Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO WAT-004(a) In the matter of an appeal under section 92 of the Water Act, R.S.B.C. 1996, c BETWEEN: AND: BEFORE: DATE: Assistant Regional Water Manager Ministry of Forests, Lands and Natural Resource Operations Jill Fitzpatrick A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on June 11, 2014 APPLICANT #1 (RESPONDENT) APPLICANT #2 (THIRD PARTY) APPELLANT APPEARING: For the Applicants: For the Appellant: Cory Bargen, Counsel Stephen E. King, Counsel Dennis K. Fitzpatrick, Counsel APPLICATION PRELIMINARY APPLICATION: APPLICATION TO STRIKE [1] In an application dated May 20, 2014, the Assistant Regional Water Manager (the Regional Manager ) and the Ministry of Forests, Lands and Natural Resource Operations (the Ministry ) jointly applied to strike certain orders and paragraphs from the Amended Reasons for Appeal and Particulars (the Amended Appeal ) filed on April 23, 2014 by Jill Fitzpatrick. The Applicants argue that certain orders should be struck from the Amended Appeal as they are beyond the jurisdiction of the Board, and that certain paragraphs in the Amended Appeal should be struck as they are irrelevant to the appeal and/or raise issues that are beyond the jurisdiction of the Board. [2] This application was considered on the basis of written submissions.

2 DECISION NO WAT-004(a) Page 2 BACKGROUND [3] The application relates to Ms. Fitzpatrick s appeal of the January 7, 2013 Approval to Make Changes in and about a Stream, namely, Robbins Creek (the Approval ). The Approval was issued by the Regional Manager, Rick Sommer, to the Ministry, pursuant to section 9 of the Water Act. The Regional Manager works in the Water Stewardship Authorization Division of the same Ministry. [4] In addition to the appeal by Ms. Fitzpatrick, appeals against the Approval were also filed by Michael and Joaney Lindelauf (Appeal No WAT-003) and by William Switzer (Appeal No WAT-005). These appeals have been joined with Ms. Fitzpatrick s appeal for the purposes of a hearing; however, these Appellants have not made submissions on the subject application. [5] A ten-day hearing has been scheduled to hear the three appeals commencing on June 23, [6] The Ministry, as Approval Holder, is a Third Party in all three appeals. In addition, the following potentially affected persons have been added as Third Parties to the appeals but are not making submissions on this application: Menno Schellenberg, Frances Monk, Douglas Jack, Daniel Sanford, Robbins Creek Water Bailiff, and Larry and Holly Campbell. Finally, it should be noted that each of the Appellants have been added as a Third Party in each other s appeal. The Approval [7] The Approval authorizes the Ministry to make changes in and about Robbins Creek, a stream located in Kamloops BC. The specific change authorized in the Approval is to redirect the surface flow of Robbins Creek back into its original channel. [8] The Approval impacts four properties, described in the Approval as Sites 1, 2, 3 and 4. The Approval authorizes the following construction on those sites: 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-contouring of the road approaches; and At Site 4: possible culvert installation, as submitted with application. [9] There are a number of conditions attached to the Approval. [10] The Approval requires the works to be completed on or before December 31, The Ministry has consented to a voluntary stay of the Approval pending completion of the appeals (i.e., until the Board s decision on the merits of the appeals).

3 DECISION NO WAT-004(a) Page 3 The Fitzpatrick Appeal [11] On February 5, 2013, the Board received a Notice of Appeal filed by Ms. Fitzpatrick. Ms. Fitzpatrick provided 11 pages of reasons for the appeal and particulars. The Appellant states that, in 2007, she purchased land that will be physically affected by the Approval; specifically, land containing the Bogetti Meadow. She submits that redirecting the surface flow will affect acres of land and will flood Bogetti Meadow. Ms. Fitzpatrick describes the impact as follows. [12] Bogetti Meadow currently has the Lower Creek flowing alongside the meadow. The Ministry has identified this Lower Creek as the historical creek channel for Robbins Creek. [13] To the north of the Bogetti Meadow is a second creek, which Ms. Fitzpatrick describes as the Upper Creek. Ms. Fitzpatrick states the Ministry believes the Upper Creek is a diversion channel. [14] Ms. Fitzpatrick understands that the Approval will, in effect, re-direct the water which currently flows through the Upper Creek into the Lower Creek. The Approval will move all of the water to what it [the Ministry] says is the historical creek channel, and which it says was wrongfully diverted around Contrary to the Ministry s belief, Ms. Fitzpatrick submits that the works allowed under the Approval will move the Upper Creek away from its historical path. [Emphasis in original] [15] In addition, it is clear from Ms. Fitzpatrick s original Notice of Appeal that she believes that the Ministry applied for the Approval instead of, or possibly as an agent for, private citizens; specifically, licensees that have held water rights under licences for many years, have not exercised their rights for many years, and who are now seeking their full entitlement of water under the licences. [16] On April 23, 2014, the Appellant filed the Amended Appeal, which is the subject of this application. The Amended Appeal contains many minor wording changes to the original appeal, as well as some entirely new orders sought from the Board and some new allegations and arguments. The Amended Appeal, like the original, is divided into three parts. Part 1 sets out the Orders Sought from the Board on the appeal. Part 2 sets out the Factual Basis for the appeal. Part 3 sets out the Legal Basis for her challenges to the Approval. The Application [17] On May 20, 2014, the Board received the subject application to strike six of the orders requested in the Amended Appeal, and 28 of the paragraphs in Parts 2 and 3 of the Amended Appeal. [18] Ms. Fitzpatrick subsequently agreed to withdraw or modify the disputed orders. She advises that a further amendment to the Amended Appeal will be provided. Accordingly, these orders are no longer the subject of this application, with one exception. [19] One of the orders sought by Ms. Fitzpatrick was for a declaration that the Assistant Regional Water Manager should have cancelled specified water licences

4 DECISION NO WAT-004(a) Page 4 for non use within the three years preceding the decision. Ms. Fitzpatrick now states that she will ask the Board to make that finding of fact, as opposed to a declaration. The Applicants submit that this change does not address their jurisdictional concerns. The Panel will consider this matter under a separate issue in the decision below. [20] The 28 paragraphs at issue are found under parts 2 and 3 of the Amended Appeal as follows: Part 2 Factual Basis : paragraphs 8, 8a, 13, 14, 14a, 19, and Part 3 Legal Basis : paragraphs 9-13, 14-18, 20, 21-23, 24-26, 26a, and 37. [21] In general, the Applicants submit that the Board s jurisdiction in this appeal is to determine whether the Regional Manager took into account the appropriate and correct facts when granting the Approval under section 9 of the Water Act. They submit that the assertions and legal arguments set out in the disputed paragraphs are irrelevant and/or raise issues outside of the Board s jurisdiction. [22] Ms. Fitzpatrick submits that the 28 paragraphs are simply part of the factual and legal matrix within which the decision-maker made his decision, and that the Board s review of the Regional Manager s decision cannot be made in the absence of them. She submits that the paragraphs raise, or underlie, valid issues to be decided in the appeal. ISSUES 1. Whether the application to strike the specified paragraphs should be granted on the grounds that they are irrelevant to the appeal, or beyond the jurisdiction of the Board. 2. Whether the non-use of licences for three years preceding the Approval can be the subject of a finding of fact by the Board in the context of this appeal. THE TEST [23] In Cobble Hill Holdings Ltd. v. British Columbia (Ministry of Environment), [2014] B.C.E.A. No. 1 (Q.L.) [Cobble Hill], the Board established the applicable test for striking a ground for appeal from a Notice of Appeal filed under the Environmental Management Act. The Board first noted that its jurisdiction is derived from, and governed by statutes: it has no inherent jurisdiction. Therefore, in order to determine whether something is within its jurisdiction, the first step is to consider the relevant statutory provisions. [24] The Board also adopted the test used by Canadian courts to strike claims. That is, claims should be struck only when it is plain and obvious that the claim at issue cannot succeed. It explained why it chose this test, and how it would be applied, in paragraphs as follows: [46]... statutory interpretation particularly interpreting the limits of one s jurisdiction is, unfortunately, not as simple as Cobble Hill

5 DECISION NO WAT-004(a) Page 5 appears to suggest. The language used in legislation is not always amenable to black and white, yes and no answers. There are often many grey areas. In these circumstances, a proper interpretation may benefit from a factual context, evidence, and additional argument. In the context of an application to strike, it would be careless - and could result in significant unfairness - to strike a claim or a ground for appeal unless it is plain and obvious that such a claim or ground for appeal is not within the tribunal s jurisdiction. [47] Although the plain and obvious test establishes a high threshold to meet in order to succeed on an application, the Panel is of the view that the threshold should be high. In addition to the reasons provided above, during a preliminary application, neither the parties, nor the Board, have had time to fully comprehend the legislative framework and the implications of different interpretations of the legislation. There are occasions when evidence can be helpful to interpreting the mischief intended to be prevented by the legislation, the consequences of certain interpretations, as well as any technical meanings of words within a specialized area or context. [48] In addition, one of the reasons for the existence of administrative tribunals is to make the process more accessible to parties who are not represented by legal counsel. The threshold must be high to ensure that they have a chance to be heard on matters that are, arguably, within the tribunal s jurisdiction. [49] With this latter point in mind, the Panel agrees with the philosophy adopted by the courts that a claim, in this case a Notice of Appeal, should be read as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies (per Speckling). [50] Accordingly, the test to be applied on these applications will be whether, based upon a generous reading, it is plain and obvious that the appeal, or the ground for appeal, is beyond the statutory jurisdiction of the Board. [25] Although the current appeal is under the Water Act, the Panel finds that the test set out in Cobble Hill is equally applicable. RELEVANT LEGISLATION [26] The Approval was issued pursuant to section 9(1) of the Water Act, which states: Changes in and about a stream 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,

6 DECISION NO WAT-004(a) Page 6 (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. [27] The Board s jurisdiction over an appeal, and its decision-making powers on an appeal under the Water Act, are set out in Part 6 of that Act. Of relevance to these applications are the following sections: Appeals to Environmental Appeal Board 92(1) Subject to subsections (2) and (3), an order of the comptroller, the regional water manager or an engineer may be appealed to the appeal board by... (a) the person who is subject to the order, (b) an owner whose land is or is likely to be physically affected by the order, or (c) a licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order. (4) The time limit for commencing an appeal is 30 days after notice of the order being appealed is given (a) to the person subject to the order, or (b) in accordance with the regulations.... (7) The appeal board may conduct an appeal by way of a new hearing. (8) On an appeal, the appeal 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 appealed could have made and that the board considers appropriate in the circumstances.

7 DECISION NO WAT-004(a) Page 7 (9) An appeal does not act as a stay or suspend the operation of the order being appealed unless the appeal board orders otherwise. DISCUSSION AND ANALYSIS 1. Whether the application to strike the specified paragraphs should be granted on the grounds that they are irrelevant to the appeal, or beyond the jurisdiction of the Board. [28] As a preliminary point it should be clarified that, in making a decision on this application, the factual assertions set out in the Amended Appeal are not being accepted by the Panel as the facts simply because they are asserted in the Amended Appeal or are referred to in this decision. The factual assertions set out in the Amended Appeal will be the subject of evidence at the hearing, and may also be the subject of objections and contrary evidence at the hearing. Ultimately, the Hearing Panel will be required to determine the facts, their relevance to the issues, and apply the facts to the law in order to make a decision on the merits of the appeal. [29] The Panel also notes that many of the paragraphs at issue contain multiple points and arguments, some of which are of debatable relevance. Unfortunately, the nature of an application to strike at this juncture forces a preliminary determination of relevancy. Given the potentially serious consequences to an appellant that may flow from the Board s decision on an application to strike (i.e., it can limit the scope of an appeal and the arguments to be made), as stated in Cobble Hill, the test establishes a high threshold and the paragraphs should be read as generously as possible. To achieve the latter, the Panel will attempt to evaluate the main theme or thrust of the disputed paragraphs, rather than focusing on the minutiae, in order to determine whether it is plain and obvious that the paragraphs are beyond the Board s jurisdiction, or are clearly irrelevant to the appeal. If it is not plain and obvious that the paragraph should be struck, the Applicants jurisdictional concerns, and their concerns with factual and legal relevancy, will have to be raised again and addressed in the usual way during the hearing. [30] The Panel will now proceed to consider the parties submissions on the application to strike the disputed paragraphs identified below. Part 2: FACTUAL BASIS Paragraphs 8 and 8(a): Reconnection of pipe should be attempted first [31] In paragraph 8, Ms. Fitzpatrick identifies a potential alternative to the Approval. She understands that a pipe may have been removed many years ago and that, if it is reconnected, there may be no need to redirect Robbins Creek. Ms Fitzpatrick states that this alternative should be pursued before there is a detrimental change to our property. [32] In paragraph 8a, Ms. Fitzpatrick expands upon paragraph 8. She believes that the diversion pipe was not previously reconnected because the licensees were

8 DECISION NO WAT-004(a) Page 8 not using the water. She submits that the Minister was aware that the licensees were not using the water under their licences and failed to get a statutory declaration of beneficial use of the water under section of the Water Act. Section states: (1) A licensee must submit to the comptroller, regional water manager or engineer a signed declaration in accordance with subsection (2) when directed to do this by the comptroller, regional water manager or engineer. (2) A declaration required under subsection (1) must (a) state whether the licensee has (i) during the 3 years preceding the date of the declaration, made beneficial use of the authorized quantity of water for the purpose authorized under the licence, (ii) during that period, diverted and used the water in the manner authorized under the licence, and (iii) complied with all other terms and conditions of the licence, (b) include any other information required by the comptroller, regional water manager or engineer, and (c) be in the form required by the comptroller, regional water manager or engineer. [33] The Applicants submit that it is beyond the Board s jurisdiction in this appeal to consider, or determine, whether a section statutory declaration should have been required. Further, they submit that such an inquiry is irrelevant to the issues properly before the Board: i.e., whether the Regional Manager properly granted the Approval to carry out works in and about a stream under section 9 of the Water Act. [34] The Panel agrees that the allegation that the Minister failed to get a statutory declaration as required by section of the Water Act is not properly before the Board. It is not within the Board s jurisdiction on this appeal to determine whether a section beneficial use declaration should have been required. This is a completely different inquiry under a completely different section of the Water Act. There is no requirement, or authority, for the Board to inquire into whether such a declaration should have been, or should now be, required in the context of this appeal. Therefore, the Panel finds that paragraph 8a raises a matter that is clearly beyond the subject matter of the appeal and is therefore struck. [35] In addition, the Panel notes that Ms. Fitzpatrick goes on to claim in her reply submissions that the Minister was negligent by failing to obtain a statutory declaration of beneficial water use under section of the Water Act. Claims in

9 DECISION NO WAT-004(a) Page 9 negligence are not within the statutory jurisdiction of the Board and, in any event, it is beyond the jurisdiction of the Board for the reasons above. [36] Regarding paragraph 8 and the disconnected pipe, the Panel is of the view that, on a generous reading, this paragraph may raise a matter that is relevant to the Board s consideration of the Approval; that is, does the Regional Manager have to consider possible alternative solutions, such as reconnecting a pipe, before issuing a section 9 approval. Accordingly, the Panel finds that it is not plain and obvious that paragraph 8 should be struck. That application is denied. Paragraphs 13-14(a): The Approval allows a whole new diversion [37] In these paragraphs, Ms. Fitzpatrick makes three points: 1. The Approval is purporting to remedy forty-five years of inaction by persons who slept on their rights to the detriment of Ms. Fitzpatrick. 2. At least one of the licensees who will benefit from the Approval holds a licence that has been in place since The Regional Manager, the Minister, or both, had sufficient information since July 6, 2011 to cancel the licences under section 23 of the Water Act for non-use. [38] The Applicants submit that these paragraphs allege facts related to the timing of the application to address the unauthorized works (i.e., the alleged unauthorized diversion ditch, or Upper Creek ), and allege that one of the downstream licences should have been cancelled for lack of use. The Applicants submit that these are irrelevant allegations: they do not relate to matters which the decision-maker, or the Board, can consider when deciding whether to confirm, vary or rescind the section 9 Approval. [39] In response, Ms. Fitzpatrick submits that she is not asking the Board to cancel the licences. Rather, these facts are relevant to the Ministry s reasons for applying for the Approval, instead of the true beneficiaries of the Approval. She also submits that these assertions relate to an institutional bias argument that she will be making at the hearing (and which has not been challenged in this application). [40] On a generous reading of paragraphs 13 and 14, the Panel is of the view that these paragraphs, again, go to the question of what considerations are relevant to a section 9 approval decision. Does there come a time when the historical channel is no longer relevant? Does or should the non-use of licensed water, or its incomplete use, factor into a section 9 approval decision? Accordingly, these paragraphs will not be struck. [41] However, with respect to paragraph 14a, the Panel is concerned with the current language. Like the statutory declaration issue, whether the Regional Manager should have cancelled a licence for non-use under section 23 of the Water Act is beyond the jurisdiction of the Board to decide in the context of this appeal. Cancellation of licences involves a completely different inquiry under a completely different section of the Water Act, and such a decision may, in and of itself, be

10 DECISION NO WAT-004(a) Page 10 appealed to the Board. Ms. Fitzpatrick clarifies in her reply that she is not asking the Board to cancel the licences: she is simply arguing that the Regional Manager s decision to approve changes in and about a stream for the apparent benefit of other licensees, when their licenses could have been cancelled under section 23, is wrong. [42] The Panel is prepared to accept this modification and clarification of paragraph 14a. Provided that she adheres to this modified version of the paragraph, the Panel will not strike paragraph 14a. Paragraph 19: Budget is Inadequate [43] This paragraph states in full: The Ministry says they have secured $50,000 of government funds... to cover the expenses of the Proposed Works. That sum is not enough to pay the engineering reports which are necessary to assure viability. Accordingly, the Appellants believe that $50, will not cover the cost of the Proposed Works on three sites, based on what the Ministry proposed at the June 18th meeting. [44] The Applicants submit that the Ministry s budget for the approved works was not a relevant factor for the Regional Manager to consider when he made the decision to issue the Approval, and it is not a relevant consideration for the Board in consideration of the decision under appeal. The Panel agrees. [45] Regardless of whether an application for an approval is made by a private citizen, a company, or the government, it is inconceivable how this could be a relevant consideration under the Water Act. The Panel finds that this meets the plain and obvious test. Paragraph 19 of the Amended Appeal is therefore struck. Paragraphs 20-22: Ecology [46] In these paragraphs, Ms. Fitzpatrick states that western toads have been identified in the Upper Creek. She states that these toads are a species listed as of special concern by the Committee on the Status of Endangered Wildlife in Canada, and that eliminating the Upper Creek will threaten these populations. She submits that no measure was provided in the Approval for the disruption of the ecology. [47] The Applicants submit that these assertions require expert evidence and no expert reports have been tendered within the specified timeline. Since there is no basis for these allegations, the paragraphs should be struck. [48] This application to strike is denied. The Panel finds that it is neither plain nor obvious that such matters are irrelevant to a decision under section 9 of the Water Act. The Panel will not prejudge whether or not expert evidence is required to establish the assertions in these paragraphs. That will be for argument during the hearing.

11 DECISION NO WAT-004(a) Page 11 Part 3: LEGAL BASIS Paragraph 9: Laches [49] This paragraph states in full: No rule of procedural fairness permits any party to come forward after years to prove a case when relevant witnesses will be dead. [50] The Applicants submit that there is no basis for asserting that the passing of any particular length of time prevents an applicant from seeking an authorization under section 9, and no such limitation period, or time bar, exists. [51] Ms. Fitzpatrick submits that the Board may consider the timeliness of the application for the Approval. [52] In Hunt v. Carey, [1990] 2 S.C.R. 959, the Court stated at paragraph 52: 52. The fact that a pleading reveals an arguable, difficult or important point of law cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [53] Although there is no statutory limitation period that would apply to the decision on the Ministry s application, or the decision to issue the Approval, the Panel is not in a position to conclude, with any degree of certainty, that it is plain and obvious that this claim is beyond the statutory jurisdiction of the Board, or is irrelevant to the subject matter of the appeal. This application to strike is denied. Paragraphs 10-11, 13: Too Much Time has Passed [54] In these paragraphs, Ms. Fitzpatrick states that she purchased her land in reliance of water flowing through it. She argues that the Approval effectively allows others to sleep on their water rights to her detriment. She argues that it is not equitable, nor is it consistent with the principles of natural justice, to make changes going back so long. It is a time honoured principle that one must act promptly if his or her actions or remedies detrimentally affect others. [55] In paragraph 13, Ms. Fitzpatrick submits that licensees have a duty to bring any concerns regarding their water rights to the attention of the Ministry immediately, not to wait decades to exercise them. [56] The Applicants argue that the passing of time does not prevent an applicant from seeking a section 9 Approval, and that these paragraphs should, accordingly, be struck. [57] For the same reasons given in relation to the paragraph 9 (above), the Panel denies this application to strike.

12 DECISION NO WAT-004(a) Page 12 Paragraph 12: Ministry s knowledge [58] This paragraph relates to the question of when the Ministry became aware of the alleged unauthorized diversion ditch, i.e., the Upper Creek. Ms. Fitzpatrick states: At the June 18th meeting, the Minister s representatives said they were not aware of the problem until That is not consistent with the records. The Ministry showed aerial photographs of dredging in the Upper Creek in The Upper Creek was clearly in existence then. [59] This paragraph appears to contain primarily assertions of fact. As such, the Panel will not strike this paragraph from the Amended Appeal. It is not plain and obvious that these assertions are beyond the Board s jurisdiction, or irrelevant to the Approval decision. Ultimately, these assertions may or may not be substantiated at the hearing. Further, if they are substantiated, their relevance to the Approval under appeal should be determined by the Hearing Panel. [60] This application to strike is denied. Paragraphs 14-18: Failure to Prosecute [61] In these paragraphs, Ms. Fitzpatrick argues that the Crown could have prosecuted individuals for the alleged unauthorized or illegal diversions which created the Upper Creek. She argues in these paragraphs that the Crown failed to investigate, assess and prosecute any offenders under the Water Act. In paragraph 18 she asserts as follows: The Crown should not bring an application against itself for the benefit of an individual in circumstances where the right thing to do was to take timely action within the statute, decades ago. [62] The Applicants submit that any arguments regarding prosecution, or the Crown s decision not to prosecute, are irrelevant to the issue of whether the Approval was properly issued. [63] The Panel finds that, a decision to prosecute or not to prosecute - is not appealable and is not, in and of itself, relevant to the subject matter of this appeal. The factors to be considered when evaluating whether to prosecute, and the test for establishing an offence, are different from the considerations and the test for granting an approval under section 9 of the Water Act. [64] Ms. Fitzpatrick has identified various factual and legal arguments in relation to the Ministry s knowledge of the alleged unauthorized activities in and about the stream. Her arguments in paragraphs of the Amended Appeal, to the extent that they require an evaluation of any decision on a prosecution, are irrelevant to the Approval decision and are beyond the statutory jurisdiction of the Board to decide. [65] These paragraphs are therefore struck.

13 DECISION NO WAT-004(a) Page 13 Paragraph 20: Res Judicata [66] Ms. Fitzpatrick states in this paragraph that, apparently, forty-seven years ago there was a dispute involving previous owners of two of the properties which are now impacted by the subject decision. She understands that some resolution was reached and that the Minister was involved at some point over the course of the dispute. In paragraph 20, Ms. Fitzpatrick then states that she will be seeking production of documents related to that dispute. [67] The Applicants argue that any interaction between land owners at that time has no relevance to the decision now under appeal. They submit: No historical interaction between landowners could impact the decision to grant an authorization to return Robbins Creek to its original channel... [68] On its face, there is no connection between a forty-seven year old dispute, a negotiated agreement between private individuals, and the Approval under appeal. An inquiry into the possibility of a dispute and the possibility of an agreement appear completely irrelevant to the decision at issue in this appeal, i.e., the Approval. [69] Moreover, the Panel notes that such an inquiry, even if it established that there was some resolution of a dispute, is likely of such minimal probative value to the jurisdiction of the Regional Manager in this matter, and his decision on whether to issue the Approval, that further document disclosure on this matter, and any evidence produced at the hearing, would distract - and detract - from the important questions before the Board on the appeal. [70] The application to strike this paragraph is granted. Paragraphs 21-23: Alternate Sources of Water [71] In these three paragraphs, Ms. Fitzpatrick states that there was a July 8, 1996 and a January 8, 2010 report by the Ministry assessing water availability in Campbell Creek, which estimated that there was additional stored water available for licensing from that creek. She goes on to seek confirmation from the Ministry as to what water reports were prepared for Robbins Creek and the disclosure of all new licences granted by the Ministry on Robbins Creek in reliance on reports, and since the historical changes to Robbins Creek occurred. [72] The Applicants submit that these paragraphs present information regarding water availability in Campbell Creek. They submit that the amount of water in Campbell Creek is not a relevant consideration with respect to whether Robbins Creek should be returned to its original channel. [73] It is unclear what relevance the Campbell Creek reports have to the subject Approval dealing with Robbins Creek. In any event, these paragraphs are really requests for documents. As such, they should be the subject of a request for document production, which will then be subject to a specific inquiry into their relevancy to the issues in the appeal. [74] The purpose of the Amended Appeal is to describe the grounds for appeal and the remedies sought. These paragraphs are not properly grounds for appeal,

14 DECISION NO WAT-004(a) Page 14 nor do they appear to set out any legal argument. They do not belong in this particular document and, accordingly, should be struck from the Amended Appeal. If Ms. Fitzpatrick wishes to obtain the documents requested, she should do so following the normal procedure for requesting documents. [75] The application to strike these paragraphs is granted. Paragraphs 24-26(a): Compensation [76] In these paragraphs, Ms. Fitzpatrick describes the factual basis for a claim of compensation under section 21 of the Water Act, and advises that it is her intention to seek damages for any hardship encountered if the Approval is confirmed. She also questions whether the Ministry s budget is sufficient to pay damages to those who suffer losses as a consequence of the works. She submits that the Approval should be set aside because it fails to provide for the compensation required by section 21. [77] In her reply submission to this application, Ms. Fitzpatrick clarifies that she does not seek compensation from the Board, but that the decision-maker ought to have considered it before he made the decision. [78] The Applicants submit that no works have commenced and no damages are alleged to have taken place. Further, the Board has no jurisdiction to award compensation. [79] Section 21 of the Water Act states: Rights and responsibilities under licence or approval 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. (2) Subject to subsection (1), a holder of a licence for power purpose, waterworks purpose or irrigation purpose may fell and remove any tree and remove any rock or other thing that endangers the holder's works. [80] Compensation and damages are not properly matters within the Board jurisdiction to consider in the context of this appeal. Section 21 establishes the responsibility for certain specified person to avoid damaging land, works, trees and other property, and to make full compensation for damage or loss resulting from construction, maintenance, use, operation or failure of the works. As noted by the

15 DECISION NO WAT-004(a) Page 15 Applicant, the issue of compensation for the types of damage or loss described in section 21 arise only after there is loss or damage they are not proper considerations, and are purely speculative, at the time the Regional Manager considers the application. [81] The Panel finds that it is plain and obvious that matters of loss and/or damage that may result from the Approval are not considerations that are relevant to the issuance of a section 9 approval. The responsibilities of an approval holder, in this case the Ministry, are set out separately in the legislation (section 21): compensation is a specific entitlement for those who suffer loss or damage from the authorized works. [82] The Panel further notes that the subject paragraphs in the Amended Appeal set up the factual basis for Ms. Fitzpatrick s request in paragraph 26 that the Approval be set aside because it fails to provide for compensation. The Panel finds that this request has no prospect of success. [83] These paragraphs are therefore struck. Paragraph 37: Common Law Rights [84] This paragraph states: The Appellant preserves her right to argue that the proposed works breach her common law rights to the water associated with her land. [85] The Applicants submit that this paragraph is exceptionally vague and must be struck. They argue that this paragraph does not provide notice to the responding parties, or the Board, about the nature of the arguments that Ms. Fitzpatrick intends to make. Further, they argue that the operation of the Act supersedes any common law right than once may have existed. [86] In her reply submissions, Ms. Fitzpatrick states that she will be amending this paragraph to rely upon the Federal Railway Belt Water Act, as a limit on the Provincial Crown s powers to deal with her riparian rights to her water use for domestic purposes. The Applicants submit that this new submission is an elaboration of her argument contained in the recent Notice of Constitutional Question. They submit that this paragraph should be struck on the basis that it is exceptionally vague, but advise that they will respond to the arguments in the Notice of Constitutional Question in argument at the hearing of the appeal. [87] Although the Panel agrees that, despite Ms. Fitzpatrick s elaboration, her claim remains unclear, this is not the test. What is clear is that the merits of her claims regarding the federal enactment and the limits on provincial powers will be fully argued at the hearing as part of the Notice of Constitutional Question. At this time, it is not plain and obvious that this claim is beyond the statutory jurisdiction of the Board, or that it has no chance of success. [88] Accordingly, this application is denied.

16 DECISION NO WAT-004(a) Page Whether the non-use of licences for three years preceding the Approval can be the subject of a finding of fact by the Board in the context of this appeal. [89] As stated earlier in this decision, one of the orders sought by Ms. Fitzpatrick was for a declaration that the Regional Manager should have cancelled specified water licences for non use within the three years preceding the decision. Ms. Fitzpatrick now states that she will ask the Board to make that finding of fact, as opposed to a declaration. [90] The Applicants submit that this change does not address their jurisdictional concerns. They submit that regardless of whether Ms. Fitzpatrick chooses to seek a finding of fact, as opposed to a declaration that licences should have been cancelled for non-use, she is still seeking to have the Board make findings on matters outside of its jurisdiction. The Applicants submit that the only matter properly before the Board is the Approval, which was issued by the Regional Manager under section 9(1) of the Water Act. They submit that the appeal requires an inquiry into whether the decision-maker took into account the appropriate and correct facts in granting that Approval; it does not trigger an inquiry into matters beyond those set out in section 9. The Panel agrees. [91] As stated earlier in this decision, cancellation of a water licence for non use involves a completely different inquiry, under a completely different section of the Water Act. There is no requirement, or authority, to make the finding of fact requested in the context of this appeal. [92] However, this is not to say that past use of the water by a licensee is irrelevant to the appeal. Information regarding water use and availability may properly be a relevant consideration in the context of a decision under section 9 of the Water Act. Ms. Fitzpatrick states in her reply that the original decision-maker could not and should not decide to make changes in or about a stream for the benefit of licensees who did not use their water. Such information may be relevant to whether the Approval is appropriate in the circumstances. This is why the Panel has denied the application to strike paragraph 14a, subject to Ms. Fitzpatrick s modifications. DECISION [93] The Panel has considered all of the submissions and arguments made, whether or not they have been specifically referenced herein. [94] The application to strike paragraphs from Ms. Fitzpatrick s Amended Appeal is granted in part. In particular, the following applications to strike are granted: Part 2 Factual Basis The application to strike paragraph 8a is granted. This paragraph is struck. The application to strike paragraph 19 is granted. This paragraph is struck.

17 DECISION NO WAT-004(a) Page 17 Part 3 Legal Basis The application to strike paragraphs is granted. These paragraphs are struck. The application to strike paragraph 20 is granted. This paragraph is struck. The application to strike paragraphs is granted. These paragraphs are struck. The application to strike paragraphs 24-26a is granted. These paragraphs are struck. [95] The remaining applications are denied, subject to any limits on the scope or breadth of the paragraph identified by the Panel. [96] 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. Alan Andison Alan Andison, Chair June 16, 2014