTBC was part of Allendale when the 2018 assessment was issued was not an appealable order on its own. Rather, it was a finding within the Comptroller’s decision or order confirming the 2018 assessment. In addressing NTBC’s appeal of that order, the Board would consider the Comptroller’s finding that NTBC was part of Allendale when the 2018 assessment was issued. Therefore, the Board summarily dismissed the appeal of the second matter for lack of jurisdiction, pursuant to section 31(a) of the Administrative Tribunals Act (the “ATA”).

Next, the Board concluded that the Comptroller’s lack of decision-making in respect of NTBC’s applications to abandon its water licences may be an appealable order under the WSA, but a conclusion on that required more detailed submissions and evidence, which would be provided at a hearing on the merits of the appeals. The Comptroller maintained that he did not decide the abandonment applications because they were incomplete, whereas NTBC said it had responded to the request for more information. The evidence at this preliminary stage of the appeal process left the Board with significant questions. Therefore, this appeal was not summarily dismissed.

Accordingly, one of the three appeals was summarily dismissed pursuant to section 31(a) of the ATA.