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Environmental Appeal Board

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DECISION NOS. 2013-WAT-003(a), 004(b) and 005(a)

In the matter of appeals under section 92 of the Water Act, R.S.B.C. 1996, c. 483.

BETWEEN: Michael and Joaney Lindelauf Jill Fitzpatrick William Switzer APPELLANTS

AND: Assistant Regional Water Manager RESPONDENT AND: Ministry of Forests, Lands and Natural Resource Operations THIRD PARTY AND: Menno Schellenberg

Frances Monk Douglas Jack

Daniel Sanford Larry Campbell and Holly Campbell PARTICIPANTS BEFORE: A Panel1 of the Environmental Appeal Board Gabriella Lang, Panel Chair Blair Lockhart, Panel Member DATE: June 23 to 27, 2014; July 7 to 11, 2014; February 16-18, 2015; and concluded by written submissions on April 12, 2015 LOCATION: Kamloops, BC APPEARING: For the Appellants:

Michael and Joaney Lindelauf: Self-represented Jill Fitzpatrick and William Switzer: Dennis Fitzpatrick,

Counsel For the Respondent and Third Party: Cory Bargen

and Stephen E. King, Counsel

For the Participants: Self-represented

1 R.G. Holtby participated as a Panel Member during the June and July hearing dates, but then he removed himself from the Panel for health reasons, Mr. Holtby did not participate in the decision-making process.

http://www.eab.gov.bc.ca/

DECISION NOS. 2013-WAT-003(a), 004(b), 005(a)

APPEALS

[1] The Appellants appeal approval A307003 (the “Approval”) issued on January 7, 2013 by Rick Sommer, Assistant Regional Water Manager (the “Regional Manager”), Kamloops/Headwaters Forest District, Ministry of Forests Lands and Natural Resource Operations (the “Ministry”). The Regional Manager issued the Approval pursuant to section 9 of the Water Act. The Approval was issued to Andy Oetter, Manager of Authorizations of the Ministry’s Thompson Okanagan Region. The Approval authorizes the Ministry to make certain changes in and about Robbins Creek, located near Kamloops, British Columbia. The Approval states that the changes are intended to “redirect the surface flow of Robbins Creek back into its original channel”.

[2] In this matter, the Regional Manager is the Respondent, and the Ministry is the Third Party, but both of these parties are represented by the same legal counsel.

[3] The Environmental Appeal Board has the authority to hear this appeal under section 93 of the Environmental Management Act and section 92 of the Water Act. Section 92(8) of the Water Act provides that the Board may:

(a) send the matter back to the comptroller, regional water manager or engineer, with directions,

(b) confirm, reverse or vary the order being appealed, or (c) make any order that the person whose order is being appealed could have

made and that the Board considers appropriate in the circumstances.

[4] The Appellants seek an order reversing the Regional Manager’s Approval.

BACKGROUND

[5] The upper Robbins Creek watershed is located southeast of Kamloops, British Columbia. Streams in the watershed generally flow in a north/northwest direction, from higher elevation areas in the southeast towards the South Thompson River.

[6] A map titled “Robbins Creek Diversions” was attached to the Ministry’s application for the Approval. To simplify the various locational references in the evidence and in this decision, the Panel has used the site names and numbers on that map. A copy of this map is attached to the end of this decision, as an appendix.

[7] In this decision, the Panel has referred to the area on the map labelled “Upper Diversion: ~ 1979” as the “upper diversion”. The watercourse indicated on the map as flowing from “Upper Diversion: ~ 1979” to the “Lower Diversion: ~ 1995”, to the “Lower Diversion: ~ 2008”, past “Pond Feature 2”, and up to the dark line in the northeast with the letters “ROBB” has been referred to as the “diverted channel”. The black line, starting in the southeast corner and running up to the northeast corner, through Bogetti Meadow and past the “Affected PD”, has been referred to as the “original channel.” The points that are labelled “Affected PDs” indicate the Campbells’ and Jacks’ points of diversion. The original and diverted channels reconnect near Cowan Meadow.


[8] The site labelled on the map as “Proposed Restoration of Unauthorized Change” is on Crown land, and is where the Ministry proposes to conduct the primary work authorized under the Approval.

[9] The shaded areas on this map indicate privately owned land. The Lindelauf family owns the lots labelled “LS 11” and “LS 14” on the map, which is on either side of the diverted channel starting at point “26” and continuing through Barney Meadow. Ms. Fitzpatrick owns lots labelled “LS 10” and “LS 15”, through which the original channel flows through Bogetti Meadow, and through which the diverted channel runs just to the north. That area of the diverted channel also flows through property owned by the Mitchell family. The original channel crosses through land owned by the Balkan and Andersson families. Mr. Switzer owns the property through which the diverted channel flows past “Pond Feature 2” on the map.

[10] As the Appellants own property that borders on the diverted channel and/or the original channel, they consider themselves to be riparian owners. However, it should be noted that none of the Appellants hold water licences on Robbins Creek.

[11] The water in Robbins Creek is fully recorded. There are 51 water licences on Robbins Creek dating from as far back as 1889, which are held by 23 licensees. Two of those licensees, the Campbells and the Jacks, are upstream of Cowan Meadow, and the remaining licensees are downstream of Cowan Meadow. After it leaves Cowan Meadow, Robbins Creek continues north into Disdero Lake, and then onto Monte Creek, and into the South Thompson River. There is a water diversion after Disdero Lake into Little Disdero Lake, which is a storage lake for the licensees.

[12] The evidence during the hearing indicated that there has been a water bailiff appointed for Robbins Creek for many years. The current Deputy Water Bailiff is Daniel Sanford. A comptroller or regional water manager can appoint a water bailiff under section 35 of the Water Act to regulate the diversion and use of water from a stream, if a Ministry engineer is unable to do so in person. A water bailiff has the authority, subject to the supervision of the engineer, to enter on any land, to regulate and control the diversion and use of water from the streams with respect to which his or her appointment relates, and to regulate and control all diversion works on them. A water bailiff is compensated by the persons using water from the streams affected.

[13] Beginning in about the 1970’s, the Robbins Creek licence holders complained to the Ministry and the water bailiff about a lack of water, improper diversions, and siltation. The Ministry and different water bailiffs undertook different investigations to determine what was causing the problems that licensees had complained about. In about 2011, after receiving more complaints about the lack of water flow and siltation, the Ministry undertook a more extensive investigation. The Ministry undertook various studies, including field work and a review of maps, aerial photographs, and historical records, and identified options and risks for different courses of action.

[14] That investigation resulted in the discovery of the upper diversion (i.e., the diversion marked on the map as “Upper Diversion ~ 1979”) in Robbins Creek, which was sending water from the main channel of Robbins Creek to a diverted channel. The Ministry determined that the upper diversion was unauthorized. The Ministry also discovered other unauthorized diversions downstream from the upper


diversion, along the diverted channel. The Ministry decided to apply for an approval under section 9 of the Water Act to conduct works to remedy areas where the Ministry concluded that the flow could be redirected and the level of siltation could be decreased for the downstream licence holders.

[15] In the discussions that follow, the Panel has provided a more detailed description of the subject area, the Ministry’s investigation, the parties’ evidence and submissions, the Ministry’s application, and the Approval.

The Ministry’s application for the Approval

[16] On June 13, 2012, the Ministry applied for an approval under section 9 of the Water Act to restore Robbins Creek to its original channel. The proposed work would occur on four sites, with the primary work site situated at the upper diversion, which is on Crown land south of Robbins Range Road, near the west boundary of the Southeast ¼, Section 26, Township 18, Range 15 W6M. Attached to the application are two maps, as well as a sketch drawing showing Robbins Creek, the unauthorized diversion ditch, the original stream channel, and the locations of the proposed restoration work.

[17] The application was sent to interested parties with a letter dated June 14, 2012, inviting written comments on the application by July 18, 2012. In June 2012, the Ministry also held a public meeting to present the findings of its investigations and its recommendations for addressing the issues.

[18] In response, Mr. and Mrs. Lindelauf and Ms. Fitzpatrick provided written objections to the Ministry regarding the proposal to apply for an approval.

[19] Much of the Ministry’s more recent investigation work was undertaken primarily by Tim Giles, a Research Geomorphologist with the Ministry, and Bruce McFarlane, a Water Resource Hydrologist with the Ministry, under the direction of Mr. Oetter. In December 2012, Mr. Giles and Mr. McFarlane completed a report that investigated the risks and benefits associated with two options for restoring Robbins Creek to its original channel: the original proposal to conduct restoration work at the site of the upper diversion; and an alternative proposal involving restoration work at the two lower diversions at Bogetti Meadow. They also considered a third option of doing nothing and leaving the unauthorized diversions in place. They recommended that Robbins Creek be restored to its original channel at the site of the upper diversion. On December 19, 2012, their report was provided to the Regional Manager, in support of the Ministry’s application for an approval.

[20] More extensive details of the application and the parties’ responses are discussed below.

The Approval

[21] The Approval authorizes the Ministry to make changes in and about Robbins Creek, and specifically, to “redirect the surface flow of Robbins Creek back into its original channel” by construction on four properties described as Sites 1, 2, 3 and 4. In the Approval, this construction is described as follows:


• At Site 1: Stream-bank protection where the restoration channel will be excavated, berming of an overflow stream channel above the diversion, removal of a 36” diameter culvert, and in-filling of the diversion channel for approximately 10 metres down-slope of the diversion;

• At Site 2: minor stream-bank reconstruction/contouring;

• At Site 3: removal of a washed out culvert and re-countouring of the road approaches; and

• At Site 4: possible culvert installation, as described in the application.

[22] The Approval has several conditions, including that the work shall comply with design plans submitted by the Ministry with its June 13, 2012 application. The conditions also provide directions about how the construction is to proceed.

[23] The Approval states that the works shall be completed on or before December 31, 2013. However, that did not occur. After the Approval was appealed, the Ministry consented to a voluntary stay of the Approval, pending the Board’s decision on the appeals.

The Appeals

[24] In early February 2013, appeals against the Approval were filed by Michael and Joaney Lindelauf (Appeal No. 2013–WAT-003), Jill Fitzpatrick (Appeal No. 2013–WAT-004), and William Switzer (Appeal No. 2013-WAT-005). In their Notices of Appeal, the Appellants raised numerous grounds for appeal, which are discussed below.

[25] After the appeals were filed, each of the Appellants filed amended Notices of Appeal which added further grounds for appeal. Among other things, Mr. Switzer added grounds for appeal regarding the Province’s constitutional powers and the Charter of Rights. Mr. and Mrs. Lindelauf added grounds for appeal regarding the constitutional rights of persons who own riparian land. Ms. Fitzpatrick’s amended Notice of Appeal contained only minor changes, but her original Notice of Appeal included arguments regarding constitutional rights.

[26] Given that the Appellants had raised constitutional questions in their grounds for appeal, the Appellants were obligated under the Constitutional Question Act, R.S.B.C. 1996, c. 68, to provide notice to the Attorney General of Canada and the Attorney General of British Columbia. The Appellants served their respective notices of constitutional questions on the Attorney General of British Columbia and the Attorney General of Canada. The Attorney General of British Columbia responded to that notice through the submissions of the Ministry and the Regional Manager. The Attorney General of Canada responded that it would not be intervening.

The Board’s preliminary decision to strike some grounds of appeal

[27] On May 20, 2014, the Ministry and the Regional Manager applied to have some of Ms. Fitzpatrick’s grounds of appeal struck. In general, they submitted that


some of the assertions and legal arguments set out in Ms. Fitzpatrick’s amended Notice of Appeal were irrelevant and/or raised issues that were outside of the Board’s jurisdiction.

[28] On June 16, 2014, after considering written submissions, the Board struck certain grounds of appeal (Decision No. 2013-WAT-004(a)). At para. 96 of that decision, the Board concluded as follows:

In making these findings, the Panel wishes to emphasize that the Board does not have the jurisdiction to make any decision on whether or not other licences ought to have been, or ought to be, cancelled for non-use, nor make any declarations on these matters. Nor will the Board be deciding whether a declaration of beneficial use ought to have been required from other licensees. This hearing is to decide, not only whether the Approval was issued on the basis of a legal or factual error, but also whether, based on new evidence presented to the Board, it should be confirmed, varied or rescinded.

[29] The Panel notes that, notwithstanding that decision, the Appellants still submitted evidence and arguments regarding the grounds that the Board struck. The Panel has not considered the grounds of appeal that were struck by the Board. In the June 16, 2014 decision, the Board also noted the limited jurisdiction it has in these appeals, and in particular, that it cannot issue some of the declarations requested by Ms. Fitzpatrick.

The Parties’ and Participants’ Positions in the Appeals

The Appellants

[30] As described above, all of the Appellants own property bordering parts of the diverted channel and/or the original channel. They disagree with the Ministry’s position, and they object to the Approval. Despite the fact that the Approval states that it will “redirect the surface flow of Robbins Creek back into its original channel” (i.e., re-direct the water that currently flows in the diverted channel back into the original channel), the Appellants submit that the diversions have been in place for a long time, and the works allowed under the Approval will actually move the water in the diverted channel away from its historical path. They submit that their property and interests will be damaged by the Approval, and they want to maintain the status quo.

[31] The Panel reviewed the Notices of Appeal submitted by the Appellants, their opening and closing submissions, and all of their evidence. The Panel also considered this Board’s June 16, 2014 decision striking certain paragraphs from Ms. Fitzpatrick’s amended Notice of Appeal. The Panel has summarized and consolidated the Appellants’ grounds of appeal as follows.

[32] The Appellants ask the Board to overturn the Approval so that the status quo can be maintained, for the following reasons:

1. The basis for the Approval, which was the December 2012 investigation report from Mr. Giles and Mr. McFarlane, has flaws and omissions. They did not establish that the original channel is large enough to carry all the water


that will be directed to it if the Approval is implemented, and the Ministry did not establish that the Approval would address the problem of siltation/sedimentation downstream.

2. The motive for the Ministry’s application and Approval was not disclosed, and therefore, was for the benefit of Robbins Creek licence holders.

3. Section 9 of the Water Act does not apply in this case.

4. Delays by the Ministry in acting on the Robbins Creek issues resulted in prejudice and inequities towards the Appellants. The principle of laches2 and the Limitation Act, S.B.C. 2012, c. 13, apply.

5. The Approval will take away the Appellants’ water rights and have adverse impacts on the flow of the diverted channel through their properties. They will no longer have the flow they are entitled to, and/or expected to have when they bought their properties.

6. The work under the Approval will have adverse impacts on the Appellants and their properties, which the Regional Manager did not take into account: negative impacts on the aesthetic values of their properties; adverse impacts to property values and their livelihood; flooding; dewatering of the diversion channel, meadows and ponds; and, ecological impacts on habitat and wildlife.

7. The Regional Manager should have considered alternatives.

8. The Ministry’s application and the Approval breached the principles of natural justice and violated the Charter of Rights because there was a reasonable apprehension of bias, and actual bias, in the decision-making process, and because the Regional Manager failed to give reasons for his Approval.

9. The Water Act is unconstitutional and the Approval is unconstitutional.

The Regional Manager and the Ministry

[33] The Regional Manager submits that the Approval should be confirmed.

[34] The Ministry supports the Regional Manager’s position.

[35] Given that the Regional Manager and the Ministry relied on the same evidence and arguments, the Panel has referred to them in this decision as the Responding Parties.

2 The Merriam-Webster Dictionary defines “laches” as “negligence in the observance of duty or opportunity; undue delay in asserting a legal right or privilege”.


The Participants

[36] The Board granted Participant status, on a limited basis, to the following persons: Menno Schellenberg, Frances Monk, Dr. Douglas Jack, Daniel Sanford, and Larry Campbell and Holly Campbell.

[37] Menno Schellenberg manages Monte Creek Ranch, which borders the original channel of Robbins Creek. He appeared only at the beginning of the first day of the hearing, and indicated that he supports the Responding Parties’ positions. He submitted no evidence or arguments.

[38] Frances Monk owns property downstream from Cowan Meadow, and is a Robbins Creek licence holder. She supports the Appellants’ position for no changes. However, if the Approval is upheld, then she submits that monitoring requirements should be included. She also submits that criteria should be added to address any damage resulting from the Approval, and who would be responsible for compensation. Ms. Monk appeared at the hearing, provided evidence, and submitted written closing arguments.

[39] Dr. Douglas Jack owns property to the west of the original channel of Robbins Creek, and is a licence holder. He supports the Approval, and wants water to be re-established in Robbins Creek’s original channel. He provided a written submission stating that the status quo would escalate erosion problems and deposit silt in Little Disdero Lake, thereby:

• decreasing capacity and reducing water available for irrigation purposes to downstream users, such that their hay farms will remain non-productive;

• causing continued decline in the populations of birds, frogs and endangered painted turtles in Upper Buse Lake; and

• destroying the natural environment of Robbins Creek.

[40] Daniel Sanford is the Robbins Creek Deputy Water Bailiff, and holds a licence on Robbins Creek downstream. He did not appear at the hearing, but submitted a closing written statement, stating that his concerns are:

• the long-term economic costs of erosion and silt deposit into the Little Disdero Lakes reservoir;

• the loss of water through ground seepage and unauthorized use prior to the Little Disdero Lakes diversion; and

• the short-term economic costs of loss of water, if old original channels, meadows and ponds take excessive time to fill and support water flows.

[41] As a downstream licensee, he asks that all steps be taken to ensure that the loss of economic benefits is minimized in any decision to restore, or not restore, water flow to the original channel.

[42] Larry Campbell and Holly Campbell, also Robbins Creek licence holders, have been landowners and commercial beef producers in the Robbins Range for over 46 years. They appeared at the hearing, provided evidence, and submitted written closing arguments. The Campbells support the restoration of Robbins Creek to its natural ecosystem, so that they will have sufficient water to meet the specifications in their water licence, and so that their hay field in Hidden Vale can once again be an economically viable part of their agricultural operation. In their submissions, they cited what they consider to be the negative consequences that would result


from maintaining the status quo, and the positive effects of re-establishing the natural channel of Robbins Creek.

THE BOARD’S JURISDICTION IN THESE APPEALS

[43] The Panel has reviewed and considered all of the evidence, and the submissions and arguments of all of the parties. Based on some of those submissions, and given some of the remedies requested by the Appellants, the Panel considers it necessary to again explain the Board’s limited jurisdiction in appeals under section 92 of the Water Act.

[44] As a statutory body, the Board’s jurisdiction regarding the remedies it can issue is limited to what is specifically stated under section 92(8) of the Water Act. Under that section, the Panel may only confirm, reverse or vary the Regional Manager’s decision, send the matter back to the Regional Manager with directions, or make any decision that the Regional Manager could have made and that the Panel considers appropriate in the circumstances.

[45] In addition, section 92(7) of the Water Act and sections 100 and 101.1(1) of the Environmental Management Act provide that the Board may conduct an appeal by way of a new hearing. That means that the Board has the authority to consider new evidence; i.e., evidence that was not before the Regional Manager. The Board has adopted this approach of hearing and considering new evidence in most of its previous decisions, including the following: Hindson v. British Columbia (Ministry of Water, Land and Air Protection), [2005] BCEA No. 8 (EAB) [“Hindson”]; and, Demcak v. Director of Wildlife (Decision No. 2012-WIL-012(a), June 14, 2013) [“Demcak”].

[46] The Panel conducted the Appellants’ appeals as an oral hearing over two and a half weeks. This provided the Appellants and Responding Parties with the opportunity to put forward evidence, including witness testimony and documentary evidence, and the opportunity to cross-examine witnesses. The Participants were given the opportunity to present evidence, but not to cross-examine witnesses. All parties were then provided the opportunity to submit their closing arguments by way of written submissions.

[47] The Appellants also filed Notices of Constitutional Questions. The Board has the jurisdiction to decide constitutional questions arising in appeals because, under section 94(2) of the Environmental Management Act, it has the authority to consider questions of law, which include constitutional questions. Thus, the Panel has the authority to consider the Charter of Rights issues raised in the appeals.

[48] However, the Board does not have the jurisdiction to declare any provincial legislation to be unconstitutional. That jurisdiction lies with the courts. If, in the process of deciding an appeal, the Board finds legislation to be unconstitutional, the Board may treat the impugned statutory provision as invalid in deciding the appeal (for example, see Halme’s Auto Service Ltd. et al v. Regional Waste Manager (Decision Nos. 1998-WAS-018(c) and 1998-WAS-031(a), March 24, 2014), at paras. 307 to 309).

[49] The Panel has reviewed all of the evidence submitted by the parties and the Participants, including oral testimony, affidavits, written records, photographs,


maps, etc. In this decision, the Panel has not repeated all of that evidence, but rather has summarized the evidence and facts relevant to the issues in these appeals.

[50] The Panel also reviewed all of the parties’ and participants’ arguments, the judicial authorities they cited, and the applicable legislation. For some arguments, the Panel has consolidated common positions in the analysis that follows. The Panel has not considered arguments or requests for relief which are not within the Board’s jurisdiction and which are not within the parameters of the issues relevant to the appealed Approval.

[51] The judicial decisions and previous Board decisions the parties have referred to are discussed as needed. Although the Panel is not bound by previous Board decisions, the Panel concurs with the Board decisions it has cited in this decision.

[52] The Panel reminds the Appellants that the onus is on them to prove their cases, to provide authorities to support any legal arguments they make, and to clearly articulate their positions. It is not the Panel’s responsibility to try to interpret what a party’s position is, to establish a party’s case, or to resolve inconsistencies in a party’s position.

ISSUES

[53] The Panel has considered the following issues:

1. Whether the Approval should be reversed based on its merits.

2. Whether the Approval is invalid or should be reversed based on the Appellants’ constitutional arguments.

[54] Several sub-issues are considered under each of these issues.

RELEVANT LEGISLATION

[55] The following sections of the Water Act are relevant to these appeals:

1 In this Act:

…

“stream” includes a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, creek, spring, ravine, swamp and gulch;

“stream channel” means the bed of a stream and the banks of a stream, whether above or below the natural boundary and whether usually containing water or not, including all side channels;

…

2 (1) The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the government, except only in so far as private rights have been established under licences issued or approvals given under this or a former Act.


(2) No right to divert or use water may be acquired by prescription.

[56] The Panel has referred to other applicable sections of the Water Act in the discussion below.

SUMMARY OF EVIDENCE

[57] Below, the Panel has summarized and reviewed the evidence that was presented, first with respect to the history of events prompting the Ministry’s investigations of complaints from Robbins Creek licence holders, and then with respect to the studies that led to the section 9 application and the parties’ respective responses.

[58] First, however, the Panel will identify the witnesses who testified and/or submitted evidence at the hearing.

Witnesses

[59] Michael Lindelauf testified in support of his family’s position. Mr. Lindelauf also submitted the affidavit of Mr. Ollie Coster, who has lived in the area for a long time and remembers events from many years ago. Mr. Coster was unable to attend the hearing in person. Mr. Lindelauf also submitted photographs, a video, and other document evidence to support his position.

[60] Hillary Flatt testified on behalf of the Lindelaufs. Mr. Flatt ranched in the area for many years, and testified about his recollections of Bogetti Meadows and Barney Meadows.

[61] Jill Fitzpatrick testified on her own behalf, and submitted photos and other document evidence about her property.

[62] Mr. and Mrs. Mitchell testified on behalf of Ms. Fitzpatrick. Mr. and Mrs. Mitchell own property on Bogetti Meadow and the diverted channel, and they testified about their property and flooding on it.

[63] William Switzer testified on his own behalf, and submitted photos and other document evidence about his property.

[64] Bruce Harrison testified on behalf of Mr. Switzer. Mr. Harrison is a biologist with Ducks Unlimited, and he testified about Pond Feature 2 as important habitat for a number of species.

[65] Frances Monk testified about her knowledge of the area as a longtime area resident and a Robbins Creek licence holder.

[66] Larry and Holly Campbell testified on their own behalf, and submitted photos and documents about the property they have owned in the area since 1969. They testified about their efforts to deal with their irrigation issues, including retaining a consultant in 2009 to prepare a report to assess the situation.

[67] The following Ministry witnesses provided evidence regarding the investigations and studies that they undertook relevant to these matters.

[68] Mike Edwards worked as a water management officer for the Ministry, based in Kamloops, from 1985 to 2010. He is now retired. He is very familiar with the


Robbins Creek watershed and other watersheds in the region, as well as the histories of complaints in them.

[69] Timothy Giles is a Professional Geologist with the Ministry. He has a B.Sc. and an M.Sc. in Geology. He specializes in geomorphology, which is the study of the processes that have shaped the Earth’s surfaces, in particular fluvial and glacial processes. Mr. Giles is also very experienced at aerial photograph interpretation. He described air photos as essentially a ‘time slice’, used to identify and understand geomorphologic features. He testified that the interpretation of air photos has been integral to understanding the situation at Robbins Creek.

[70] Bruce McFarlane is a Professional Engineer and has a Master’s Degree in Natural Resource Management. Since 2011, he has been the Ministry’s Kamloops area Water Resource Hydrologist. In addition to his qualifications as a Professional Engineer, Mr. McFarlane has completed professional development courses on hill slope stability, best practices in road deactivation, and hydrometrics, which is the study of water flow. Mr. McFarlane is designated under the Water Act as an Assistant Regional Water Manager. However, he was not the decision-maker who issued the Approval.

[71] Mr. Giles and Mr. McFarlane testified as a panel about their investigations and the findings they made. They also provided document evidence, including current photos of the area, historic aerial photos and water flow information. They also testified regarding their December 2012 report, which is a synopsis of their findings and has an assessment of options and risks for proposed solutions.

[72] Philip Belliveau has been a registered Professional Biologist since 1989. He has a B.Sc. in wildlife biology, and he is the Ecosystem Head for the Ministry in Kamloops. Mr. Belliveau is a habitat biologist, meaning that he assesses habitat values according to specific species’ requirements. He assesses the potential impact of development on habitat with a focus on species at risk.

[73] Jeptha Ball is a Hydrotechnical Engineer working for the Ministry. His training and experience includes the hydraulic modelling of streams and stream channel capacity using various computer modelling programs. He has been conducting hydrologic and hydraulic modelling of watercourses since 1974. Mr. Ball did not testify in person. His evidence was submitted by way of an agreed statement of facts.

[74] Andrew Oetter is the Manager of Authorizations for the Ministry’s Thompson Okanagan Region. Mr. Oetter received his Forest Technician Diploma from the British Columbia Institute of Technology in 1986. He has worked throughout the southern part of British Columbia in positions involving timber sales, forest development planning, road and bridge construction and harvesting tenures. As a Manager of Authorizations, he has numerous responsibilities, one of which is as statutory decision-maker designated under the Land Act, the Mines Act, and the Water Act.

[75] Rick Sommer, the Regional Manager, has been a Professional Forester since 1978. In 2011, he became the District Manager of the Ministry’s Kamloops Forest District and the Headwater Forest District in the Thompson Region. He is now the District Manager for the Thompson River Forest District. In the role of District


Manager, he has several areas of responsibility, and is a delegated statutory decision-maker under several statutes, including the Land Act, the Water Act and the Forest Act. He was exercising his authority as an Assistant Regional Water Manager under the Water Act when he issued the Approval.

Evidence regarding the Ministry’s Investigation

[76] As early as the mid-1970s, the Robbins Creek licence holders complained about lack of water volume, improper diversions and over-siltation. Ms. Monk, a downstream licensee, explained that over the years, the downstream licensees noticed that they needed to open the flood gates at Little Disdero Lake earlier each season to have additional water as needed for irrigation.

[77] She said that the licensees complained to the water bailiffs. The general response was typically that there were ‘illegal’ diversions upstream, and that most of the seasonal water shortages were because of the upstream users.

[78] In June 2009, the Robbins Creek water licensees wrote to the Kamloops Regional Manager in the Water Stewardship Division, complaining about illegal diversions on Robbins Creek. They wrote that the diversions had escalated to the extent that the entire creek had been diverted. They wrote that the “illegal diversion of Robbins Creek is an environmental disaster; riparian areas and stream habitats have been destroyed; the creek bed has been damaged”. They also wrote that “The illegal diversion is causing great hardship: two licensees have no water and all other licensees have reduced water. We need the water from Robbins Creek to make hay and/or irrigate pasture to feed our livestock.”

[79] That Regional Manager authorized Mr. Edwards to investigate the allegations. Mr. Edwards testified that he made several site inspections and discussed the problems with several people. He summarized his findings in a report (the “Edwards Report”). The Edwards Report was put into evidence, and Mr. Edwards referred to it during his testimony.

[80] In that report, Mr. Edwards noted that the main source of the complaints appeared to be that the flow of Robbins Creek had been illegally diverted in such a way that the flows were bypassing the licensed point of diversion (PD49174, the “POD”) for the licences held by Mr. Campbell and Dr. Jack.

[81] The Campbells testified that they own 640 acres west of Robbins Creek and have been cattle farming since 1969. They described a one hundred year-old diversion ditch (the “conveyance ditch”) that was put in place to move water from the POD on Robbins Creek to a creek called Buse Creek on their property. Buse Creek meanders in a northwesterly direction to Upper Buse Lake and to Buse Lake, away from the main Robbins Creek channel. The Campbells’ hayfields border Buse Creek, and Dr. Jacks’ hayfields border Upper Buse Lake and Buse Lake. The Campbells said that, in the 1990s, the flow volume into and in the ditch started to diminish.

[82] As early as 1994, the Ministry informed the Jacks and the Campbells that the conveyance ditch was being inadequately maintained, causing substantial water losses. The Campbells said that between 1994 and 2009, they did not use their water licence because no water flowed through the conveyance ditch. There were


also ongoing issues about maintenance of that ditch with the Jacks. The conveyance ditch is on property that the Jacks owned.

[83] In May 2009, after they acquired Cowan Meadow from the Jacks, the Campbells visited the POD and were surprised to see how low the water level was in the original channel. They noticed that the diverted channel, where it joins the original channel north of their POD, was transporting most of the water, rather than the original channel. To them, this explained why water was not flowing from their POD, along the conveyance ditch, and into Buse Creek.

[84] The Campbells’ observations were corroborated by the Edwards Report.

[85] Mr. Edwards pieced together the flow of Robbins Creek and possible dates of diversion, based on his familiarity with the area, seven site inspections (between May and July, 2009), data reviews, and meetings with the various land owners and licensees. People with a variety of expertise accompanied Mr. Edwards during the site inspections, including water bailiffs, various Ministry staff, and a range tenure holder. He traversed the majority of Robbins Creek upstream of Cowan Meadow, along the diverted channel and along the original channel. He particularly noted areas where diversions could be seen.

[86] Mr. Edwards concluded that the main channel of Robbins Creek was altered at the upper diversion between 1984 and 1986 to direct the flow northerly into the meadow on what is now the Lindelaufs’ property. The flow was then ditched through neighboring westerly lots, before reconnecting with the original channel of Robbins Creek at the eastern edge of Bogetti Meadow.

[87] Mr. Edwards also heard that ditching across Bogetti Meadow was carried out between 1992 and 1996. Although the diverted channel returned to Robbins Creek, this occurred downstream from the POD. This occurrence was consistent with the Campbells’ observations that the flow at the POD diminished at about this time.

[88] In December 2009, the Campbells, the Jacks and Jennifer Andersson (owner of lot LS 9 on the map) met with Ministry staff to explore their water options. They discussed the mechanics of restoring the diverted channel back to the original channel upstream from their POD. The proposal included a new ditch on Ms. Andersson’s property to restore water flow from the diverted channel into the original channel on her property. She agreed with the plan.

[89] In February 2010, the Campbells and Jacks each submitted applications under section 18 of the Water Act for this proposed work. Section 18 authorizes amendments to licences and approvals. The Campbells testified that they were then advised that if the section 18 application was granted, they would be responsible for maintaining the entire diverted channel flowing from Ms. Andersson’s property east to the unauthorized diversion. The Campbells were not prepared to assume that ongoing responsibility.

[90] The Campbells were also advised that they could instead consider applying for an approval under section 9 of the Water Act, to make changes in that area. The Campbells did submit a section 9 application, dated May 30, 2012; however, they were still concerned about their ongoing responsibilities. At the hearing, Ms. Campbell confirmed that they did not pursue or receive approval for either of the applications.


[91] Mr. McFarlane said that the Campbells were advised that the proposed works, if approved, would only get water past the POD. However, the Campbells would not be allowed to divert water at the POD until they addressed the state of the conveyance ditch and unacceptable water losses from the ditch. The Campbells testified that they were reluctant to repair the conveyance ditch without reassurance that the original channel would be restored, and with it adequate flow past their POD.

[92] The condition of the conveyance ditch is a source of ongoing complaints. During the hearing, some witnesses contended that if the Campbells repaired the Buse Creek conveyance ditch, they would once again have sufficient water.

[93] Mr. Oetter testified that he first because aware of concerns about the lack of water in the Robbins Creek watershed in early 2011. He asked Mr. McFarlane to dedicate some time to sort it out, and then he also assigned Mr. Giles to help.

[94] Mr. Oetter said that as the findings came in, he and his staff recognized that the situation was more complicated than they had originally thought. Mr. McFarlane reported that he and Mr. Giles discovered what they believed was the original creek and what they believed was a diversion altering Robbins Creek flow down another channel altogether.

[95] One of the key questions in these appeals is: historically, where did Robbins Creek originally flow? The Appellants say that where the diverted channel flows from the Lindelaufs’ property to and through Mr. Switzer’s property is historically part of Robbins Creek.

[96] Mr. McFarlane and Mr. Giles are satisfied that the original channel they identified (as indicated on the map) is the original location of Robbins Creek. They said that they based their conclusions on: the physical channel features they observed during ground inspections by them and other Ministry staff; historic studies; surveys; and, Mr. Giles’ interpretation of decades of aerial photographs. For example, Mr. Giles testified that the original channel can be identified in aerial photographs taken in 1948, 1951, 1960 and 1966.

[97] Mr. Lindelauf challenged the Ministry’s interpretation of the location of the original channel, relying on a 1917 survey and evidence from longtime residents, to support his position. Mr. Lindelauf submits that the upper diversion was constructed in approximately 1966 or 1967, based on information he received from Mr. Flatt, a longtime area resident of the area.

[98] Mr. Lindelauf also referred to the affidavit evidence of Mr. Ollie Coster, a longtime resident of the area. In that affidavit, Mr. Coster stated that the diverted channel off of Robbins Creek was an historical diversion.

[99] Mr. Giles explained that the 1917 survey cited by Mr. Lindelauf was actually a composite of five surveys, and was likely not accurate. Also, according to Mr. Giles, the aerial photograph evidence does not support the memories of the residents that Mr. Lindelauf relied on. Aerial photos from 1966 show that the creek is in the original channel. 1979 is the first year when the diverted channel is visible in aerial photos.

[100] Mr. McFarlane and Mr. Giles described the physical features they observed on their site visits, which supported their conclusion about the location of the original


channel. They concluded that the original channel exhibits the components of a historic, well established stream; that is, it is in a broad valley with a wide flood plain, has an armored base channel, high banks, and a wide concave base, and it meanders back and forth, creating a seal. They said this is an intact channel, with no signs of undercutting or erosion.

[101] Mr. Giles and Mr. McFarlane testified that they believe the diverted channel is not a natural channel because it is too steep and too straight. It has incised through layers of vegetation and through the thin substrate clay layer. Compared to the diverted channel, the original channel is shallower, has more vegetation around it and even has trees growing out of it. The trees are estimated to be about 30 years old, which is consistent with the estimated timing of the upper diversion.

[102] Phillip Belliveau corroborated the opinions of Mr. Giles and Mr. McFarlane that the diverted channel is only several decades old. He testified that he has known about the Robbins Creek region for several years. He became more aware of this particular matter in about the summer of 2012, when he was asked to visit the area specifically to look for Spadefoot Toad habitat values and any evidence of its presence at Pond Feature 2 and Barney Meadow. Mr. Belliveau said that he walked about two thirds of the way to the beginning of the diverted channel to also assess fish presence/absence and general habitat capabilities.

[103] Mr. Belliveau concluded that there was little likelihood for Spadefoot Toad breeding in the meadows he visited. There were wetland characteristics, but nothing to suggest likely breeding habitat. He also looked at the diverted channel, saw no riparian habitat, and therefore, concluded that it would have little value to species diversity.

[104] Mr. Belliveau noted that the diverted channel was very deep, had steep banks, and was cutting below the root system of plants growing at the edge. To him, what he called “the ditch” looked like a young stream, because it did not have the riparian characteristics such as stream widening, meandering flow, and rising water tables, all of which are ordinarily present in the established stream ecosystems in the region.

[105] Mr. McFarlane said that, during a field inspection of the diverted channel in September, 2011, he noted that this channel lacks the structure more typical of a natural stream, including large woody debris, pools, and armored base. He saw steep vertical banks that extend well below the vegetative rooting depth, which suggests continuing stability concerns. According to Mr. McFarlane, the volume of water redirected by the upper diversion is causing the diverted channel to excavate further, so that it can contain the additional flow. While more than three decades have passed since the unauthorized diversion occurred, channel adjustment and elevated rates of erosion in the diverted channel will likely continue for several decades.

[106] Mr. Giles and Mr. McFarlane also indicated that downstream along the diverted channel there is evidence of side wall failure, and trees are hanging over the bank because the substrate has eroded away. There is a significant elevation drop toward Barney Meadow. The diverted channel is very straight and steep heading into Barney Meadow, and a lot of material is eroding as a result.


[107] According to Mr. Giles and Mr. McFarlane, this erosion will continue because there is a lot of sediment to move, and material will be deposited at Barney Meadow, where the channel flattens out. They also said that increased sedimentation probably led to the need for dredging.

[108] Mr. Giles testified that dredged piles of sediment are evident along the diverted channel in the 1986 aerial photographs, demonstrating that it has been excavated in the past to maintain flow capacity. From Barney Meadow, the flow was ditched southwest towards Bogetti Meadow. Mr. Giles said that air photos from prior years show piles of dredge materials along there also. He said that coarser material that has been eroded from the diverted channel settles out at Barney Meadow, and then the finer silt settles out as the water flows further along Bogetti Meadow.

[109] Mr. Hillary Flatt, a rancher in the area, testified that when a previous owner started to subdivide and sell lots in that area, no one was certain about what diversions were or were not being placed in the properties. Mr. Flatt said that this included a dam at the west end of Barney Meadow, where the diverted channel exits Mr. Lindelauf’s property and then flows about ¾ of a mile to Bogetti Meadow.

[110] Mr. Flatt described the Bogetti Meadow as having water in spring, but not in the fall, from about 1960 through the 1970s. He said the “stream” changed when a previous owner diverted it to flow north towards the meadow on Mr. Lindelauf’s property, in about 1966-67.

[111] Mr. Lindelauf testified that his family bought their property in 1996, choosing this location, in part, because of the water flowing through it. He said he very much values the diverted channel, which he calls Qahal Creek.

[112] Mr. Lindelauf farms 40 acres, including Barney Meadow. He keeps sheep, goats, cows and horses. He said that they rely on water from the diverted channel, although he acknowledges he does not have a water licence. He also said that when he bought his property, he knew that Robbins Creek was fully recorded. Mr. Lindelauf has had to dredge the diverted channel in 2002 and again in 2006. He stated that, in 2006, he obtained a section 9 approval to stabilize areas of the diverted channel.

[113] Ministry staff also inspected the area around Bogetti Meadow and northward to where the diverted channel meets the original channel. The diverted channel flows through Bogetti Meadow. This meadow is on land owned by the Mitchells (the eastern portion of the Meadow). The Mitchells bought their property (LS 16) in 1996. They testified that they keep horses on their property, and they liked the property because it had water for the horses.

[114] Mr. Edwards testified that, during his investigations, he learned that, in 2008, the Mitchells hired an excavator to clean out the diverted channel because it was flooding. The Mitchells claimed that the “creek” flowed through the meadow in this location when they bought the property in 1996, and they were just dredging the existing channel.

[115] The diverted channel, at this location, exits Bogetti Meadow while it is still on the Mitchell’s property, flows across LS 15 owned by the Fitzpatricks, and then it traverses to the property that Mr. Switzer has owned since 1997.


[116] The Fitzpatricks bought their property (LS 10 and 15 – the western portion of Bogetti Meadow) in 2007. The Fitzpatricks have both the diverted channel and the original channel flowing on their property. Ms. Fitzpatrick described the diverted channel as having the bigger flow. She said that it is not possible to cross the diverted channel during peak flows.

[117] Ms. Fitzpatrick stated that the diverted channel does not have trees; it is more pasture-like and has a deeper bed than the original channel, which Ms. Fitzpatrick called the Lower Creek. Ms. Fitzpatrick said that the neighbours told them that the diverted channel has been there since World War II. She said that an old homestead just above the diverted channel in the corner LS 15 supports this assumption.

[118] Mr. Switzer testified that he bought his property in 1997 for the lifestyle. He keeps horses on his property, and he said that he had to put a little footbridge across the “creek” to get to his barn, because of the increased volume in the channel he refers to as “Cowan tributary”.

[119] Cowan tributary is the portion of the diverted channel shown on the map as flowing north/northwest from about the “Lower Diversion ~ 2008”, through “Pond Feature 2” and up to where the diverted channel joins the original channel.

[120] Mr. Switzer also described a pond in the northern part of his property: Pond Feature 2 on the map. He is concerned that if Cowan tributary disappears, and if Pond Feature 2 is dewatered, he will lose his water source. He also stated that various species will be negatively impacted. Mr. Switzer asked Mr. Harrison to assess the pond’s habitat values.

[121] Mr. Bruce Harrison testified that he visited Pond Feature 2 in 2012 and 2014, at Mr. Switzer’s request. He said that he observed a healthy wetland ecosystem, which he called a local biodiversity hotspot. He observed waterfowl (Barrow’s golden eye and a bufflehead), and other species including young Western Toads in the creek, and adult Western Toads in the pond. In a report that Mr. Harrison prepared, he stated that the Western Toad is a species of both national and provincial interest. Nationally, it has been listed as a species of special concern by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) due to population declines, and provincially it has been blue-listed as a species of special concern or vulnerability. He also saw tracks from deer, water fowl and beaver or muskrat. Mr. Harrison said that if the wetland is removed, biodiversity will be reduced. If the pond becomes more of a meadow or even a grassland ecosystem, then the ducks and shore birds would leave, and there would be fewer insects. Mr. Harrison said that he did not investigate the source of Pond Feature 2; however, based on his experience, he speculated that the pond is at least a decade old.

[122] Mr. Giles and Mr. McFarlane studied the diverted channel from a recently excavated channel through Bogetti Meadow, and up through Mr. Switzer’s property to where the diverted channel reconnects with the original channel on Cowan Meadow. Mr. Giles referred to aerial photographs which evidenced that, by 2007, a substantial amount of flow was by-passing the PODs through the Cowan tributary.

[123] During their testimony, Mr. McFarlane and Mr. Giles referred to a detailed inspection of the entire diverted channel. They completed the inspection in the fall


of 2011. At that time, they noticed that channel incision was pronounced across Bogetti Meadow and in places through Cowan tributary.

[124] Mr. McFarlane and Mr. Giles stated that when the diverted channel was directed across Bogetti Meadow in 2008, the watershed drainage area of Cowan tributary was artificially increased by nearly ten-fold. Flow measurements taken in the spring of 2012 found that approximately 80% of the freshet flow in Robbins Creek had been diverted north through Bogetti meadow into the Cowan tributary. Mr. McFarlane and Mr. Giles also indicated that recent and pronounced erosion of the Cowan tributary stream banks, consistent with freshet flow, was evident.

[125] With respect to the concern that, after the upper diversion is removed, there may not be water in the diverted channel, Mr. McFarlane and Mr. Giles analyzed the watersheds in the area and concluded that there will still be groundwater going into Barney Meadow and Pond Feature 2 if the works authorized under the Approval proceed, and the upper diversion is removed. They conducted their analysis to address Mr. Lindelauf’s belief that the only water going into Barney Meadow is from the diverted channel. They determined that there is water entering Barney Meadow from the property to the east of Mr. Lindelauf, although they agree that it is uncertain whether this will be sufficient to moisten Barney Meadow or Bogetti Meadow.

[126] Regarding water for Pond Feature 2, Mr. Giles and Mr. McFarlane said that water will continue to feed into Pond Feature 2. They referred to their studies of the area and Mr. Giles’ interpretation of a 1948 aerial photo. That photo showed that there was no creek connecting Pond Feature 2 to Bogetti Meadow, but the pond appeared moist, suggesting another source of water feeding it, perhaps groundwater.

[127] The Appellants raised concerns that restoring water flow to the original channel will lead to flooding and increased sedimentation. They submit that the original channel is relatively small and full of vegetation, and lacks the capacity to carry the expected water flow. They point to evidence that the original channel flooded in 2008.

[128] Ms. Fitzpatrick testified that she was concerned about a significant volume of water coming through the original channel in spring, which will cause flooding. She argued that the Ministry lacks data to support their contention about the low risk of flooding.

[129] However, Mr. Giles and Mr. McFarlane are of the opinion that the original channel will be capable of supporting the increased flow. They referred to the physical features that they found in the original channel, including the floodplain and wide valley, which they submit is capable of handling the increased flow if the Approval is confirmed.

[130] They also relied on the computer modelling result provided by Mr. Ball, which calculated the stream channel capacity of two portions of the original channel: the upstream reach and the downstream reach. Mr. McFarlane and Mr. Giles provided Mr. Ball with field surveyed cross-sections and photographs of data locations related to both reaches for the analysis.


[131] Mr. Giles and Mr. McFarlane acknowledged that there is some potential for flooding at Bogetti Meadow, although any flooding will be less extensive than if the diverted channel is left unmaintained. They also said that, in any event, Bogetti Meadow needs flooding to remain a healthy, functioning meadow.

[132] The Appellants also contended that logging in the upper watershed of Robbins Creek was primarily responsible for the creation of the diverted channel, and the volume of water and sediment that it now carries. Mr. McFarlane and Mr. Giles noted, in their December 2012 report, that there had been extensive clear-cut harvesting in the upper part of the watershed between 1948 and 2012, and that most of the timber had been harvested by 2004. However, they disagreed with the Appellants’ submissions regarding the effect of logging on Robbins Creek. They acknowledged that logging can result in a higher volume of surface water flow, and an earlier and shorter freshet, because there are fewer or no trees to prolong snowmelt. However, they said that the worst “offender” from logging activities, in terms of causing increased surface water flows, is road construction during logging, of which there has been little in this watershed.

Evidence regarding the Ministry’s application for the Approval

[133] Mr. Oetter testified that as the Ministry’s investigation progressed, they realized that there were many unauthorized diversions flowing through different properties, and therefore, any proposed work on Robbins Creek could impact a number of property owners. In fact, early in the investigation, he had heard from Mr. Lindelauf, who was concerned about the Ministry’s investigation. Mr. Oetter said that, although section 9 applications do not typically involve public hearings, in this case he felt it would be important to engage the public.

[134] Because the upper diversion was on Crown land, Mr. Oetter felt that it was not fair or appropriate to expect anyone else to do the restoration. Therefore, the Ministry would apply for a section 9 approval and undertake the work.

[135] Additionally, because of his involvement with the investigation, Mr. Oetter felt he might be perceived as being biased if he was the decision-maker in this case, and he wanted to avoid that. Therefore, he asked Mr. Peter Lishman, the Ministry’s Director of Operations, to remove him as the statutory decision-maker in this case. Consequently, the Regional Manager took on that responsibility.

[136] Mr. Oetter signed the Ministry’s section 9 application, dated June 13, 2012. The application contains the following detailed description of the works to be performed:

The stream work involves redirecting an unauthorized diversion back to its original channel on a fluvial fan. All work will be conducted in the dry. Stream-bank protection where the restoration channel will be excavated, berming of an overflow stream channel above the diversion, removal of a 36” diameter culvert, and filling of the diversion channel for a length of approximately 10 m down-slope of the diversion will be required for the primary restoration site. A second site on the original channel will require minor stream-bank reconstruction, but this will be done in the dry and prior to any of the stream flow entering the original channel. A third site requires the


removal of a washed out culvert and recontouring of the approaches, which stream crossing is located on crown land approximately 2 km downstream of the primary [restoration] site. This work will be done in the dry. There is potentially a fourth site involving the installation of the culvert from the third site if it is found suitable. The fourth site is located approximately 1 km downstream of the primary [restoration] site on the original channel and on LS9, Sec. 27 - Tp 18 - R15, W6M [Jennifer Andersson’s property]. Robbins Creek normally runs dry by mid-July, and fish are not suspected to be present in any part of the stream in which work is proposed.

[137] Attached to the application is a map titled “Robbins Creek Upper Watershed”, a map titled “Robbins Creek Diversion” including where the “Proposed Restoration of Unauthorized Change” would be located, and a sketch of where the proposed works would be undertaken.

[138] Mr. Oetter explained that providing a sketch of the proposed work, rather than an engineer’s drawing, is the usual practice, because the Ministry generally prepares as-built drawings, rather than incurring the cost of detailed drawings before doing the work. Mr. Oetter said that during one of his visits to the area where the upper diversion is located, he met with an engineer who felt that the proposed work was feasible.

Evidence regarding the Approval

[139] Mr. Sommer, the Regional Manager, testified that, with respect to section 9 applications, he has delegated authority to make decisions as an Assistant Regional Water Manager, which means that his authority falls within the Water Act’s definition of a regional water manager. He gave an overview of the 400 to 500 types of decisions he has made under the Water Act. He also detailed the considerations that go into the decisions he makes.

[140] The Regional Manager said that he approached this file as an independent decision-maker who needed to be aware of conflicting interests at the outset. He tried to be as transparent and inclusive as possible when analyzing the issues and data.

[141] He testified that, in the late spring of 2012, Mr. Lishman contacted him about this file because Mr. Oetter did not want to make the decision, as there could be a perceived conflict of interest. Regional Manager explained that he did not report to Mr. Lishman, and he was not the supervisor of Mr. McFarlane, Mr. Giles, or Mr. Oetter.

[142] The Regional Manager further explained that he purposely did not talk to Mr. Oetter about the file, so as to maintain his independence. He also had no detailed information about the Ministry’s role until the public meeting that the Ministry held in June 2012. During that meeting, Mr. McFarlane explained the investigations that the Ministry staff had undertaken, the findings they made, and their recommendations. The Regional Manager noted that the meeting was well attended by interested parties. After that meeting, he asked Mr. McFarlane and Mr. Giles to give him a personal presentation of their investigation.


[143] The Regional Manager testified that he was committed to the public comment period that the Ministry established, and to considering all of the comments that were sent in. He wanted to ensure that licence holders and potentially affected parties had an opportunity to give their input. Mr. McFarlane gave him the package of comments, and a spreadsheet summarizing the comments. The Regional Manager said he reviewed all of the comments and used them to identify community issues.

[144] For example, the comments included questions about species at risk and fish in the existing diversions. The Regional Manager said that ecosystem staff from the Ministry, including Mr. Belliveau, reviewed the ecological concerns. The staff indicated that there was no evidence that the Spadefoot Toad would be affected by the Approval. As for fish, there could be impacts arising from the Approval, but not severe ones.

[145] The Regional Manager also talked to Mr. Coster, Mr. Flatt, and Mr. Hardaker, long-time residents of the area, to get some information from the community about what had happened in the past.

[146] The Regional Manager stated that some of the people who provided comments asserted that floods would occur when the proposed section 9 work was completed. However, the Regional Manager said that these concerns were not supported by any professional opinions. Moreover, he understands that meadows have rising and falling water levels, depending on the time of year. They are also likely to be moist during most of the year because of ground saturation.

[147] Additionally, the Regional Manager said that, if a file is difficult, he likes to conduct a site visit. Accordingly, in September 2012, the Regional Manager went with Mr. McFarlane and Mr. Giles to view the landscape. They stopped at one of the meadows, discussed the functionality of meadows, the water table, and how that meadow likely receives water from a spring.

[148] The three of them observed the conveyance ditch from Robbins Creek to Buse Creek, and discussed the intake and the work at the intake. They noted that there was very little water in the original channel. They also discussed the stream’s characteristics. Mr. McFarlane and Mr. Giles explained stream morphology, and how streams perform.

[149] From the upper diversion point, they walked down along the original channel for a distance, discussing its characteristics, and what issues might arise with a diversion back into the original channel. The Regional Manager said he felt that monitoring would be required to ensure proper functioning of the diversion into the original channel.

[150] The Regional Manager said that the three of them also walked to and through Barney Meadows, and discussed stream energy, cutting and undercutting of banks, and other features they observed. The Regional Manager said erosion was definitely visible, and erosion factors were important considerations in his decision. He also said that they observed evidence of ongoing dredging.

[151] At Bogetti Meadows, the Regional Manager observed surface water. They then followed the Cowan tributary. The Regional Manager said that they saw water on Mr. Switzer’s property coming from a spring on the edge of the property.


[152] The Regional Manager testified that he was aware of the issues regarding the Campbell and Jack licences, and the concerns of other downstream licence holders, such as those with rights on Little Disdero Lake. He did not pursue the Campbell/Jack licence issues because he decided that those issues did not pertain to the Ministry’s section 9 application.

[153] The Regional Manager said that he considered each and every facet of the decision, and the concerns raised in the comments that were received. These concerns included water tables, the continued existence of the meadows, species at risk, pond features that might no longer be served by water, riparian values, habitat issues, siltation downstream in areas like Little Disdero Lake, and whether the original channel would hold the volume of water expected to flow through it when the obstruction at the upper diversion was removed.

[154] The Regional Manager testified that he reviewed the studies and investigative information provided by Mr. McFarlane and Mr. Giles, heard about the technical work that went into them, and carefully considered their professional opinions. By December 19, 2012, he had Mr. McFarlane’s and Mr. Giles’ final report, including their assessment of options and risks. He also reviewed his authority under the Water Act with his legal counsel.

[155] In early 2013, the Regional Manager made his decision. He issued the Approval on January 7, 2013. In April 2013, he made another field trip to view the site again during freshet, as close to peak flow as possible. He noticed that the flow was consistent with modeling forecasts, and he was satisfied that the original channel would support extra flow.

[156] The Regional Manager said that he expects there will be a need for ongoing monitoring over a number of years, after the Approval is implemented. Monitoring would include site visits in the first and subsequent springs at pre-freshet, freshet and post-freshet, to check the flow and the installations.

DISCUSSION AND ANALYSIS

1. Whether the Approval should be reversed based on its merits.

a. The motive for the application and for the Approval, and the application of section 9 of the Water Act in the circumstances.

The Appellants’ Position

[157] The Appellants submit that the only reason for the application and the Approval was to benefit the Campbells and Dr. Jack, so that they are able to get water to their respective diversions and to use the water assigned under suspended licences. The Appellants argue that this is an improper motive, and therefore, the Approval should be overturned.

[158] The Appellants also argue that section 9 of the Water Act does not apply to the stream in question. They argue that for a stream to fit the statutory definition of a “stream” in section 1 of the Water Act, the watercourse must be natural. According to the Appellants, the diverted channel does not fit this definition.


The Responding Parties’ Position

[159] The Responding Parties’ submit that the reason for an application for an approval is irrelevant. The Water Act imposes no specific requirements on a decision-maker with respect to the purpose for a change in and about a stream.

[160] The Responding Parties also submit that the Approval is for works with respect to Robbins Creek, which is a “stream” as defined by the Water Act. The Approval is a decision to correct an unauthorized diversion, to return water to where it is best situated, back to the Robbins Creek channel where it existed prior to the diverted channel. The diverted channel flows from Robbins Creek, a licensed stream. Based on the historical record, the “diverted stream” previously had water flowing through, just not as much. Therefore, the Approval was validly issued under section 9 of the Water Act.

The Panel’s Findings

[161] Section 9 of the Water Act states:

9 (1) The comptroller, a regional water manager or an engineer may grant an approval in writing authorizing on the conditions he or she considers advisable

(a) a person to make changes in and about a stream,

(b) a minister of the Crown, either in right of Canada or of British Columbia, to make changes in and about a stream, or

(c) a municipality to make changes in and about a stream.

(2) A minister, municipality or other person may only make changes in and about a stream in accordance with an approval under this section or in accordance with the regulations or a licence or order under this Act.

[162] The Panel finds that the language in section 9 of the Water Act provides broad discretion to the statutory decision-maker. There is nothing in the wording of section 9 that restricts the decision-maker’s authority to any specific purpose, other than that the approval is “to make changes in and about a stream.” In general, it is a principle of administrative law that a statutory decision-maker must exercise their discretion in a manner that is consistent with the purposes and objectives of the statutory scheme. In fact, a review of the many Board decisions regarding section 9 approvals demonstrates that such approvals are issued for many reasons that serve the purposes and objectives of the Water Act. For example, see Wood v. British Columbia (Ministry of Environment), [2009] BCEA No. 4 (EAB) [“Wood”], at paras. 41, 42, 49, 50. The Panel finds that, if the exercise of discretion is consistent with the enabling legislation, the issue becomes whether the Regional Manager properly considered the appropriate and relevant facts when he issued the Approval.

[163] The Panel finds that the Appellants’ arguments that section 9 does not apply in the circumstances are unclear and not well supported. The Appellants seem to be arguing that if a watercourse is the result of a man-made diversion, then the


watercourse is not a “stream” as defined under the Water Act, and therefore, changes may not be made to the watercourse under the provisions of section 9.

[164] Section 9 authorizations are for “changes in and about a stream”. Section 1 of the Water Act defines “stream” to include a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, creek, spring, ravine, swamp and gulch. “Stream channel” is defined in section 1 of the Water Act to mean the bed of a stream and the banks of a stream, whether above or below the natural boundary and whether usually containing water or not, including all side channels.

[165] The Approval authorizes the Ministry to make changes in and about Robbins Creek, and specifically, to “redirect the surface flow of Robbins Creek back into its original channel”. Based on the evidence submitted in this hearing, and particularly the December 2012 report from Mr. Giles and Mr. McFarlane, the channel of Robbins Creek where the Ministry intends to redirect flow clearly meets the statutory definition of “stream”. In addition to the physical characteristics of that area, such as a floodplain and wide valley, there is evidence of historic flow through that channel.

[166] Moreover, the Panel finds that the Board’s reasoning in Wood at para. 58, is applicable to the present case, in that the works authorized under the Approval are “changes in and about a stream” that “involve substituting one section of a stream channel for another.” Specifically, in the present case, the Approval involves substituting the original channel for the diverted channel. The Panel finds that it does not matter that the Approval affects that flow in the diverted channel, and the diverted channel is man-made. It would lead to absurd results if an approval could not be issued under section 9 to restore the flow of water from a stream that has been diverted without authorization to a man-made channel.

[167] For these reasons, the Panel rejects this ground for the appeals.

b. Whether the Appellants have been prejudiced by delays by the Ministry in dealing with Robbins Creek issues.


[168] The Appellants argue that the Ministry delayed investigating and resolving issues in the Robbins Creek watershed, and this delay has prejudiced them. They maintain that, had the Ministry identified and resolved those issues when complaints first surfaced, they would not have bought their properties.

[169] They argue that the common law principle of laches applies to their circumstances. They also maintain that the Limitation Act applies. The Appellants assert that, because of the inequities of the circumstances, the passage of time prevents the Ministry from applying for a section 9 approval.


[170] The Responding Parties refer to the evidence from Ministry staff who testified that compliance matters under the Water Act are complaint driven, as the Ministry does not have the resources to monitor all creeks and watersheds. Also, watersheds are complex systems, and complaints can require significant investigations.


[171] The Responding Parties also submit that complaints about lack of water and siltation by Robbins Creek licence holders were investigated over time. However, it was not until Ministry staff, including Mr. Giles and Mr. McFarlane, started their investigations that the extent and the impact of the diversions, and especially the diverted channel, became apparent. Those investigations included field studies, research through historical records, aerial photos, meetings with various land owners, and a public meeting.

[172] The Responding Parties submit that none of the Appellants have water licences pursuant to the Water Act, and all have sources of water in addition to the diverted channel. Therefore, they will not be prejudiced by the Approval. Also, the Water Act has no limitation period for section 9 applications or approvals.

[173] The Responding Parties note that section 2(2) of the Water Act specifically provides that no right to divert or use water can be gained by prescription, and therefore, there is no such right that can be prejudiced by time passing before remedial work is undertaken.

[174] The Responding Parties submit that the Limitation Act does not apply to section 9 approvals. That Act applies as a defence to an “action”, which is a proceeding in court and any exercise of a self-help remedy commenced by a party. The Responding Parties submit that a self-help remedy includes a statutory collection procedure, such as a right to collect a debt. The Responding Parties argue that the Approval is nothing like an action or an alternate mechanism to enforce a right or remedy against a private party.

[175] Regarding the principle of laches, the Responding Parties argue that the principle is an equitable remedy that courts may apply at common law. In contrast, the Appellants do not hold rights to use water from the diverted channel, and the works under the Approval are a remedy to remove the unauthorized diversions that were constructed by landowners in breach of the Water Act. As such, the Approval is a statutory remedy; it is not equitable in nature.


[176] The Panel agrees with the Responding Parties that the Limitation Act has no application to section 9 approvals under the Water Act. Such approvals are authorizations issued by statutory decision-makers, and are not court proceedings or self-help remedies which substitute for court actions. Moreover, there is no indication in the Water Act or the Limitation Act that the limitation periods in the Limitation Act are intended to apply to decisions made under the Water Act, especially in regard to decisions that have the effect of remedying or addressing unauthorized diversions constructed in breach of the Water Act. Similarly, the Panel finds that the doctrine of laches has no application in the present case, as it is an equitable remedy that may be applied by the courts to deny relief to a party that has unreasonably delayed asserting a claim. In the present case, the Ministry is not asserting a civil claim in court; rather, it sought the Approval to remedy the problems arising from illegal water diversions that were constructed by landowners in contravention of the Water Act. Moreover, the Board has no jurisdiction to order equitable remedies. Such remedies are within the jurisdiction of courts established under section 96 of the Constitution Act, 1867, such as the Supreme Court of British Columbia.


[177] The Panel also finds that the Water Act provides no time limitation for section 9 applications or approvals. Moreover, the Panel finds that the Ministry witnesses reasonably explained the history of problems and investigations in the Robbins Creek watershed, and why the thorough investigation of the section 9 application took time to complete.

[178] In addition, as the Panel discusses below, the Appellants failed to establish that they have been prejudiced by what they consider to be the Ministry’s delay. It was their responsibility when they bought their properties to fully research and understand the water laws of this Province, and to ascertain whether they had any legal right in relation to surface water flowing through or adjacent to their property.

c. The Appellants’ claims to water from the diverted channel, ponds and meadows on their properties

The Lindelaufs’ Position

[179] Fundamentally, the Lindelaufs’ position is that they have a property right to water as riparian owners of land. They argue that those rights arise from Crown grants of land, and common law rights, which predate Confederation, Railway Belt legislation, and provincial legislation governing the ownership and use of water in the province. They submit that the Province has no authority to extinguish those rights through the Water Act. The constitutional issues raised by the Appellants are addressed under Issue 2. The Panel has rejected the Appellants’ constitutional arguments.

[180] The Lindelaufs submitted a copy of a Crown grant that includes their land, which they say preserves their rights to water as riparian owners. That grant, issued in 1920 to a predecessor in title, specifically excludes any exclusive or other right, title or privilege in, to or in respect of any water course, or source of water supply, or any stream, river, lake, creek, spring, ravine or gulch or water power within or bordering on or passing through the said lands or the lands forming the beds or shores thereof, saving only the right of the grantee, his heirs or assigns as riparian proprietors to the use of such waters for domestic purposes. They submit that the Crown grant provided for the use of water for domestic purposes, which they say includes household, garden, livestock, fire protection and sanitary uses.

[181] The Lindelaufs further submit that this grant, and their common law rights as riparian owners, mean that they have the right to the flow of water onto their land. They argue that the flow available when they purchased their land is the flow that they are entitled to make reasonable use of, and that they have the right to use the water on their land for domestic purposes ‘forever’. Those ‘forever’ riparian rights include the right to the quality and quantity of water as it flows onto their land, and they do not need a water licence to use that water.

[182] The Lindelaufs argue that the Approval will result in removing the entire flow of water from what they call “Qahal Creek” (i.e., the diverted channel). As a result, no water will be available for their domestic uses. They argue that no other creeks flow into their meadows. If the flow of water is diverted, the diverted channel will cease to exist, and the growth of grass will severely diminish in the meadow, affecting their ability to maintain the farm as they have done for the past 19 years.


[183] The Lindelaufs also argue that, under their “riparian right”, water cannot be transferred out of the Robbins Creek watershed. They further submit that the Water Act does not permit water to be transferred out of that watershed.

[184] The Lindelaufs cited several texts and judicial decisions to support their position. Generally, the primary principle they rely on is that legislation should not be taken to limit common law rights or otherwise alter the common law.

[185] The Lindelaufs argue that, because there is evidence of water on their property, they are entitled to keep that water.

Ms. Fitzpatrick’s and Mr. Switzer’s Position

[186] Ms. Fitzpatrick traces her property title to part of a Crown grant made in 1920. Mr. Switzer’s chain of property title goes back to a Crown grant made in 1928. Those grants contain basically the same language as the grant that the Lindelaufs rely on.

[187] These Appellants submit that the Crown grants necessarily imply a right to the domestic use of water, because the grants did not say otherwise. They argue that the rights to the non-exclusive use of water on what is now their respective properties were conveyed to the original grantee, and then to each subsequent land owner.

[188] These Appellants argue that domestic use is for water “within or bordering on or passing through” their lands, and therefore, the current path or flow of the stream cannot be removed without breaching the covenant in the Crown grant. They submit that the Water Act has not taken away those rights.


[189] The Responding Parties submit that the Appellants only provided evidence of Crown grants of land, and the Appellants provided no evidence of the recording of any claims, licences, or other approvals granting them the water rights they claim to have. They also submit that the diversions in Robbins Creek, including the diverted channel, occurred after all three of Crown grants were issued.

[190] The Responding Parties argue that the Crown grants do not guarantee access to a specified amount of water, or that a particular volume of water will be available for domestic use. Therefore, the Approval does not violate any right granted in the Crown grants. Additionally, the title holders who received those Crown grants only had access to pre-diversion volumes of water from Robbins Creek.

[191] Moreover, the Responding Parties submit that the Province administered water rights in British Columbia when the Crown grants were issued, and therefore, the grants could not have given water rights that were not subject to the provincial water legislation. They submit that the Water Act, 1914, S.B.C. 1914, c. 81, required that anyone claiming the right to divert or the right to the exclusive use of water as a riparian owner must file a claim by June 1, 1916, and no such riparian rights existed after that date. Given that the Crown grants in the present case were issued after that date, the original title holders of the Appellants’ land held no such riparian rights, and the Appellants could not have acquired such riparian rights. In support of those submissions, the Responding Parties refer to the Privy


Council’s decision in Cook v. Vancouver [1914] A.C. 1077 (JCPC), [“Cook v. Vancouver”].

[192] The Responding Parties submit that the water diverted from Robbins Creek, flowing in its current path (i.e., the diverted channel), did not exist at the time of the Crown grants. Therefore, if the Crown grants granted the original title holders domestic use of water on the respective properties, those grants could not have been for domestic use of any particular volume of water flowing in the diverted channel today, because the water did not flow in that path with that volume when the Crown grants were issued. Consequently, if the Appellants have non-licensed rights to the domestic use of water flowing on their respective properties based on the water that was flowing at the time of the Crown grants, the Approval will not change that.

[193] Further, the Responding Parties submit that the evidence in this appeal demonstrates that some water flowed on the Appellants’ respective properties, before the diverted channel was built. However, when the diverted channel is removed, there will still be water available to the Appellants from various sources.

[194] The Responding Parties argue that the Appellants are essentially seeking a determination that they have a lawful right to domestic use of water from the diverted channel flowing through their property. The Responding Parties submit that a determination as to whether the Water Act limits, or does not limit, the Appellants’ domestic use of water is not an issue that is properly before the Board. If the Appellants want to apply for a water licence, or are using water for domestic purposes within the Province’s regulatory framework, those considerations are distinct from the Approval under appeal.


[195] All of the Appellants argue that they are entitled to: the use of water from the diverted channel currently flowing through their land, for domestic purposes; the continued flow of the water in the diverted channel; and, maintain the diverted channel flowing through their properties, as it was when they bought their properties. They base their claim for such rights on their assertion of common law rights as riparian land owners, on their current land titles which they trace back to Crown grants issued in the 1920s, and/or on their use of the water on their respective properties since they purchased their land.

[196] The Panel has addressed the Appellants’ submissions that, based on the Crown grants that included the Appellants’ land, they are entitled to continue to use the same flow, the same access to water, and the same diverted channel watercourse, that existed when they purchased their properties. Given the Panel’s findings in that regard, the Panel finds that it is unnecessary, in deciding these appeals, to decide whether the Appellants have riparian rights to use the surface water on their properties, or that they are entitled to the domestic use of such water, regardless of the source of such water. In any event, the Panel has found under Issue 2 that, according to judicial decisions, the Water Act and its legislative predecessors abrogated common law rights in relation to water use that riparian owners had historically enjoyed.


[197] The problem with the Appellants’ arguments is that they assume that whatever water was flowing in the diverted channel when they bought their respective properties, will continue to be there, in the same place and in the same amount, in the future. Even if the Crown grants conveyed a right to use whatever unrecorded surface water was flowing on the subject properties at the time when the grants were issued (which the Panel has not found), nothing in the Crown grants indicates the locations or amounts of water flowing at that time. As such, the Crown grants provided no guarantee that the landowner would be able to use a specific amount of water from any particular water source.

[198] In any event, given that the Crown grants were issued in the 1920’s, which is many decades before the diverted channel began to be built in the 1960’s, the Crown grants could not have provided the original landowner, or subsequent land title holders, with a right to use water flowing in the diverted channel. Furthermore (and regardless of the Appellants’ constitutional arguments, which the Panel has rejected under Issue 2), in Cook v. Vancouver, the Privy Council held that the Water Privileges Act, 1892, took away the common law right of riparian owners to the undiminished flow of water past their property, and that rights to use water on a continuing basis could only be acquired under the relevant legislation.

[199] Moreover, the evidence presented during the hearing indicates that there are natural variations in the water flow in the Robbins Creek watershed, due to variations in snow pack, the timing of freshet, and changes in weather patterns that have impacted, and will continue to impact, flows through the watershed. Also, the evidence establishes that watercourses in the Robbins Creek watershed have been situated in different locations over the decades, sometimes due to natural causes and sometimes due to human intervention.

[200] Even property owners with licences or approvals authorizing water use under the Water Act do not have a right to a guaranteed quantity of water. They will not necessarily be able to use the maximum amount of water allowed under those licences or approvals, from season to season or from year to year, depending on the amount of water flowing in the water source and the priority of their licence relative to other licences on that source. There was evidence of how, at times the Robbins Creek licence holders relying on the Little Disdero Lakes reservoir have had to adjust their water usage because of fluctuating water availability.

[201] In any event, none of the Appellants provided conclusive evidence that they would not have access to water if the Approval is implemented. Indeed, the Panel finds that the evidence at the hearing established that there are other sources of water on their respective properties that they can, and do, use, including natural springs and/or groundwater wells.

[202] Also, none of the Appellants established with evidence, or even stated, how much surface water they need for domestic purposes. Therefore, the Panel is unable to assess what, if any, negative impacts altering the diverted channel will have on the Appellants’ ability to use surface water flowing on their property.

[203] It is clear to the Panel that the Appellants did not research their rights or responsibilities in regard to surface water when they bought their properties. Mr. Lindelauf, Ms. Fitzpatrick, and Mr. Switzer basically said that they assumed that, if


a stream was on their property, it would always be there, and that they could observe it and/or use it for domestic purposes whenever they liked.

[204] The Panel reminds the Appellants that any person buying rural property must do their research regarding water rights and water availability, just as they must investigate and confirm where the property boundaries are.

d. Potential negative impacts of the Approval on the Appellants

The Appellants’ Positions

[205] The Appellants submit that the Approval does not take into account negative environmental, aesthetic and economic impacts.

[206] The Lindelaufs argue that the Approval will irreparably damage them, and there is no adequate compensation to make up for the loss. They say that the Approval will result in removing all of the water from the diverted channel, and then they will have no water for their domestic uses, including household, garden, livestock, fire protection and sanitary uses. Also, if the flow of water is diverted, Qahal Creek (i.e., the diverted channel flowing through their property) will cease to exist. The growth of grass will severely diminish in the meadow, affecting their ability to maintain the farm as they have done for the past 19 years. They submit that no other creeks flow into their meadows.

[207] The Lindelaufs also maintain that if there is no flow in the diverted channel, they will no longer have the aesthetic benefit of Qahal Creek. In addition, they submit that the fish that are currently found there will die.

[208] Ms. Fitzpatrick submits that she bought her property because there were two creeks running through it with a pastoral meadow. She considers her property to be valuable because it is creek front property. If the works under the Approval are completed, her property will cease to be that. Her position is that, instead of the current aesthetic value provided by the diverted channel, she will have a dry gulch which will decrease her land value.

[209] Ms. Fitzpatrick also argues that her property will be damaged by flooding and/or bank instability as a result of increased flow and/or siltation caused by diverting water into the original Robbins Creek channel. Ms. Fitzpatrick submits that one of her meadows will dry out as a result of the proposed works. She has relied on the meadows as a source for lease income.

[210] Mr. Switzer submits that he also will lose the ability to access water from the diverted channel, and the pond on his property will be dewatered. He stated that he bought his property partially because of the water features there. He argues that the dewatering of his pond will have negative environmental impacts, including destroying important habitat for Western Toads which have been identified in the diverted channel. Eliminating the diverted channel will threaten these populations.

[211] To support their submissions, the Appellants cite section 38(2) of the Water Regulation, which states:

(2) A change in and about a stream must be designed, constructed and maintained in such a manner that the change does not pose a significant danger to life, property or the environment.


[212] They also argue that there is no provision in the Approval for damages, which they maintain will result from the Approval.


[213] The Responding Parties submit that aesthetic impacts are not a consideration for the Regional Manager when issuing an approval under section 9 of the Water Act.

[214] The Responding Parties also submit that evidence in the hearing confirms that there are other sources of water on the Appellants’ properties, besides the diverted channel. For example, the evidence showed that surface water was present on Mr. Switzer’s property from the early 1900’s, and that this water comes from multiple sources, including a spring. It is likely that the spring provides water to the pond he is concerned about.

[215] They also submit that, historically, there was water in Barney Meadow and Bogetti Meadow. As well, meadows naturally function like sponges, drawing in water and then releasing it over time.

[216] The Responding Parties refer to the evidence of the Ministry’s professionals, who identified serious erosion and sedimentation issues with the current status of the unauthorized diversions. Their scientific evidence indicates that returning the flow to the original/historic Robbins Creek channel is the only way to adequately address the current problems regarding erosion, sedimentation, and siltation.

[217] Regarding potential ecological impacts, the Responding Parties refer to the evidence from the Ministry that the historic channel of Robbins Creek has superior habitat values. They also submit that there is no evidence that Mr. Switzer’s pond or any watercourse will be dewatered. The evidence instead demonstrates otherwise.

[218] In addition, the Responding Parties submit that the Appellants may seek remedies, including under section 21 the Water Act, if the Approval causes damage to their property.


[219] The Water Act deals primarily with priority of water use and allocation of water in the Province. However, the Board has previously held that, under the Water Act, a decision-maker has the jurisdiction to consider the impacts of a water licence or proposed works on water resources, and the aquatic and riparian habitat values of the affected area. For example, see Bolton v. British Columbia (Ministry of Environment, Land and Parks), [2001] BCEA No.18 (EAB).

[220] The Appellants submit that the Regional Manager should have considered aesthetic and environmental impacts/damages to their properties, and to the water features on their properties, when making his decision. However, the Appellants provided only general assertions about the negative impacts of the Approval on aesthetics and environmental features. The Panel finds that their assertions about what “may” happen are too vague and speculative.

[221] In addition, the Panel finds that there is no indication in the Water Act that the preservation of aesthetic values is a purpose of the Act, or more specifically, that this is a relevant consideration for section 9 approvals.


[222] The Panel finds the Ministry’s evidence and assessment of the impacts from the proposed works is more persuasive than the evidence provided by the Appellants. The Appellants did not provide evidence that convincingly undermined the Ministry’s investigations, or the findings in the report prepared by Mr. Giles and Mr. MacFarlane. The information supporting the Ministry’s application was based on a careful consideration of field studies, science-based modelling, historical studies and analysis, and the considerable knowledge and experience of the Ministry’s professional staff.

[223] Mr. Lindelauf asserts that his ability to continue to use his property will be impacted by the Approval. However, the Panel finds that he failed to provide convincing evidence that he will not have meadows, will not have sources of water, or will be unable to raise livestock, if the Approval is implemented. While he disputed the Responding Parties’ evidence, the Panel finds that Mr. Lindelauf’s evidence did not undermine their evidence.

[224] Similarly, neither Ms. Fitzpatrick nor Mr. Switzer provided convincing evidence that the adverse impacts they described are likely to occur. Mr. Switzer maintains that dewatering his pond will destroy the habitat values of that pond and negatively impact the Western Toads. However, the Panel finds that Mr. Switzer did not establish that his pond will be dewatered, or that the wetland habitat values associated with it will be greatly diminished. The evidence from the Ministry’s ecosystem staff and other Ministry reports indicates otherwise, and that the pond is fed by a natural spring, and the Panel agrees.

[225] In addition, the Panel finds that Ms. Fitzpatrick did not provide evidence to support her concerns that parts of her property bordering the channel where the Ministry wants to return flow, will be flooded. She did not provide evidence that that is likely to occur. In contrast, the Ministry’s evidence establishes that the original channel, along with the meadows along the original channel, can likely accommodate the additional flow once the Approval is implemented. Moreover, if flooding occurred, she could apply for a section 9 application to remedy any flooding issues.

[226] Regarding the provisions of section 38(2) of the Water Regulation, the Panel notes that the Approval lists specific design and construction requirements. Additionally, section 38(2) imposes obligations to maintain the changes in such a manner that the changes do not pose a significant danger to life, property, or the environment. The Regional Manager testified that he intends to monitor the impacts of the Approval after the work is done.

[227] The Panel notes that the threshold in section 38(2) is “significant danger to life, property or the environment”. The Appellants have not provided evidence of such danger; rather, they have only speculated about what might happen.

[228] The Panel also notes that, if damage to property arises from the implementation of the Approval, such as from flooding, the Appellants may seek remedies, including under section 21 the Water Act. That section provides that:

21 (1) The following persons must exercise reasonable care to avoid damaging land, works, trees or other property, and must make full compensation to


the owners for damage or loss resulting from construction, maintenance, use, operation or failure of the works:

(a) an applicant;

(b) a licensee;

(c) a holder of an approval;

(d) a person who, in accordance with the regulations or an order, makes changes in and about a stream or diverts or uses water.

[underlining added]

[229] Consistent with section 21(1) of the Water Act, clause H of the Approval requires the Approval holder to “take reasonable care to avoid damaging land, works, trees or other property, and shall make full compensation to the owners for any damage or loss resulting from the exercise of the rights granted with this approval.”

[230] For all of these reasons, the Panel finds that the Appellants have failed to establish that the Approval will result in adverse effects on their rights or interests that would warrant reversing the Approval.

e. Should the Ministry have considered alternatives

[231] Despite the fact that the December 2012 report prepared by Mr. Giles and Mr. McFarlane proposed three options, including leaving the diversions in place, the Appellants submit that the Regional Manager should have considered alternatives before issuing the Approval. In their closing submissions, they suggested alternatives. However, the Panel notes that, based on the totality of their submissions, the Appellants’ preferred outcome is to maintain the status quo.

The Panel’s findings

[232] The Panel finds that the information that the Regional Manager considered included three different options, one of which was to maintain the status quo. Specifically, the December 2012 report prepared by Mr. Giles and Mr. McFarlane, starting at page 11, proposed three options, and set out the risks and benefits associated with those options. The Panel finds that, in considering those options, the Regional Manager also took into account the feedback and comments that were received from the public, including licensees and affected property owners.

[233] The Regional Manager explained how he carefully considered not only the Ministry’s findings, but also all of the concerns submitted from impacted parties. Based on the totality of the evidence, the Panel finds that the Approval provides a balanced and appropriate solution to the problems arising from the unauthorized diversions, and the Regional Manager took into account appropriate and relevant factors. The Regional Manager considered several options, and he selected the option that he considered to provide the best solution to the problems arising from the unauthorized diversions.

f. Lack of reasons for the Approval



[234] The Appellants submit that reasons for a decision are fundamental to natural justice. They submit that the Regional Manager provided no reasons for the Approval, and therefore, the Approval must fail.


[235] The Responding Parties submit that there is no statutory requirement in the Water Act for a decision-maker to provide written reasons for a decision. Also, in this case, the Appellants did not provide evidence that they hold any authorized rights that will be affected by the Approval. Further, none of the approved works will be undertaken on any of the Appellants’ land.

[236] The Responding Parties also submit that the Regional Manager testified at the hearing and explained why he issued the Approval. He testified about what information he reviewed, what investigative steps he took, and how he arrived at his decision. His evidence at the hearing cures any defect with respect the sufficiency of reasons.


[237] To the extent that the lack of reasons may be a procedural defect in the Approval, the Panel finds that the hearing de novo in these appeals cures any such defect. See Demcak, at page 24.

[238] During the appeal hearing, the Regional Manager testified at length about how he approached the application, what information he relied on, what separate inquiries and investigations he undertook (including considering objections), and especially why he issued the Approval. Additionally, all parties had a full opportunity to call witnesses and present evidence, including new evidence that was not before the Regional Manager, and to cross examine the other parties’ witnesses. They also had the opportunity to make oral submissions with respect to issues of law, fact and jurisdiction.

[239] The Panel finds, therefore, that any errors that may have been made in the Regional Manager’s decision-making process have been remedied by the appeal hearing before the Board, which was conducted as a new hearing of the matter.

[240] There was no breach of natural justice on this basis.

The Panel’s conclusion on Issue 1

[241] Having considered all of the evidence and submissions, the Panel finds that, when he issued the Approval, the Regional Manager took into account appropriate and relevant factors. He selected the option that he considered would provide the best solution to the problems arising from the unauthorized diversions on Robbins Creek. Based on the evidence presented during the appeal hearing, the Panel agrees that the Regional Manager selected the most appropriate solution.

[242] Additionally, Mr. McFarlane, Mr. Giles and the Regional Manager all gave evidence that ongoing monitoring and maintenance would occur. The Regional Manager confirmed that he intended to collect data. If that data indicated a concern with the works or their effects, he would continue to assess and determine whether further action was required.


[243] The Panel agrees that ongoing monitoring should occur. Accordingly, the Panel orders that the Regional Manager amend the Approval by setting a schedule for monitoring the effects of the works, as the Regional Manager deems appropriate.

2. Whether the Approval is invalid or should be reversed based on the Appellants’ constitutional arguments.

[244] On April 24, 2014, Ms. Fitzpatrick and Mr. Switzer served a Notice of Constitutional Question pursuant to section 8(2)(a) of the Constitutional Question Act. These Appellants stated that they were applying to the Board for one or more of the following declarations or orders:

1. That the Approval and any declaration or order of the Board in this appeal, the effect of which is to revoke a right granted to the Appellants by deed from the Dominion of Canada, is of no force or effect.

2. That it is beyond the constitutional authority of the legislature of British Columbia to pass legislation which revokes a right granted to the first title holder by Crown grant and then transferred to each successive title holder.

3. That sections 2 and 9 of the Water Act cannot be applied in the Railway Belt in contravention of the subject Crown grant.

4. That the provisions of section 9(1)(b) of the Water Act are beyond the legislative competence of the Legislature of British Columbia so far as they permit the Ministry to make application to itself because, in every such application, there is institutional bias which cannot be prevented by any means.

[245] These two Appellants also submitted a Notice of Constitutional Question dated May 13, 2014, which set out their arguments in support of their April 24, 2014 request for certain declarations or orders. In their submissions, these Appellants also raised a further constitutional issue that was not listed in their Notice of Constitutional Question:

5. The Regional Manager’s decision-making process was unfair and biased, contrary to the Appellants’ rights under the Charter of Rights.

[246] Although it appears that proper notice of this constitutional issue was not provided, the Responding Parties addressed the bias arguments in their submissions on the constitutional issues.

[247] On January 26, 2015, the Lindelaufs submitted a Notice of Constitutional Question pursuant to section 8(2)(a) of the Constitutional Question Act. This notice had both requests for declarations or orders as well as the Lindelaufs’ arguments. The Panel has summarized the arguments in the discussion below. The Panel has also summarized the Lindelaufs’ requests for one or more declarations or orders as follows:

1. The vesting of water only in the government is unconstitutional. The Water Act, being the vehicle by which this occurs, is therefore unconstitutional.

2. The Water Act, as an act that covers all water use in British Columbia, is unconstitutional because it refuses to recognize other rights to water that are


constitutionally established; that is, the common law rights, and rights confirmed explicitly or implicitly by grant of the King.

3. The transfer of water out of the watershed, as proposed by the Approval, is unconstitutional because it violates the riparian right of landowners in the Robbins Creek watershed. The riparian right says that the water must be used in the watershed and may not be transferred out of it.

4. The Appellants have the riparian right to have water flow down to their property, and the Appellants have the riparian right to quality and quantity of water as it flows to them.

5. The Government has no right to claim ownership of land under the watercourse, because ownership has always belonged to the riparian owner.

6. The Water Act discriminates against riparian owners who are not licensees, even though they have riparian rights. This discrimination is unconstitutional.

7. The vesting of all water in the Crown and the property of water in the Crown as violation of publici juris [public right], is a violation of the constitutional rights of British Columbian Canadians who are riparian owners. The property right of water belongs to the riparian owner when he exercises his right to reasonably use the water.

[248] All parties provided additional written arguments regarding the constitutional questions.

[249] The Responding Parties submit that, on the narrow issue before this Board and on the facts, the constitutional questions raised by the Appellants need not be addressed. They further argue that constitutional questions should only be addressed by tribunals when necessary. Therefore, in this case, the constitutionality of the Approval and section 9 of the Water Act should be the subject of constitutional scrutiny only if the Regional Manager’s decision is not set aside or modified. Further, any constitutional analysis must be undertaken with reference to the particular facts of this case.

[250] The Panel agrees that any constitutional analysis in this case must be undertaken within the framework of the facts of this case, as established by the evidence that the Panel finds to be relevant. In the discussions and analysis above, the Panel reviewed the issues and facts it considered germaine to the primary question in these appeals: whether the Approval issued by the Regional Manager should be reversed on its merits. As discussed under Issue 1 of this decision, the Panel found that the Appellants provided insufficient evidence to support their request that the Approval be reversed on its merits. In particular, the Panel has already found that the Appellants have not established that the works proposed under the Approval are likely to negatively impact their properties. In addition, the Panel finds that the Appellants have not established that the Approval would allow water to be taken out of the watershed, and that therefore, the Approval was unconstitutional. There is no evidence that the Approval will remove water from the Robbins Creek watershed. Consequently, the Panel need not address Mr. Lindelauf’s constitutional issue 3, as listed above.

[251] With respect to the “constitutional questions” that rely on the Crown grants, the Panel has already found that even if the original Crown grants conveyed a right to use whatever unrecorded surface water was flowing on the subject properties at


the time when the grants were issued (which the Panel has not found), the Crown grants provided no guarantee that the landowner would be able to use a specific amount of water from any particular source on the property. Further, the grants were issued after provincial legislation had abrogated common law riparian rights that existed historically. Moreover, given that the Crown grants were issued before the diverted channel began to be built, the Crown grants could not have provided the original landowner, or subsequent land title holders, with a right to use water flowing in the diverted channel. Consequently, the Panel need not address constitutional issues 1 and 3 that were raised by Ms. Fitzpatrick and Mr. Switzer.

[252] In the following discussion, the Panel has summarized the parties’ positions only as they relate to the remaining constitutional issues that do not fail for the reasons stated above.

a. Provincial authority over water


[253] The Lindelaufs argue that the ability to govern water rights in British Columbia is not within the legislative competence of the Province. They submit that the Water Act does not recognize rights to water that existed at common law.

[254] Mr. Fitzpatrick acknowledges that the Province has administration of water, but he argues that the Provincial legislature is not competent to revoke a water right which Canada was authorized to grant by deed from the (then) King.


[255] The Responding Parties’ submit that the ability to govern water rights in British Columbia is in the legislative competence of the Province. The Approval was made pursuant to properly enacted provincial legislation. They further submit that common law property rights are subject to legislated limits, and it is well established that the property right in water and the right to use water is vested in the provincial Crown by virtue of the Water Act.

[256] In support of those submissions, the Responding Parties refer to several judicial decisions, as well as historic legislation that preceded the current Water Act.


[257] The Panel has noted that this Board does not have the authority to declare the Water Act to be unconstitutional. However, the Panel has briefly addressed the legislative history of water law in the Province, and the sections of the Water Act which articulate the Province’s authority over water.

[258] The basis for the Province’s jurisdiction to legislate its governance over water is the Constitution Act, 1867, and specifically sections 92(5), (10), (13) and 92A. Those sections of the Constitution Act, 1867, provide the provinces with exclusive legislative powers over certain matters, including property and civil rights in the Province. Those powers have been interpreted by the courts to include legislative authority over water rights in the Province. For example, the BC Court of Appeal held as follows in Bryan’s Transfer Ltd. v. Trail (City), 2010 BCCA 531, at para. 26:

… at common law riparian land owners enjoyed certain rights: “(a) the use of water for general purposes, such as bathing, domestic use, etc.,


(b) ‘wharfout’ to navigability, (c) access to navigate waters, and (d) accretions”: Di Castri, Registration of Title to Land, looseleaf (Toronto, Carswell, 1987) at 7-2. There is no dispute that it is within the legislative competence of the Province to modify, alter or abolish common law property rights. Thus, certain riparian rights, such as the use of water, have been abrogated by statute: Water Act, R.S.B.C. 1996, c. 483. Section 2 states…

[underlining added]

[259] The Province’s history in enacting water legislation started in the 19th century and includes the Water Privileges Act, S.B.C. 1892, c. 47, in which section 2 established that the right to use water in a stream is vested in the Provincial Crown. The Province subsequently enacted a series of Water Acts and amendments to those Acts, including legislation in 1909, 1916, and 1925, all of which added to and further clarified Provincial jurisdiction over water in the Province.

[260] Section 2(1) of the present Water Act provides the current articulation of the Province’s jurisdiction over water. Section 2 of that Act states that the property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the government, except only in so far as private rights have been established under licences issued or approvals given under this or a former Act.

[261] The Panel finds that this language is clear and unambiguous – the property and right to use water in the Province is vested in the Provincial Government. If a person wants to divert or use water, that person must apply for the right to do so under the applicable sections of the Water Act or fall within some exception in the Act. Riparian owners have no constitutional right to the use or ownership of water in the Province, and the common law rights that riparian owners enjoyed historically, such as the right to use water for domestic purposes, have been abrogated by the Water Act and its legislative predecessors.

[262] Further, this legislation is applicable to the Approval and to these appeals. The Panel has already discussed how the provisions of section 9 and certain definitions apply to the circumstances of this case.

[263] For these reasons, the Panel rejects constitutional issue 2 that was raised by Ms. Fitzpatrick and Mr. Switzer, and constitutional issues 1, 2, 4, 5, 6, and 7 that were raised by the Lindelaufs.

b. Breach of constitutional rights arising from institutional bias, reasonable apprehension of bias, or actual bias


[264] The Appellants submit that a section 9 application by the Ministry to the Ministry will lead to an unjust result in every case. This scheme creates a reasonable apprehension of bias, regardless of the facts which supported a section 9 decision. They submit that section 9 must be considered in the present circumstance where the same Ministry of the Crown applies to itself for an approval. The statue is not designed for such an application. The Approval should be struck down, as there is no case where an institutional bias will not arise when an application is made by a party to itself.


[265] The Appellants argue that this circumstance is unconstitutional as it renders the Appellants unequal before the law in breach of section 15 of the Charter of Rights and Freedoms and section 2(e) of the Canadian Bill of Rights. They also argue that a hearing de novo will not cure the injustice, because an application by a person to himself will, in every case, produce an injustice.

[266] The Appellants further submit that the Ministry made its application for a section 9 approval on behalf of the Campbells and Dr. Jack, and that the Approval was really to benefit the Campbells and Dr. Jack. Therefore, the Ministry was biased in favour of the Campbells and Dr. Jack.

[267] Additionally, the Lindelaufs maintain that having Mr. MacFarlane review all of the written submissions regarding the application and objections, left the objectors disadvantaged. They argue that the Approval was a foregone conclusion, was a one-sided decision made “in house,” and the Appellants’ input was not considered.


[268] The Respondent Parties dispute the Appellants’ assertion that allowing an official from within the Ministry to apply to a statutory decision maker who is employed within the Ministry must necessarily be biased. They submit that courts have held that a “plurality of functions in a single administrative agency is not necessarily problematic”, citing Ocean Port Hotel Ltd. v. British Columbia et al., 2002 BCCA 311 [“Ocean Port”], at para. 8.

[269] The Responding Parties add that the Appellants’ assertions are made without reference to any evidence of bias in this case, and no apprehension of bias ought to be found on the facts.

[270] The Responding Parties submit that the decision-making powers in the Water Act permitted the Regional Manager to grant the Approval. The Responding Parties note that Mr. Oetter, because of his ongoing knowledge and involvement with issues surrounding Robbins Creek, referred the matter to the Regional Manager. The referral from Mr. Oetter did not predispose a result, and there is no extrinsic evidence of bias.

[271] The Regional Manager testified that he based his decision on the requirements of the Water Act, he relied on the professional work of Ministry staff including Mr. Giles and Mr. McFarlane, and he considered the divergent positions from local residents. The Responding Parties also referred to the Regional Manager’s evidence that he viewed the decision he had to make as his own decision. He carried out his own independent review of the issues and information before making his decision.

[272] The Responding Parties further submit that the Appellants have presented no evidence that any Provincial employee involved in this matter was improperly motivated, or showed any bias in favour of any person or any specific decision. With no evidence of bias, there is nothing that could lead to a reasonable apprehension of bias.

[273] The Responding Parties also referred to previous decisions of this Board finding that appeals before it are hearings de novo. They submit that the de novo hearing before the Panel will cure any procedural defect, which is not admitted. The proceedings in this appeal provided the Appellants with a full and fair


opportunity to offer new evidence and argument. They note that the Appellants had full opportunities to present their cases, put forward witnesses, and cross-examine witnesses put forward by the other parties.


[274] The Appellants’ position is that employment within the same Ministry by the applicant for the Approval, and by the statutory decision-maker, automatically creates an institutional or reasonable apprehension of bias, and is a breach of natural justice.

[275] The Panel disagrees. The courts have ruled that the circumstances of each case must be considered to determine whether a reasonable and properly informed person would think that the decision-maker, in this case the Regional Manager, was consciously or unconsciously influenced or biased. The courts have also stated that a plurality of functions in a single administrative agency, such as investigative and adjudicative functions, is not necessarily problematic. See Eckervogt v. British Columbia, 2004 BCCA 398 (Can LII), and Ocean Port.

[276] The current structure of the Ministry encompasses numerous programs for the management of various natural resources. It includes Crown Land policies, Fish, Wildlife and Habitat Management, and Front Counter BC which handles permit applications. The natural resource section deals with energy and mines, land tenure branch, fish and wildlife, parks, forests and water stewardship.

[277] Section 9 approvals fall within the responsibility of the Resource Stewardship Division of the Ministry. The Water Act clearly stipulates who may make a section 9 decision, but there is nothing in the Water Act restricting who may apply for a section 9 approval. It can be an individual, a corporation, or any part of the Provincial Government that wants to make a change in and about a stream. For example, someone working in the forest management section of the Ministry could apply for a section 9 approval, and the designated statutory decision-maker could be another person within the Ministry.

[278] Although that would mean that, as the Appellants put it, “the Ministry applied to the Ministry”, that does not automatically mean that there is a reasonable apprehension of bias, actual bias, or institutional bias. The fundamental principle is that there is not automatically an apprehension of bias just because of multiple functions in an agency. The facts of each case must lead to a finding that there is bias or a reasonable apprehension of bias. The Panel finds that the facts in the present case, which are discussed below, do not support such a finding.

[279] The Panel also disagrees with the Appellants that a hearing de novo before this Board does not cure any breach of natural justice that may have occurred in the decision-making process that led to the Approval. The Court in Ocean Port stated, at para. 12:

It is well settled by this Court that any breach of natural justice at the initial determination may be cured by an opportunity to engage in a full and fair evidentiary hearing before a neutral tribunal…

[280] This Board has enunciated the same principle in many of its decisions, including Hindson. In that case, the Appellant submitted that the Assistant


Manager acted in an unfair or biased manner when he made his decision under the Water Act. At page 9 of Hindson, the Board wrote:

Further, the Panel has conducted the hearing into this appeal as a new hearing, pursuant to section 92(7) of the Act. The Appellant was given a full opportunity to make oral submission on questions of fact and law, present his own witnesses and cross-examine witnesses presented by the Assistant Manager and [the Appellant]. The Panel has heard and carefully considered all of the submissions and evidence present by the parties. Therefore, the hearing before this Panel has cured any procedural defects that may have occurred in the proceedings below.

[281] The same can be said about the present appeals, and how they were conducted as a hearing de novo. In fact, the Appellants cross-examined the Responding Parties’ witnesses at length about their motives, their attitudes, and whether they were acting to support any licence holders. They especially cross-examined the Regional Manager about how he handled this file, whether he was predisposed to issuing the Approval, and even whether his decision would impact his employment.

[282] Therefore, the Panel finds that even if there was a reasonable apprehension or evidence of actual bias, neither of which has been established by the Appellants, it has been cured by the de novo hearing.

[283] The Appellants made much ado about what roles the Campbells and Dr. Jack may or may not have played in having the Ministry apply for the Approval. The Appellants also suggested that Mr. McFarlane and other Ministry staff were biased toward the Campbells and Dr. Jacks, and towards having the Approval granted.

[284] The Appellants’ cross-examinations did nothing to undermine the credibility of the Ministry’s witnesses or the bases on which they formulated their opinions. The Appellants’ cross-examinations also failed to establish any bias or predisposition to any conclusions.

[285] The Panel finds that Mr. Giles, Mr. McFarlane, and the other Ministry staff who were involved in the investigation and development of the reports supporting the application were all factual and straightforward in giving their evidence. When they had facts to formulate their opinions, they said so. When they were not sure about something, they said so. They are all experienced and knowledgeable in their respective professions. They did not fabricate the science and the extensive research and analysis which formed the basis for the Approval. As for Mr. Oetter, he prudently decided to refer the whole matter to an independent decision-maker because of his ongoing involvement in the issues with Robbins Creek.

[286] The Panel also finds that the Regional Manager was very straight-forward in his oral testimony. He was clear about how he approached this file. He reviewed the work done by Mr. Giles and Mr. McFarlane, and questioned them about their findings. He regarded them as experienced and knowledgeable investigators. However, the Regional Manager explained how he took steps to ensure that his decision would be independent and objective. He personally visited areas of Robbins Creek to observe the circumstances. He familiarized himself with the history and studies underlying the application, and he considered differing opinions


about the application, including the Appellants’ objections. He was also very clear that he fully understood his responsibilities as a statutory decision-maker. He said that he does not make decisions without a solid foundation of facts that are relevant to a specific section of a statute.

[287] The Appellants provided no evidence to contradict the Regional Manager. Their cross-examinations did nothing to undermine his testimony regarding the objectiveness and independence of his decision-making.

[288] For all of these reasons, the Panel finds that the Appellants have not established either a reasonable apprehension of bias or actual bias, and therefore, have not established a breach of natural justice. Further, even if there was a reasonable apprehension of bias or actual bias, it has been cured with the hearing de novo before the Board. Furthermore, the Panel rejects the Appellants’ claim that the Approval breached their rights under the Charter of Rights and Freedoms and the Canadian Bill of Rights. Accordingly, the Panel rejects constitutional issues 4 and 5 that were raised by Ms. Fitzpatrick and Mr. Switzer.

DECISION

[289] In making this decision, the Panel has considered all of the testimony, all of the documents and the submission by the parties and participants, whether they have been specifically referred to in this decision.

[290] For the reasons provided above, the Panel confirms the Regional Manager’s decision, subject to the following two minor amendments. The Panel orders that the Regional Manager amend the Approval by: extending the time for completing the works, as he considers appropriate; and setting a schedule for monitoring the effects of the works, as he considers appropriate.

[291] The voluntary stay of the Approval expires immediately upon the release of this decision.

[292] The appeals are dismissed.

“Gabriella Lang” “Blair Lockhart” Gabriella Lang Blair Lockhart Panel Chair Panel Member August 17, 2015


APPENDIX

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