Larry Jones v. Assistant Water Manager

Decision Date: November 4, 2021

Panel: David Bird

Keywords: Water Sustainability Act - s. 93(2)(b); Administrative Tribunals Act – s. 31(1)(f); stop work order; changes in and about a stream; summary dismissal; no reasonable prospect of success

Larry Jones (the “Appellant”) appealed a stop work order (the “Order”) issued by an Assistant Water Manager with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

The Order arose from the following circumstances. In late March 2021, a conservation officer saw an excavator working in and around Volcanic Creek and the Granby River near Grand Forks, British Columbia. Both incidents occurred adjacent to land owned by Red Hawk Ranch Ltd., of which the Appellant is a director. On both occasions, the conservation officer told the Appellant that section 11 of the Water Sustainability Act (“WSA”) required him to apply for authorization to make changes in or about a stream before doing such work.

On March 30, 2021, the Appellant applied for an authorization to make changes in or about the streams.

On April 1, 2021, the Assistant Water Manager issued the Order under section 93(2)(b) of the WSA.

The Appellant appealed the Order. He submitted that the ranch suffered significant damage and financial loss related to flooding during Spring freshet over the past two years. The Appellant sought to remediate and stabilize the stream banks before the next freshet to prevent further flooding and loss of farmland and livestock.

Shortly after the Appellant appealed the Order, he applied for a stay of the Order pending the Board’s decision on the merits of the appeal. The Board denied his application for a stay (Decision No. EAB-WSA-21-A006(a), June 25, 2021).

After the Board denied the stay application, the Board requested submissions from the parties on whether the appeal should be summarily dismissed under section 31(1)(f) of the Administrative Tribunals Act (“ATA”), which empowers the Board to summarily dismiss an appeal if the appeal has no reasonable prospect of success. Subsequently, the Assistant Water Manager notified the Board that the Appellant’s application to make changes in or about the streams was approved on September 16, 2021.

The Board found that although the Appellant ultimately received authorization to conduct work in and about the streams, there was undisputed evidence that he had no such authorization when the Order was issued. The Board concluded that there was no reasonable prospect that the appeal would succeed if it proceeded to a hearing on the merits. Consequently, the appeal was summarily dismissed under section 31(1)(f) of the ATA.