Environmental - British Columbia

EnvironmentalAppeal Board

Fourth Floor, 747 Fort StreetVictoria, British ColumbiaTelephone: (604) 387-3464Facsimile: (604) 356-9923

Mailing Address:P.O. Box 9425Stn Prov GovtVictoria, British ColumbiaV8W 9V1

Honourable Barry PennerMinister of EnvironmentMinister Responsible for Water Stewardship & Sustainable CommunitiesParliament BuildingsVictoria, British ColumbiaV8V 1X4

Honourable George AbbottMinister of Health Parliament BuildingsVictoria, British ColumbiaV8V 1X4

Dear Ministers:

I respectfully submit herewith the Annual Report of the Environmental Appeal Boardfor the period April 1, 2004 through March 31, 2005.

Yours truly,

Alan AndisonChairEnvironmental Appeal Board

E N V I R O N M E N T A L A P P E A L B O A R D A N N U A L R E P O R T 2 0 0 4 / 2 0 0 5

AR04/05

Table of Contents

Message from the Chair 5

Introduction 6

The Board 7

Board Membership 7

The Board Office 8

Policy on Freedom of Information 8

Legislative Amendments Affecting the Board 9

The Appeal Process 10

Recommendations 11

Statistics 12

Summaries of Environmental Appeal Board Decisions 14

Summaries of Court Decisions Related to the Board 30

Summaries of Cabinet Decisions Related to the Board 32

Appendix I Legislation and Regulations 33

Canadian Cataloguing in Publication DataBritish Columbia. Environmental Appeal Board.

Annual report of the Environmental Appeal Board.-- 1990 / 91 -

Annual.Report year ends June 30.ISSN 11-88-021X

1. British Columbia. Environmental Appeal Board -Periodicals. 2. Environmental law - BritishColumbia - Periodicals. 3. Pollution - Law andlegislation - British Columbia - Periodicals. I.

KEB421.A49E58 354.7110082’321 C91-092316-7

ENV126788.1192

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Message from the Chair

Iam pleased to submit the fourteenth AnnualReport of the Environmental Appeal Board.

One new member was appointed to theBoard during this reporting period and I would like to welcome David Searle, Q.C. to the Board. Mr. Searle was also appointed to the Forest AppealsCommission.

During this report period, some significantchanges to the legislation governing appeals to the Board came into force. The EnvironmentalManagement Act came into force in July of 2004. It replaced the Waste Management Act and theEnvironment Management Act, combining the matters that they regulated into a single statute.The Integrated Pest Management Act also came intoforce during 2004, replacing the Pesticide ControlAct. Finally, the Government also proclaimed a newa Sewerage System Regulation in July of 2004. ThisRegulation replaces the existing Sewage DisposalRegulation. Additional information regarding thesechanges is discussed in more detail later in thisreport.

Of special note during this report periodwas the completion of phase 1 of the regulation of ground water in British Columbia. Changes tothe Water Act, and the enactment of the first sixsections of the Ground Water Protection Regulation,constitute a significant advancement towards theprotection of this important resource. Thesechanges will also result in new decisions that will besubject to appeal before the Board in future years.

In addition to legislative changes, theBoard’s office also underwent some changes thisyear. The Board’s office, which provides the financial and administrative support for both theBoard and the Forest Appeals Commission, wasexpanded. Two additional tribunals now share theBoard’s office and administrative staff: theCommunity Care and Assisted Living Appeal Boardand the Hospital Appeal Board. These tribunalshave different Chairs and operate independently, while taking advantage of the cost effectiveness ofsharing an office and its administrative staff.

Alan Andison

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Introduction

The Environmental Appeal Board hears appealsfrom administrative decisions related to

environmental issues. The information contained in this report covers the period of time betweenApril 1, 2004 and March 31, 2005.

The report provides an overview of thestructure and function of the Board and how theappeal process operates. It contains statistics onappeals filed, hearings held and decisions issued bythe Board within the report period. It also containsthe Board’s recommendations for legislative changesto the statutes and regulations under which theBoard has jurisdiction to hear appeals. Finally, summaries of the decisions issued by the Board during the report period are provided and sections ofthe relevant statutes and regulations are reproduced.

Decisions of the Environmental AppealBoard are available for viewing at the Board office,on the Internet, and at the following libraries:

� Ministry of Environment Library

� University of British Columbia Law Library

� University of Victoria Law Library

� British Columbia Court House Library Society

� West Coast Environmental Law Library

Decisions are also available through theQuicklaw Data Base.

Information about the EnvironmentalAppeal Board is available from the Board office andon the Board’s website. Detailed information on theBoard’s policies and procedures can be found in theEnvironmental Appeal Board Procedure Manual.Pamphlets explaining the appeal procedure undereach of the relevant statutes are also available.Please feel free to contact the office if you have anyquestions, or would like additional copies of thisreport. The Board can be reached at:

Environmental Appeal BoardFourth Floor, 747 Fort StreetVictoria, British ColumbiaV8W 3E9Telephone: (250) 387-3464Facsimile: (250) 356-9923

Website Address:www.eab.gov.bc.ca

Mailing Address:PO Box 9425 Stn Prov GovtVictoria, British ColumbiaV8W 9V1

The Environmental Appeal Board is an independent agency established under the

Environment Management Act and continued underthe Environmental Management Act. It hears appealsfrom administrative decisions made under a numberof statutes. The statutes in force during the reportperiod were the Pesticide Control Act, replaced by the Integrated Pest Management Act, the WasteManagement Act, replaced by the EnvironmentalManagement Act, the Wildlife Act and the Water Act.The Minister responsible for all of these statutes,except for the Water Act, was the Minister of Water,Land and Air Protection. The Water Act was administered by the Minister of Sustainable ResourceManagement. The Board also hears appeals from certain decision made under the Health Act, whichwas administered by the Minister of Health Services. 1

Board MembershipThe Board members are appointed by the

Lieutenant Governor in Council (Cabinet) undersection 93(3) of the Environmental Management Act(formerly section 11(3) of the EnvironmentManagement Act). The members are drawn fromacross the Province, representing diverse businessand technical experience. Board membership consists of a full-time chair, one or more part-timevice-chairs, and a number of part-time members.

The Board From

ChairAlan Andison Victoria

Vice-chairCindy Derkaz Salmon Arm

Members Sean Brophy North Vancouver Robert Cameron North Vancouver Richard Cannings Naramata Don Cummings Penticton Bruce Devitt Victoria Margaret Eriksson New Westminster Robert F. Gerath North Vancouver R.A. (Al) Gorley Victoria James Hackett Nanaimo Lynne Huestis North Vancouver Katherine Lewis Prince George Paul Love Campbell River David Ormerod Victoria Gary Robinson Victoria David Searle (from November 1, 2004) Vancouver Lorraine Shore Vancouver David J. Thomas Victoria Robert Wickett Vancouver Stephen V.H. Willett Kamloops Phillip Wong Vancouver J.A. (Alex) Wood North Vancouver


The Board

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1 Effective June 16, 2005, the provincial government reorganized theministries. The Ministry of Water, Land and Air Protection and theMinistry of Sustainable Resource Management became part of the newMinistry of Environment. The Ministry of Health Services became partof the new Ministry of Health.

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The Board OfficeThe Board office provides registry

services, legal advice, research support, systems support, financial and administrative services, training and communications support for the Board.

The Board shares its staff and its officespace with the Forest Appeals Commission. TheForest Appeals Commission hears appeals fromforestry-related administrative decisions made underthe Forest Practices Code of British Columbia Act, theForest Act, the Forest and Range Practices Act, thePrivate Managed Forest Land Act, the Range Act, andthe Wildfire Act, in much the same way that theBoard hears environmental appeals. As of December2004, the Board also shares its staff and its officespace with two additional tribunals: the CommunityCare and Assisted Living Appeal Board and theHospital Appeal Board.

Each of these tribunals operates complete-ly independently of one another. Supporting fourtribunals through one administrative office giveseach tribunal greater access to resources while, atthe same time, cutting down on administration andoperation costs. In this way, expertise can be sharedand work can be done more efficiently.

Policy on Freedom ofInformation and Protectionof Privacy

The appeal process is public in nature.Hearings are open to the public, and informationprovided to the Board by one party must also beprovided to all other parties to the appeal.

The Board is subject to the Freedom ofInformation and Protection of Privacy Act and the regulations under that Act. If a member of the public requests information regarding an appeal,that information may be disclosed, unless the information falls under one of the exceptions in theFreedom of Information and Protection of Privacy Act.

Parties to appeals should be aware thatinformation supplied to the Board is subject to public scrutiny and review.

In this report period, there were a number of legislative changes that affected or will affect the

Board. The Government proclaimed a new a

Sewerage System Regulation in July of 2004. ThisRegulation replaces the existing Sewage DisposalRegulation and provides that the Board will only hearappeals from permits issued for holding tanks. Thenew Regulation came into effect on May 31, 2005.

Effective July 8, 2004, the EnvironmentManagement Act, which established the Board, itsstructure and basic powers and procedures, wasrepealed. At that same time, a new enactment, theEnvironmental Management Act, S.B.C. 2003, c. 53,came into force. Part 8 of the new Act states thatthe Board is continued, and incorporates the Board’s structure, powers and procedures that had previously been set out under the EnvironmentManagement Act.

The new Environmental Management Actalso contains much of what was formerly containedin the Waste Management Act, which was alsorepealed effective July 8, 2004. While most of thedecisions that could be appealed under the WasteManagement Act can still be appealed to the Boardunder the Environmental Management Act, the new Act also allows for appeals of administrativemonetary penalties, an enforcement tool for government officials that was not available underthe Waste Management Act.

Effective December 31, 2004, theIntegrated Pest Management Act, S.B.C. 2003, c. 58,replaced the Pesticide Control Act. Part 4 of theIntegrated Pest Management Act creates a right ofappeal to the Board for persons who are subject todecisions under that Act. Of particular note, thenew Act includes two types of appealable decisions:appeals from orders to use qualified monitors andappeals from administrative monetary penalties.

There were also some amendments to theWater Act, adding provisions to support the GroundWater Protection Regulation, B.C. Reg. 299/2004.Sections 1 to 6 of that Regulation also came intoforce on November 1, 2004. The remainder of theRegulation will come into force in November of2005. The pre-existing appeal provisions in theWater Act were expanded to include matters relatingto ground water.

Finally, effective July 8, 2004, the provisionsof the Administrative Tribunals Appointment andAdministration Act began to apply to the Board.

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Legislative AmendmentsAffecting the Board

Section 11 of the Environment Management Act(up to June 8, 2004) and Part 8 of the

Environmental Management Act (since July 8, 2004)set out the basic powers and procedures of theBoard. Additional detail is provided in theEnvironmental Appeal Board Procedure Regulation.

The Board’s authority over a specificappeal is further defined in the individual statutesand regulations which provide the right of appeal tothe Board. The individual statutes set out the typesof decisions that are appealable to the Board, thetime for appealing the decisions, as well as theBoard’s decision-making powers on the appeal.

In order to ensure that the appeal processis open and understandable to the public, the Boardhas developed the Environmental Appeal BoardProcedure Manual. The manual contains informationabout the Board itself, the legislated procedures thatthe Board is required to follow, and the policies theBoard has adopted to fill in the procedural gaps leftby the legislation.

The following is a brief summary of theappeal process. For more detailed information, acopy of the Board’s Procedure Manual can beobtained from the Environmental Appeal Boardoffice, or from the Board’s website.

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The Appeal Process

Notice of Appeal Received by theEnvironmental Appeal Board

Within 60 days of receiving a complete Notice of Appeal the Board will:

Stay of the decision being appealed may be requested

A pre-hearing conference may be requested by the Board or any of the parties in the appeal

• determine the members who will conduct the appeal• determine whether to hold a written or oral hearing

Appeal Rejected(for lack of jurisdiction)

Notice of AppealDeficient

Establish submissionschedule

Schedule hearing date,time, and location

Statement of Points anddisclosure of documents to be

submitted by all parties accordingto deadlines given by the Board

Hearing

Written Hearing Oral Hearing

Decision

Submissions receivedfrom parties

Decision

Deficiencies corrected

*

* The Board’s authority to issue a stay varies from one statute to the next.

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Due to the recent and significant changes to thelegislation under which the Board derives its

authority, the Board is not in a position to report on the impacts of those changes at this time.Accordingly, the Board will monitor the impactsduring the next reporting period and provide anyrecommendations it may have in the 2005-2006Annual Report.


Recommendations

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The following tables provide information on theappeals filed with the Board, and decisions

published by the Board, during the report period. TheBoard publishes all of its decisions on the merits of an appeal, and most of the important preliminary and post-hearing decisions. The Board also issuesnumerous unpublished decisions on a variety of preliminary matters that are not included in the statistics below.

Between April 1, 2004 and March 31,2005, a total of 81 appeals were filed with the Boardagainst 79 administrative decisions, and a total of93 decisions were published.

April 1, 2004 – March 31, 2005

Total appeals filed 81

Number of administrative decisions appealed 79

Appeals abandoned, withdrawn, rejected, 56 jurisdiction/standing

Hearings held on the merits of appeals Oral hearings completed 28 Written hearings completed 12

*Total hearings held on the merits of appeals 40

Total oral hearing days 66.5

Published Decisions issued Final Decisions

Appeals allowed 5 Appeals, allowed in part 4 Appeals dismissed 39

Total Final Decisions 48 Decisions on preliminary matters 36 Reconsideration 1Consent Orders 6 Decisions on Costs

Costs denied 2 Total Costs Decisions 2

Total published decisions issued 93

*Note: Most preliminary applications and post-hearing applica-tions are conducted in writing. However, only the final hearingson the merits of the appeal have been included in this statistic. �This table provides an overview of the total appeals filed, hear-ings held, and published decisions issued by the Board duringthe report period. It should be noted that the number of deci-sions issued and hearings held during the report period does notnecessarily reflect the number of appeals filed for the same peri-od, because the appeals filed in previous years may have beenheard or decided during the report period.It should also be noted that two or more appeals may be heardtogether.


Statistics

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Appeal Statistics by Act

Appeals filed during report period 9 18 2 4 21 27

Number of administrative decisions appealed 8 17 2 4 21 27

Appeals abandoned, withdrawn, rejected jurisdiction/standing 3 16 2 16 6 13

Hearings held on the merits of appeals Oral hearings 3 1 5 19 Written hearings 3 1 1 7

Total hearings held on the merits of appeals 3 3 2 6 26

Total oral hearing days 4 1 12 49.5

Published decisions issued Final decisions 6 7 5 8 22 Cost Award 1 1 Preliminary applications 3 3 5 25 Reconsideration 1Consent 1 5

Total published decisions issued 9 8 10 14 52 �This table provides a summary of the appeals filed, hearings held and published decisions issued by the Board during the report period, categorised according to the statute under which the appeal was brought.

Integr

ated P

est M

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Health

Act

Enviro

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tal M

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Pestici

de Con

trol A

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Waste M

anage

ment A

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Water A

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life A

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The Board issues hundreds of decisions eachyear, some that are published and others that

are not published. A selection of published decisionshave been summarized below. These decisions wereissued by the Board between April 1, 2004 andMarch 31, 2005. They are organized according tothe statute under which the appeal was filed.

Environmental Management Act

2004-EMA-002(a) Squamish Terminals Ltd. v.Director of Waste Management (District ofSquamish, Third Party)Decision Date: March 22, 2005Panel: Alan Andison

A preliminary issue was raised as towhether the Appellant, Squamish Terminals Ltd.(“Squamish Terminals”) had standing to appeal aDeputy Director’s decision to issue an approval inprinciple (“AIP”) to the District of Squamish. The AIP authorized the District to implement a remediation plan on certain contaminated properties adjacent to lands owned by SquamishTerminals. To have standing, it had to be a “personaggrieved” by the issuance of the AIP.

The Board found that SquamishTerminals would not suffer any harm and, therefore,

could not be properly characterized as a “personaggrieved” by the decision to issue the AIP; accordingly, it had no standing to bring the appeal.

The appeal was dismissed for lack of jurisdiction.

2004-EMA-003(a) British Columbia Power andHydro Authority v. Deputy Director (ImperialOil Limited, BC Rail Ltd., City of Quesnel andShell Canada Products Limited, Third Parties)Decision Date: January 12, 2005Panel: Alan Andison

The British Columbia Power and HydroAuthority (“BC Hydro”) applied for a stay of a decision by the Assistant Director of WasteManagement to approve an amended remediationplan. The amended remediation plan pertained to aremediation order that named BC Hydro, alongwith the Third Parties, as persons responsible forremediating a contaminated site. BC Hydro submit-ted that the Assistant Director’s decision to approvethe remediation plan, as it pertained to BC Hydro,was outside of his jurisdiction given the BC Courtof Appeal’s decision in British Columbia Hydro andPower Authority v. British Columbia (EnvironmentalAppeal Board) 2003 BCCA 436 (hereinafter BCHydro), where it held that BC Hydro was not liablefor contamination arising from the activities of itspredecessor corporations.

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Summaries of EnvironmentalAppeal Board DecisionsApril 1, 2004 ~ March 31, 2005

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The Board found that the BC Hydro casedid not provide sufficient grounds to conclude thatthe Assistant Director’s decision was beyond hisjurisdiction, nor did it provide a basis for issuing a stay.

The application for a stay was denied.

Health Act

2003-HEA-014 Janet Hardin v. EnvironmentalHealth OfficerDecision Date: April 13, 2004 Panel: Don Cummings

Janet Hardin appealed the decision of theEnvironmental Health Officer (“EHO”) to refuse apermit for a sewage disposal system on a parcel of landin Tulameen, BC. The issue in the appeal was whetherthe proposed sewage disposal system would treat theeffluent sufficiently to protect the public health.

The Board agreed with the EHO that the system, as designed, should not be permitted for the property.

The appeal was dismissed.

2003-HEA-018(a) Sheila Condratow v.Environmental Health Officer (Fred Formosa,Third Party)Decision Date: May 17, 2004Panel: Alan Andison

Shelia Condratow appealed the decisionof the EHO to issue a permit for a sewage disposalsystem on a neighbouring parcel of land on SavaryIsland. The Appellant sought an order cancelingthe permit.

The issues in this appeal were whetherthe proposed sewage disposal system would meet setback requirements from a source of water and ahigh water mark, whether erosion of the bank

would result in contamination of tidal waters,whether the Property Owner failed to post notice ofthe permit, and whether the system would protectthe public health. The Appellant also argued, basedon the BC Supreme Court decision in Mark deGoutiere and Cynara de Goutiere v. EnvironmentalAppeal Board and Albaco Industries, [1995] B.C.J. No. 2513, that the EHO had failed to take accountof a neighbour’s intention to relocate a water wellwhen issuing the permit.

The Board found that the only water well within the 100-foot setback distance from thesystem was one that a neighbouring property ownerhad installed after the issuance of the permit and in contravention of section 42 of the SanitaryRegulation. The Board also found that regulatoryrequirements for a high water mark setback do not apply to tidal water. The Board accepted theevidence of the EHO and an engineer that, giventhe high level of treatment in the innovative system, the 60-foot distance to the ocean would bemore than adequate to protect against contamination.The Board found that public notice of the permitwas posted as required by the Sewage DisposalRegulation and that, based on all the evidence, thesewage disposal system would protect public health.The Board found that, in this case, the EHO hadonly preliminary information that a neighbourmight re-locate a well and had no information thatthe new location could affect the permit.


2003-HEA-019(a) Anar Alidina v.Environmental Health Officer Decision Date: December 1, 2004Panel: Alan Andison

Anar Alidina appealed the decision of theEHO to reject a request to reclassify her sewage disposal system. The reclassification was required inorder to increase the number of beds in her private

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health care facility from 7 to 10. In making his decision, the EHO had determined that the facilitywas equivalent to a “nursing home” for the purposesof determining the minimum flow capacity requirements of the sewage system.

The Board found that the facility was notequivalent to a “nursing home.” It also found thatallowing for a 50 percent safety margin, the sewagesystem had the technical capacity to safely acceptthe effluent from a 10-bed facility, provided that theAppellant complied with certain conditions.

The appeal was allowed.

2004-HEA-002(a) and 2004-HEA-003(a) LydiaMattner, Dave and Louise Wiwchar and Fred andDarla Mark v. Environmental Health Officer(Anthony Melvin, Third Party)Decision Date: June 2, 2004Panel: Alan Andison

The Appellants appealed the decision ofthe EHO to issue a sewage disposal system permit toserve a home on a neighbouring lot in Bowser, BC.The system was an innovative system that includeda septic tank, package treatment plant, a VegetativeTertiary Filter, and a holding tank.

The Board concluded that the sewage disposal system would protect the public health.The Board upheld the permit, subject to certainamendments.

The appeals were dismissed.

2004-HEA-007(a) H & F Ventures Ltd. v.Environmental Health OfficerDecision Date: August 5, 2004Panel: Alan Andison

H & F Ventures appealed the decision ofthe EHO to refuse to issue a sewage disposal systempermit for a property in Nanoose Bay, BC.

After the Board convened an appeal hearing, the EHO advised the Board that he had

granted the permit that was the subject of theappeal, and that the Appellant had intended towithdraw the appeal, but had failed to notify theBoard of the withdrawal.


Integrated Pest Management ActNo decisions were issued during the report

period.

Pesticide Control Act

2001-PES-003(b) Josette Wier v. DeputyAdministrator, Pesticide Control Act (Minister ofForests, Morice Forest District, Permit Holder)Decision Date: November 8, 2004Panel: Alan Andison

Following a judicial review of the Board’s2002 decision on Josette Wier’s appeal of a pesticideuse permit, issued by the Deputy Administrator forthe application of monosodium methane arsenate(“MSMA”), the B.C. Supreme Court sent the matter back to the Board with directions (see Wier v. Environmental Appeal Board et. al, 2003BCSC 1441). The Board issued this decision inaccordance with the Court’s direction.

The Board considered the evidence presented during the 2002 hearing in relation to therisks and benefits of using MSMA and alternativemethods to control mountain pine and spruce barkbeetles in the affected areas. The Board found thatthe risks associated with MSMA use under theterms of the permit were mitigated to a reasonablelevel when the permit was amended as originallydirected by the Board. The Board found that costs

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and risks associated with alternative treatmentmethods made those alternatives unreasonable.Accordingly, the Board confirmed the decision ofthe Deputy Administrator to issue the permit, subject to the changes ordered by the Board.


2003-PES-003(a) Nadine Dechiron on behalf ofthe Granby Wilderness Society and the BoundaryNaturalists v. Deputy Administrator, PesticideControl Act (Ministry of Forests, Third Party)Decision Date: June 1, 2004Panel: Alan Andison

Nadine Dechiron, on behalf of theGranby Wilderness Society and the BoundaryNaturalists, appealed the Deputy Administrator’sissuance of an approval of a pest management plan.The approval was issued to the Minister of Forests(the “MOF”). Together, the plan and the approvalauthorize the use of pesticides to control vegetationin cutblocks on Crown land in the BoundaryTimber Supply Area for a five-year term.

The Appellant sought an order reversingthe approval, or, in the alternative, an order addingconditions to protect grizzly forage foods.

The Board reviewed the relevant legislation and case law to determine whether thetest that is applied by the Board when determiningwhether a pesticide use will have an unreasonableadverse effect, is appropriate for evaluating pestmanagement plans. It found that the test was appropriate for evaluating pest management plans.The Board also found that the plan in this case metall statutory requirements for plan content and thatthe Deputy Administrator did not improperly delegate his authority to the MOF when heapproved the plan.

With regard to the question of whetherthe use of pesticides in accordance with the planand the approval would cause an unreasonable

adverse effect, the Board found that the Appellantprovided insufficient evidence to establish that thepesticide use will have an adverse effect on grizzliesas a result of ingesting or directly contacting pesticides. However, the Board found that the pesticide use might have an adverse effect throughthe loss of grizzly bears’ food plants and that the approval does pose some risk to the bears, particularly breeding females. The Board found thatthe plan did not reduce the risk of loss of foodplants to a reasonable level.

The Board ordered the DeputyAdministrator to amend the approval to includecertain conditions to address the risk to grizzlybears. The Board was satisfied that, if the approvalwas so amended, the use of pesticides under the plan and the approval would not have an unreasonable adverse effect to humans or the environment. The Board upheld the remainder ofthe approval.

The appeal was allowed, in part.

2003-PES-012(a); 2003-PES-013(a) RobertStacey on behalf of the Cowichan Beekeepers andStan Reist on behalf of the Nanaimo BeekeepersAssociation v. Administrator, Pesticide ControlAct (British Columbia Minister of HealthServices, Third Party)Decision Date: April 8, 2004Panel: Alan Andison

Robert Stacey, on behalf of the CowichanBeekeepers, and Stan Reist, on behalf of theNanaimo Beekeepers Association, appealed thedecision of the Administrator to issue a pesticideuse permit. The permit authorized the application ofpesticides for the purpose of controlling mosquitosin areas of BC where there was a risk to humanhealth from the West Nile virus. The Appellantsasked the Board to remove the pesticides targetingadult mosquitoes (adulticides) from the permit, or,

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in the alternative, to add various conditions toaddress their concerns regarding the honeybee populations.

The Board found that the Appellants hadestablished that the application of adulticidesauthorized in the permit may have an “adverseeffect” on honeybee populations which would result in damage to the environment. The Boarddetermined, however, that the potential adverseeffect was not unreasonable. Specifically, the Boardfound that the adverse effect to honeybees did not outweigh the intended benefit to the humanpopulation in BC, and the permit set out a measured response based on the level of risk to thepopulation. Nonetheless, the Board ordered that the permit be amended to limit the application ofadulticides to the hours between dusk and dawn.The Board determined that the amendment wouldremove the unnecessary risk of an adverse effect tohoneybees, because mosquitos are most active atnight and honeybees are most active during the day.

The appeals were allowed, in part.

2004-PES-001(a) Jim Fairall v. DeputyAdministrator, Pesticide Control ActDecision Date: July 14, 2004Panel: Lynne Huestis

Jim Fairall appealed the DeputyAdministrator’s decision to revoke Mr. Fairall’s pesticide applicator certificate and restrict his rightto apply for a new certificate.

The Deputy Administrator revoked thecertificate based on his finding that Mr. Fairall had:1) held himself out as someone with a pest controlservice licence and liability insurance when he hadneither; 2) offered services which required him tohave a licence; and, 3) ignored warnings from theDeputy Administrator that he needed both alicence and liability insurance.

The Board found that Mr. Fairall’s advertising gave the impression that he was licensedby the provincial government. The Board furtherfound that he had offered to apply pesticides on afee for service basis. The Board found that the revocation was an appropriate enforcement action.


2004-PES-002(a), 2004-PES-004(a), 2004-PES-005(a) Ecological Health Alliance, GordonWatson and Nonna Weaver v. DeputyAdministrator, Pesticide Control Act (Ministry ofForests, Third Party)Decision Date: April 14, 2004Panel: Alan Andison

The Appellants appealed the issuance of apesticide use permit by the Deputy Administrator.The permit authorized the use of Foray 48B, withthe active ingredient Bacillus thuringiensis Berlinerssp Kurstaki (“BTK”), in a spray program designedto eradicate localized populations of the NorthAmerican gypsy moth in Saanich and Delta, BC.The Appellants sought an order canceling the permit, or, in the alternative, an order varying thepermit so that it would not allow aerial pesticideapplications or other pesticide applications on people and their homes.

The Board found that the use of Foray48B, as authorized by the permit, would have anadverse effect on the environment as it would killnon-target moths and butterflies, and may pose arisk of an adverse effect on the health of some people residing within the spray zones. However,the Board found that the adverse effects of the proposed spray program were not unreasonable inthe circumstances of the permit. The Board foundthat the adverse effects did not outweigh the potential economic harm to the provincial economyif a gypsy moth population became established and

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resulted in the imposition of trade sanctions onproducts exported from BC.


Waste Management Act

2002-WAS-025(a), 2003-WAS-004(a)Houweling Nurseries Limited v. District Directorof the Greater Vancouver Regional District(Roger Emsley, Third Party) (Corporation ofDelta, Participant)Decision Date: April 26, 2004Panel: Alan Andison, Dr. Robert Cameron,

Phillip WongHouwelling Nurseries Limited (“HNL”)

appealed two separate decisions by the DistrictDirector of Air Quality: a pollution preventionorder issued to HNL, and the refusal of HNL’s application to amend its air quality permit whichauthorized the discharge of air emissions from HNL’sgreenhouse operation located in Delta, BC. HNLsought to have the Board reverse the order. HNLalso submitted that the Board had jurisdiction overthe appeal of the refusal to amend the permit.

The issues in this appeal were whetherthe Board had jurisdiction under sections 43 and 44of the Waste Management Act (the “Act”) to hear anappeal of a refusal to amend a permit, and whetherthe Board should reverse the order.

The Board determined that the DistrictDirector’s refusal to amend the permit was not anappealable decision within the meaning of sections43 and 44 of the Act. Accordingly, the Board didnot have jurisdiction over that appeal, and it wasnot prepared to make any findings on the merits ofthe refusal to amend the permit.

The Board determined that the decisionto issue the order should be reversed. The Board

found that there was insufficient evidence demon-strating that HNL was out of compliance with theAgricultural Waste Control Regulation or the permit.In addition, the Board found that there was insufficient evidence, on the date the order wasissued, to demonstrate that the District Director had reasonable grounds to conclude that HNL’soperations were likely to cause pollution of theenvironment.

The appeal of the refusal to amend thepermit was denied for lack of jurisdiction. Theappeal of the order was allowed.

2003-WAS-021(b), 2003-WAS-022(a), 2003-WAS-023(a) Myrus James on behalf of thePenelakut First Nation Elders, Donna Martin onbehalf of the Salt Spring Island Residents forResponsible Land Use, and Canadian SablefishAssociation v. Regional Waste Manager (SablefinHatcheries Ltd., Third Party)Decision Date: November 17, 2004Panel: Alan Andison, Dr. Robert Cameron,

Robert F. GerathMyrus James, on behalf of the Penelakut

First Nation Elders (the “Elders”), Donna Martin,on behalf of the Salt Spring Island Residents forResponsible Land Use (the “Residents”), and EricWickham, on behalf of the Canadian SablefishAssociation (the “CSA”), filed separate appeals ofthe Regional Waste Manager’s decision to issue anapproval to Sablefin Hatcheries Ltd. (“Sablefin”) todischarge effluent to the land, from a land-basedfish hatchery at Walker Hook on Salt Spring Island.

Walker Hook (known to the Elders asSyuhe’mun) is a designated archeological site containing a large shell midden. During constructionof the injection wells that would receive the effluent,the remains of several First Nations individuals werediscovered. The Elders claimed a number ofAboriginal rights related to the site, and appealed

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on the basis that they were not adequately consultedprior to the issuance of the approval and that theapproval unjustifiably infringed their Aboriginalrights. The Residents appealed on the grounds that there was inadequate consultation with localresidents and that the effluent discharge will causean adverse effect on the sensitive environment ofWalker Hook. The CSA appealed on the basis thatthe discharge of effluent may pollute fish habitatand threaten wild sablefish stocks.

The Board found that the informationrelied on by the Regional Manager adequatelyassessed the potential risks associated with the discharge, with the possible exception of the risksassociated with marine microbes that may be present in the discharge. In addition, the Boardfound that the Regional Manager appropriately considered other public concerns, such as site sensitivity, and that the Regional Manager had nojurisdiction to consider the potential of the site foralternate zoning as argued by the Residents.However, the Board decided to further consider therisks associated with marine microbes that may bepresent in the effluent, based on information thatwas provided to the Board but was not available to the Regional Manager. In so doing, the Boardfound that marine microbes in the effluent would bediluted to a concentration that poses no threat tohumans or the marine environment, including wild sablefish.

Regarding consultation with the FirstNations, the Board considered legal authorities onthe duty to consult and found that the RegionalManager conducted adequate and meaningful consultations with the affected First Nations beforehe issued the approval.

The Board also considered whether thedischarge of effluent in accordance with theapproval would unjustifiably infringe the Aboriginal

rights asserted by the Elders. The Board found thatthe discharge would not cause a prima facie infringe-ment of any Aboriginal right to collect shellfish,fish or other foods from the areas aroundSyuhe’mun. In addition, the Board found that theElders did not provide sufficient evidence to provetheir claim of Aboriginal rights to Syuhe’mun as asacred burial ground, and, even if those rights hadbeen proven, the effluent discharge would not causea prima facie infringement of those rights.

Sablefin applied for an order of costsagainst the Elders. The Board found that costs werenot warranteed in the circumstances.

The appeals were dismissed. Sablefin’s application for costs was denied.

2003-WAS-025(a) Ermes Culos v. AssistantRegional Waste Manager (Wastech ServicesLimited., Third Party)Decision Date: August 23, 2004Panel: Dr. Robert Cameron

Ermes Culos appealed a decision of theAssistant Regional Waste Manager to amend sections of an operational certificate held byWastech Services Ltd. and the Village of CacheCreek. The certificate authorizes Wastech ServicesLtd. and the Village of Cache Creek to managesolid waste at a landfill. The amendment includedauthorization for construction of a berm that wouldincrease the overall capacity of the landfill.

The Appellant argued that the amendmentwas made in contravention of a requirement in theregional district’s solid waste management plan(“SWMP”) that there be public consultation priorto a “significant increase” in the rate of depositionof waste from outside the district. He also arguedthat increased waste volumes would result inchanges to groundwater quality outside of the landfill boundaries and that the existing network ofobservation and monitoring wells was not sufficient.

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The Board found that, while the additionallandfill capacity might result in the landfill contain-ing a greater amount of waste imported from outsidethe district, the public consultation requirements inthe SWMP are only triggered if there is a proposalto increase the rate of such deposition. In this case,the certificate amendment does not change the rateof deposition. The Board found that there was noevidence that additional waste volumes authorizedby the amendment would result in groundwaterquality being impaired, but the Board also foundthat the proposed expansion might result in someincrease in the volume of leachate produced.Therefore, the Board considered the possibility of an undetected leachate pathway to the river. The Board found that the evidence indicated that it is highly improbable that a break in bedrock oranother geological formation was creating aleachate pathway to the river. The Board furtherfound that the existing monitoring wells were located such that they will provide the necessarywarning of potential declines in groundwater quality.


2004-WAS-004(a) Ajah Azreal v. RegionalWaste Manager (Nexterra Energy Corp., ThirdParty)Decision Date: June 14, 2004Panel: Alan Andison

Ajah Azreal appealed an approval issuedby the Regional Manager to Nexterra Energy Corp.The approval authorizes Nexterra to discharge emissions from a research and development gasification plant in Kamloops.

The Regional Manager and Nexterra filedseparate applications to have the Appellant’s appealdismissed on the basis that he did not have standingto appeal as a “person aggrieved.” Both parties submitted that the Appellant lived more than 20 kilometres away from the gasification plant site

and, therefore, he would not be personally affectedby the approval.

While the Board found that theAppellant was not required to provide definitiveproof that he will be harmed by the approval, the Board found that he did not disclose enoughevidence for the Board to reasonably conclude that his personal interests are being prejudiciallyaffected. The Board found that all but one of hisgrounds of appeal related to the potential effects ofthe approval on people other than himself. TheBoard found that the Appellant did not provide sufficient evidence to support his claim that theemissions would affect him at his home or when hetravelled through Kamloops.

The Board found that the Appellant didnot have standing to appeal the approval as he wasnot a “person aggrieved.”


2004-WAS-007(a) 427958 B.C. Ltd. (dba theSuper Save Group of Companies) v. DeputyDirector of Waste Management (BC Hydro andPower Authority, Applicant, Ocean ConstructionSupplies Ltd., Third Party)Decision Date: November 2, 2004Panel: Alan Andison

This was a decision on two preliminaryquestions of jurisdiction.

427958 B.C. Ltd. (“Super Save”) appealedthe decision of the Deputy Director to issue anapproval in principle (“AIP”) to the BC Hydro andPower Authority (“BC Hydro”). The AIP pertainedto a proposal to remediate certain contaminatedlands held by BC Hydro and adjacent lands held bythe Federal government. BC Hydro challengedSuper Save’s standing to bring the appeal on thegrounds that it was not a “person aggrieved” by the AIP, and that the AIP did not constitute a

“decision” under section 43 of the WasteManagement Act.

The Board found that, in issuing the AIP,the Deputy Director did not make a decision thatprejudicially affects Super Save’s interests. TheBoard found that Super Save was not aggrieved byanything in the AIP, nor did it provide evidencethat it would be prejudicially affected by the proposed remediation work.

The Board found that Super Save was nota “person aggrieved” by the decision to issue theAIP and, therefore, had no standing to bring theappeal.


Water Act

2002-WAT-028(b) V.C. Richard Baravelle v.Regional Water Manager (Anne Evelyn Posgateand David Lancaster, Third Parties)Decision Date: June 8, 2004Panel: Cindy Derkaz, Paul Love, David Thomas

Mr. Baravelle appealed the RegionalWater Manager’s decision to issue a conditionalwater licence to the neighbouring Third Parties,authorizing the diversion of 500 gallons per day for domestic purposes from Alymer Creek nearNelson, BC. The Appellant argued that there wasinsufficient flow in the creek to support a newlicence, and that the Regional Manager should have considered an alternate source of water fromanother nearby creek. The Appellant also arguedthat the Regional Manager’s decision was based onoutdated and insufficient flow information. TheAppellant asked the Board to rescind the licence.

The Board found that, even though someof the most complete flow records for the creek were

between 80 and 50 years old, in combination with anumber of spot flow measurements taken in the pastdecade, there was an adequate basis for the RegionalManager’s decision. The Board found that theAppellant failed to prove that there is insufficientflow in the creek to support the issuance of thelicence. The Board also found that, given his assessment that there are adequate flows to supporta licence on Alymer Creek, the Regional Managerhad no obligation to consider an alternate source ofwater for the licence.


2003-WAT-009(b) John Zahradnik v. AssistantRegional Water Manager (Cooks’ Ferry IndianBand and Michael Rice, Third Parties) (Markkuand Julie Toijanen, Participants)Decision Date: May 5, 2004Panel: Cindy Derkaz

The Cook’s Ferry Indian Band (the“Band”) was a third party in the appeal of JohnZahradnik against the decision of the RegionalManager to deny Mr. Zahradnik an irrigationlicence. The Board upheld the Regional Manager’sdecision and dismissed the appeal (see: Zahradnik v.Assistant Regional Manager (Appeal No. 2003-WAT-009(a), February 27, 2004). The Band applied tothe Board for costs against Mr. Zahradnik.

The Band submitted that the Boardshould exercise its discretion to award the Band all or a portion of its costs on the basis that a significant amount of Mr. Zahradnik’s appeal wasfrivolous or vexatious, and that Mr. Zahradnikunnecessarily delayed the proceedings. The Bandfurther asserted that one of Mr. Zahradnik’s submissions was a vexatious tactic that caused stressto the Band’s members.

The Board found that Mr. Zahradnik’sappeal raised a serious justiciable issue, had a reasonable prospect of success and was not brought

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maliciously or with the intent to harass or annoy.The Board was concerned about allegations Mr.Zahradnik made about the Band and about publicofficials and the discharge of their duties under theWater Act. The Board noted that Mr. Zahradnik didnot substantively pursue these allegations and foundthat, on the whole, Mr. Zahradnik’s conduct did notwarrant an award of costs against him.

The application for costs was denied.

2003-WAT-010(a); 2003-WAT-011(a); 2003-WAT-012(a) & 2003-WAT-013(a) John Moon v.Assistant Regional Water Manager (Departmentof National Defence, Third Party)Decision Date: June 15, 2004Panel: Paul Love

John Moon appealed four decisions of theRegional Manager refusing applications for waterlicences to divert and store water for irrigation. The Appellant was not satisfied that water licencingpersonnel had handled his applications “in an independent and objective manner.”

The Board found that the Appellant didnot provide evidence that water licencing personnelhad acted in a biased or unfair manner. It also notedthat the licencing authority had completed a WaterAllocation Plan for the affected watershed and hadconcluded that there were insufficient flows to support the issuance of new licences. The Boardfound that there was not sufficient evidence torebut the findings in the Water Allocation Plan.The Board also noted that the Appellant had beenusing less water than his existing licences permittedhim to use; that multi-year storage would pose aradical departure from provincial water policy andpractice for irrigation; and that the Board could notorder the Regional Manager to undertake the policydevelopment and significant expenditures thatwould be involved to consider multi-year storage.The Board further found that the Appellant had not

presented sufficient evidence to justify the requestedchange in priority dates.


2003-WAT-018(a) Watutco Enterprises Ltd. andPacific Playground Holdings Ltd. v. Deputy WaterComptrollerDecision Date: March 4, 2005Panel: Alan Andison

Watutco Enterprises Ltd. and PacificPlayground Holdings Ltd. filed a joint appealagainst the Deputy Comptroller’s decision, refusingto apportion rights between Watutco and PacificPlayground under a conditional water licence thatwas issued solely to Watutco. The DeputyComptroller applied to have the appeal dismissedon the grounds that the Board does not have jurisdiction to grant an apportioned licence becausethe legal principle of estoppel prevents theAppellants from pursuing the remedy that they wereseeking. Specifically, he argued that the Appellantswere estopped from appealing the apportionmentdecision because of their prior statements or conduct regarding a previous application to havethe same licence reinstated. The DeputyComptroller also challenged Pacific Playground’sstanding to appeal the decision.

The Board found that its governing legislation provides it with the power to determinequestions of law, including questions of estoppel inthe context of the Water Act. However, it found onthe facts that Watutco and Pacific Playground were not estopped from making the application forapportionment.

The Board also found that PacificPlayground had standing to appeal as a person whowas subject to the order of the Deputy Comptroller.

The applications to dismiss the appeal onthe basis of estoppel and on the basis of lack ofstanding were dismissed.

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2004-WAT-008(a) Don Harvey v. AssistantRegional Water Manager (Donna May Kennedy,Garry Schmitt, Joseph and Jessica Klein, ThirdParties)Decision Date: November 19, 2004Panel: Don Cummings

Don Harvey appealed the RegionalManager’s refusal to issue him a water licence toconserve water in an unnamed pond. TheAppellant sought the licence in order to preservethe pond for wildlife, and to prevent furtherlicensed or unlicensed use of water from the pond.

The Board found that because theAppellant did not seek to construct works, use ordivert water, there was no requirement for a licenceunder the Water Act. In addition, there was no basisto issue a licence for “conservation purposes.”Further, the Board noted that there was insufficientwater in the watershed to support further licensing,and that sections 41(1)(s) and 41(1)(o) of theWater Act prohibit the unlawful removal of waterfrom the pond.


2004-WAT-010(a) Thomas and Carolyn Baird v.Assistant Regional Water Manager (David andKaren Peterson, Edward and Donna Salle,Winbury Mortgage Corp. and Upton CapitalCorp., Third Parties)Decision Date: August 19, 2004Panel: Alan Andison

Thomas and Carolyn Baird appealed theRegional Manager’s decision to reappoint a waterbailiff. The Appellants also opposed the terms ofthe reappointment order because there were no current engineer’s directions nor a defined term ofappointment.

The Board found that the reappointmentwas reasonable and that the person reappointed wasa reasonable choice in the circumstances. The

Board further found that the 2002 engineer’s directions to the water bailiff had not expired, andthat new directions were not required as part of thereappointment unless the engineer believes that circumstances require their revision.


2004-WAT-012(a) Irene Hildebrandt v. AssistantRegional Water MangerDecision Date: March 18, 2005Panel: Don Cummings

Irene Hildebrandt appealed an order ofthe Regional Manager, directing her to remove anunauthorized retaining wall from the foreshore ofOkanagan Lake, and to restore the foreshore to itsoriginal condition.

Construction of the wall took place belowthe lake’s natural boundary, and was in a “stream” asdefined in the Water Act. Accordingly, the Boardfound that the Appellant lacked the requiredlicence to construct the wall, which must beobtained prior to making changes in and about astream. While the Board agreed that the wall, byitself, would have a minimal impact on the riparianenvironment, the Board found that the sum ofnumerous small intrusions could aggregate into asignificant negative impact. Therefore, the Boardfound that it was reasonable for the RegionalManager, in exercising his authority under theWater Act, to order removal of the wall and restoration of the foreshore. The order was confirmed.


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Wildlife Act

2003-WIL-003(a) Brian Charlton v. RegionalManagerDecision Date: April 27, 2004Panel: Alan Andison

Brian Charlton appealed the RegionalManager’s decision to deny his application to have a large area, adjacent to his Kootenay region guideterritory, assigned to him as a fractional guide area.

The Appellant submitted that theRegional Manager engaged in speculation and madeassumptions about the interests of aboriginal peopleand resident hunters, and that the RegionalManager failed to consider the large populations ofa number of wildlife species in the area, and thepotential economic and conservation benefits thatwould result from creating a fractional guide area.

The Board found that the Appellant didnot present sufficient evidence to justify having theRegional Manager assign him a fractional guidearea. The Board found that the Regional Managerdid not act on speculation or assumptions aboutlocal interests and acted in accordance with his duty to consider local First Nation’s and residenthunter’s interests when considering the Appellant’sapplication. The Board further found that theRegional Manager considered and balanced theissues of local animal populations, potential conflicts between resident and non-resident huntersand the potential economic benefit of creating afractional guide area when he denied the application.


2003-WIL-004(a) Robert Fontana v. RegionalManagerDecision Date: April 27, 2004Panel: Alan Andison

Robert Fontana appealed the decision ofthe Regional Manager to issue him a quota of fourbull moose for 2003 and a three-year allocation ofsix bull moose. He sought to increase his three-yearallocation to nine bull moose.

On the evidence presented, the Boardfound that an increase in quota and allocation forthis Management Unit would be detrimental to themoose population. The Board also found that thedistribution of allocation and quota requested by theAppellant would result in a number of other guideoutfitters having their allocations reduced to zero,which would be harmful to the guiding industry as a whole.


2003-WIL-004(b), 2003-WIL-007(a), 2003-WIL-009(a) 2003-WIL-011(a), 2003-WIL-012(a), 2003-WIL-013(a) 2003-WIL-016(a)Robert Fontana, Marcel Gregori, HarryLeuenberger, Marty Lightburn, StevenLeuenberger, Astrid Faiers, Donald Wolfenden v.Regional ManagerDecision Date: April 27, 2004Panel: Alan Andison

The Appellants filed separate appealsagainst the three-year allocations for mountaingoats issued by the Regional Manager. All of theAppellants sought either an increase in their allocation or sought to have their allocationrestored to a previous level.

The Board found that, with the exceptionof Mr. Fontana and Mr. Wolfenden, the Appellantsdid not provide sufficient evidence to justify anincrease in their allocations. The Board found thatthe Ministry biologist was sufficiently experienced

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to conduct the scientific work associated with setting the allocations, and that the RegionalManager acted reasonably in relying on this work.The Board further found that, with the exception ofthe population estimates for Mr. Fontana’s and Mr. Wolfenden’s guiding territories, the informationused by the Regional Manager was the best available at the time and provided a reasonablebasis for his allocation decisions.

With regard to Mr. Fontana and Mr. Wolfenden, the Board found that the Ministry’sestimates of the mountain goat population in theirguide areas were not based on the best availabledata. In these cases, the Board found that Mr.Fontana and Mr. Wolfenden’s observations of thenumber of goats in their territories were credibleand more accurate than the Ministry’s estimates.The Board found that the evidence presented by Mr. Fontana and Mr. Wolfenden justified arestoration of their three-year allocations to theprior levels.

The Board accepted the Ministry’s evidence of a general decline in the region’s mountain goat population since 1994. The Boardfound it was reasonable for the Regional Managernot to apply the transfer policy in those circum-stances, and further found that application of thepolicy without considering regional populationtrends may be contrary to the Ministry’s objective of conserving the mountain goat population andmanaging the resource for the benefit of guide outfitters and other stakeholders.

The Board allowed the appeals of Mr. Fontana and Mr. Wolfenden.

The appeals of Messrs. Gregori,Leuenberger, Lightburn, Leuenberger, and of Ms.Faiers were dismissed.

2003-WIL-006(a) Mike Christensen v. RegionalManager; and

2003-WIL-008(a) Brian Charlton v. RegionalManager; and

2003-WIL-015(a) Albert Cooper v. RegionalManager; and

2003-WIL-023(a) David Beranek v. RegionalManagerDecision Dates: April 27, 2004Panel: Alan Andison

In four separate appeals and four separatedecisions, the Board considered the mountain goatquotas and three-year allocations issued by theRegional Manager to these Appellants. All of theAppellants sought to increase their three-year allocations.

The Board found that the Appellants provided insufficient evidence to justify an increasein their allocations.

The Board accepted the Ministry’s evidence of a decline in the region’s mountain goatpopulation and found that the population estimatesused by the Regional Manager were based on thebest available information and provide a reasonablebasis to calculate the Appellants’ quotas and allocations. The Board further found that it was reasonable for the Regional Manager not to applythe transfer policy and that, application of the policy without considering regional populationtrends, may be contrary to the Ministry’s objectiveof conserving the mountain goat population andmanaging the resource for the benefit of guide outfitters and other stakeholders.


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2003-WIL-025(a) Robert Milligan v. RegionalManagerDecision Date: April 27, 2004Panel: Lorraine Shore

Robert Milligan appealed the decision ofthe Regional Manager to allocate him a quota ofeight antlered moose in two separate areas of hisguide territory in the Skeena region. The Appellantsought to substantially increase his moose quota.

The Board held that the Appellant produced no evidence to demonstrate that theMinistry’s calculations of the number of mooseavailable for harvest were incorrect, or that the allocation of moose among user groups should bevaried.


2004-WIL-016(a) Robert Micatovich v. DeputyDirectory of Wildlife Decision Date: November 19, 2004Panel: Robert Wickett

Robert Micatovich appealed a decision ofthe Deputy Director to cancel his hunting licenceand to declare him ineligible to hunt or obtain ahunting licence for two years. The decision wasbased on a finding that the Appellant had exceededhis bag limit for mule deer and attempted to misleadConservation Officers by telling them that anotherperson had shot the deer.

The Appellant appealed on the groundsthat the penalties imposed by the Deputy Directoramounted to “double jeopardy,” because he hadalready been convicted in Provincial Court of threeoffences arising from the incident, and had beensentenced to a one-year period of ineligibility.

The Board found that the Appellant’sbehavior required both specific and general deterrence, and the punishment imposed by theDeputy Director was appropriate. On the issue of double jeopardy, the Board held that the

administrative penalty was imposed to ensure theproper management and conservation of wildlife,rather than as a punishment for the commission ofan offence. The Board found that the processes fordetermining judicial and administrative penaltiesare separate and there is no double jeopardy.

The Board also considered the delay inimposing the licence cancellation and period ofineligibility. It found that there was no prejudiceresulting from the delay, and that the Appellant’sright to natural justice had not been breached.


2004-WIL-017(a) Alan Adcock v. RegionalEnvironmental Stewardship Manager Decision Date: August 20, 2004Panel: Alan Andison

Alan Adcock appealed a decision of theRegional Manager who refused to issue a permit forthe possession of the carcass of a mature bald eaglethat Mr. Adcock had found on a highway.

On a review of the legislation, the Boardfound that a Regional Manager may issue a permitallowing a person to possess wildlife for educational,scientific, ceremonial or societal purposes, or a permit transferring the right of property in deadwildlife from the government to a person. However,under the Permit Regulation, the Regional Managermust not issue a permit transferring the right ofproperty in an eagle (or an eagle carcass), except toan educational institution or scientific organization.

The Appellant’s application was not foran education institution or scientific organization,and his purpose for possessing the eagle was person-al. Therefore, the Regional Manager, and the Board,had no jurisdiction to issue a permit for personalpossession of an eagle carcass.


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2004-WIL-026(a) Anthony Richardson v.Deputy Directory of Wildlife Decision Date: October 15, 2004Panel: Robert Wickett

Anthony Richardson appealed the DeputyDirector’s decision to cancel his hunting licence anddeclare him ineligible to hold a licence for a periodof one year. Mr. Richardson mistakenly killed a grizzly bear in a closed area while hunting with ablack bear licence.

The Board agreed with the DeputyDirector that the Appellant did not exercise appropriate care in identifying his kill. It found thata licence cancellation was appropriate, and that theone-year period was not excessive.

The Board also considered whether it wasunfair to impose the period of ineligibility, giventhat the Deputy Director’s decision was issuedalmost four years after the Appellant was convictedof hunting wildlife not within the open season. TheBoard found that the delay in issuing the DeputyDirector’s decision was excessive and unreasonable.However, there was no evidence that the delay hadseriously prejudiced the Appellant. Therefore, theBoard found that the delay did not breach the principles of natural justice.


2004-WIL-028(a), 030(a), 032(a), 033(a),034(a) Darwin Cary, Dale Drinkall, FrankSimpson, Arthur Thompson, and David Weins v.Regional Wildlife Manager (B.C. WildlifeFederation, Participant)Decision Date: August 16, 2004Panel: Alan Andison

The Appellants separately appealed thedecisions of the Regional Manager to reduce theirstone sheep quotas for 2004. The hearing was totake place in Fort St. John. The Appellants appliedto have the appeal hearing held in Victoria.

The Board noted that its general policy isto convene a hearing in the location closest towhere the subject matter of the appeal arises; in this case, Fort St. John. The Board also consideredthe interests of the local public as well as the interests of the public in the rest of the province. It concluded that the most appropriate location forthe hearing was Fort St. John.

The application for a hearing venuechange was denied.

2004-WIL-035(a) Tom Kyriakos v. DeputyDirectory of Wildlife Decision Date: October 19, 2004Panel: Alan Andison

Tom Kyriakos appealed a decision of theDeputy Director to cancel his angling licence anddeclare him ineligible to hold a licence for a periodof two years. The decision was based on a findingthat the Appellant had been ice-fishing with morethan one line in a lake contrary to the BritishColumbia Sport Fishing Regulations, a regulationunder the federal Fisheries Act.

The Board agreed with the DeputyDirector that a cancellation was both appropriateand warranted. However, the Board found that theperiod of ineligibility was excessive, and reduced itto one year.

The appeal was allowed, in part.

2004-WIL-036(a) Archie Gairdner v. RegionalManager Environmental Stewardship (JudyDuchesne, Third Party)Decision Date: December 2, 2004Panel: Lorraine Shore

Archie Gairdner appealed a decision ofthe Regional Manager to rescind a relinquishmentof Trapline 749T011, which resulted in the traplinebeing re-registered to both Mr. Gairdner and JudyDuchesne. Mr. Gairdner sought an order reversing

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the Regional Manager’s decision, and re-registeringthe trapline in his name alone.

The Board found that the relinquishmentform was short and unambiguous. The Board concluded that it was not likely that anyone readingit would have been mislead as to its purpose. The Board confirmed the relinquishment and there-registration.


2004-WIL-038(a) Ronald Traverse v. DeputyDirector of WildlifeDecision Date: January 31, 2005Panel: Lynne Huestis

Ronald Traverse appealed a decision ofthe Deputy Director cancelling his angling licenceand prohibiting him from obtaining an anglinglicence for a five year period. Mr. Traverse askedthat the Board shorten the prohibition period tofour years.

The Board found that the length of theprohibition imposed on the Appellant was not comparable to the four-year prohibition imposed onanother individual who was involved in the sameillegal fishing incident that led to the DeputyDirector’s decision. The Board found that there wasno evidence to explain the difference in the lengthof the prohibitions, and that it was unclear as towhy age was not considered in the Appellant’s case, but was considered in the case of the otherindividual. The Board determined that a greaterdeterrence was not required in the case of theAppellant, and that the length of the prohibitionimposed on him should be reduced to four years.

The appeal was allowed.

2004-WIL-043(a) C. Edward Harder v. RegionalWildlife Manager Environmental Stewardship Decision Date: January 20, 2005Panel: Alan Andison

C. Edward Harder appealed the RegionalManager’s decision to refuse a permit for the possession of a great gray owl carcass, valued inexcess of $200. Mr. Harder asked that the decisionbe set aside, and that he be issued a permit to possess the owl or a permit granting a right of property in the owl.

The Board held that the Appellant didnot qualify for a possession permit under the PermitRegulation.


2004-WIL-044(a) Matthew Ryan Willox v.Regional Manager Decision Date: January 26, 2005Panel: Alan Andison

Matthew Ryan Willox appealed theRegional Manager’s decision to refuse a permit forthe possession of a bald eagle carcass.

The Board held that the Appellant didnot qualify for a possession permit under the PermitRegulation.


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North Fraser Harbour Commission andGeneral Chemical Canada Ltd. v.Attorney General of British Columbia,Canadian Pacific Railway, DeputyDirector of Waste Management andBritish Columbia Hydro and PowerAuthority (Friends of the Earth, GeorgiaStrait Alliance, T. Buck SuzukiEnvironmental Foundation and WestCoast Environmental Law Association,Interveners)

Decision Date: January 20, 2005Court: S.C.C., McLachlin C.J., Major, Bastarache,

Binnie, LeBel, Deschamps, Fish, Abella andCharron, JJ.

Cite: 2005 SCC 1This was an appeal from a judgment of

the British Columbia Court of Appeal (2003 BCCA436). The majority decision of the Court of Appealreversed the judgment of the British ColumbiaSupreme Court (2000 BCSC 638), which hadupheld the decision of the Environmental AppealBoard ([1999] B.C.E.A. No. 57 (QL)). The Boardhad found that the British Columbia Hydro andPower Authority (“BC Hydro”) could be named to aremediation order requiring the clean up of a sitewhich had been contaminated by BC Electric, apredecessor company. The Supreme Court of

Canada allowed the appeal, effectively upholdingthe original decision of the Board.

As background, BC Hydro was createdout of the amalgamation of B.C. Electric and twoother companies by way of the AmalgamationAgreement, which was attached as an appendix to,and ratified by, the Power Measures Act, 1966,S.B.C. 1966, c. 38. Under the AmalgamationAgreement, BC Hydro was to be liable for theobligations and liability of predecessor corporations“immediately before amalgamation.” One of thecentral issues before the Board and the courts waswhether BC Hydro could be made subject to aremediation order under the Waste Management Actby reason of B.C. Electric’s conduct between 1920-1957, which created a contaminated site. The Act fixes liability for site contamination on“responsible persons”, defined to include previousowners of the site and persons who had caused thesite to be polluted.

In allowing the appeal, the SupremeCourt of Canada adopted the dissenting reasons of Justice Rowles at the Court of Appeal. RowlesJ.A. held that, by virtue of the AmalgamationAgreement, BC Hydro became fixed with the liabilities to which B.C. Electric would have beensubject to had it not amalgamated with the otherentities. She found that the words “immediatelybefore the amalgamation” did not have the effect of


Summaries of Court DecisionsRelated to the Board

limiting BC Hydro’s legal responsibility. Rather,those words simply establish that, from the time ofthe amalgamation, the new amalgamated enterprisereplaces its predecessors. She held that the effect of the amalgamation was to continue the three prior entities as one combined entity and, uponamalgamation, BC Hydro assumed the responsibilitiesof each of the three entities of which it was comprised, including B.C. Electric.

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32

There were no orders by Cabinet during thisreport period concerning decisions by the

Board.


Summaries of Cabinet DecisionsRelated to the Board

33

Reproduced below are relevant provisions fromeach of the statutes governing the Board, and

the appeals to the Board, that were in force duringthe report period.

Environment Management Act [Repealed by the Environmental Management Act, SBC 2003, c. 53, s. 146, effective July 8, 2004 (B.C. Reg. 317/2004).]

Environmental Appeal Board

11 (1) The Lieutenant Governor in Councilmust establish an Environmental AppealBoard to hear appeals that under the provisions of any other enactment are tobe heard by the board.

(2) In relation to an appeal under anotherenactment the board has the powers givento it by that other enactment.

(3) The board consists of a chair, one or morevice chairs and other members theLieutenant Governor in Councilappoints.

(4) The Lieutenant Governor in Council may (a) appoint persons as temporary

members to deal with a matter beforethe board, or for a period or duringcircumstances the LieutenantGovernor in Council specifies, and

(b) designate a temporary member to actas chair or as a vice chair.

(5) A temporary member has, during the period or under the circumstances or forthe purpose for which the person isappointed as a temporary member, all thepowers of and may perform all the dutiesof a member of the board.

(6) The Lieutenant Governor in Council maydetermine the remuneration and expensespayable to the members of the board.

(7) The chair may organize the board intopanels, each comprised of one or moremembers.

(8) The members of the board are to sit (a) as a board, or (b) as a panel of the board.

(9) If members sit as a panel, (a) 2 or more panels may sit at the same

time, (b) the panel has all the jurisdiction of

and may exercise and perform thepowers and duties of the board, and

(c) an order, decision or action of thepanel is an order, decision or action ofthe board.

APPENDIX I

Legislation and Regulations

(10)The number of members that constitute aquorum of the board or a panel may be setby regulation of the Lieutenant Governorin Council.

(11)The board, a panel and each memberhave all the powers, protection and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

(12)In an appeal, the board or a panel (a) may hear any person, including a

person the board or a panel invites toappear before it, and

(b) on request of (i) the person, (ii) a member of the body, or (iii)a representative of the person or

body, whose decision is the subject of theappeal or review, must give that person or body full party status.

(13)A person or body that is given full partystatus under subsection (12) may (a) be represented by counsel, (b) present evidence, (c) where there is an oral hearing, ask

questions, and (d) make submissions as to facts, law and

jurisdiction. (14)A person who gives oral evidence may be

questioned by the board, a panel or theparties to the appeal.

(14.1)The appeal board may require the appellant to deposit with it an amount ofmoney it considers sufficient to cover allor part of the anticipated costs of therespondent and the anticipated expensesof the appeal board in connection withthe appeal.

(14.2)In addition to the powers referred to in subsection (2) but subject to the

regulations, the appeal board may makeorders for payment as follows: (a) requiring a party to pay all or part

of the costs of another party in connection with the appeal, as determined by the appeal board;

(b) if the appeal board considers that the conduct of a party has been vexatious, frivolous or abusive, requiring the party to pay all or partof the expenses of the appeal board inconnection with the appeal.

(14.3)An order under subsection (14.2) may include directions respecting the disposition of money deposited under subsection (14.1).

(14.4)If a person or body given full party statusunder subsection (12) is an agent or representative of the government, (a) an order under subsection (14.2) must

not be made for or against the personor body, and

(b) an order under subsection (14.2)(a)may instead be made for or againstthe government.

(14.5)The costs required to be paid by the government under an order under subsection (14.4)(b) must be paid out ofthe consolidated revenue fund.

(15)If the board or a panel makes an order ordecision with respect to an appeal thechair must send a copy of the order ordecision to the minister and to the parties.

Varying and rescinding orders of board

12 The Lieutenant Governor in Councilmay, in the public interest, vary or rescindan order or decision of the board.

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Environmental Management Act, SBC 2003, c. 53 [In force on July 8, 2004]

Part 8 — Appeals Division 1 — Environmental Appeal

Board Environmental Appeal Board

93 (1) The Environmental Appeal Board is continued to hear appeals that under theprovisions of any enactment are to beheard by the appeal board.

(2) In relation to an appeal under anotherenactment, the appeal board has the powers given to it by that other enactment.

(3) The appeal board consists of the followingindividuals appointed by the LieutenantGovernor in Council after a merit basedprocess: (a) a member designated as the chair;(b) one or more members designated as

vice chairs after consultation with thechair;

(c) other members appointed after consultation with the chair.

(4) The Administrative TribunalsAppointment and Administration Actapplies to the appeal board.

(5 and 6) Repealed 2003-47-24.](7) The chair may organize the appeal board

into panels, each comprised of one ormore members.

(8) The members of the appeal board may sit(a) as the appeal board, or(b) as a panel of the appeal board.

(9) If members sit as a panel of the appealboard,(a) 2 or more panels may sit at the same

time,(b) the panel has all the jurisdiction of

and may exercise and perform thepowers and duties of the appeal board,and

(c) an order, decision or action of thepanel is an order, decision or action ofthe appeal board.

(10)The Lieutenant Governor in Council, byregulation, may establish the quorum ofthe appeal board or a panel.

(11)The appeal board, a panel and each member have all the powers, protectionand privileges of a commissioner undersections 12, 15 and 16 of the Inquiry Act.

Parties and witnesses

94 (1) In an appeal, the appeal board or panel (a) may hear the evidence of any person,

including a person the appeal boardor a panel invites to appear before it,and

(b) on request of(i) the person, (ii) a member of the body, or (iii)a representative of the person or

body, whose decision is the subject of theappeal or review, must give that person or body full party status.

(2) A person or body, including the appellant,that has full party status in an appeal may(a) be represented by counsel,(b) present evidence,(c) if there is an oral hearing, ask

questions, and

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(d) make submissions as to facts, law andjurisdiction.

(3) A person who gives oral evidence may bequestioned by the appeal board, a panel orthe parties to the appeal.

Costs and security for costs

95 (1) The appeal board may require the appellant to deposit with it an amount ofmoney it considers sufficient to cover allor part of the anticipated costs of therespondent and the anticipated expensesof the appeal board in connection withthe appeal.

(2) In addition to the powers referred to insection 93 (2) [environmental appealboard] but subject to the regulations, theappeal board may make orders as follows: (a) requiring a party to pay all or part

of the costs of another party in connection with the appeal, as determined by the appeal board;

(b) if the appeal board considers that theconduct of a party has been vexatious,frivolous or abusive, requiring theparty to pay all or part of the expens-es of the appeal board in connectionwith the appeal.

(3) An order under subsection (2) mayinclude directions respecting the disposi-tion of money deposited under subsection(1).

(4) If a person or body given full party statusunder subsection 94 (2) [parties and witnesses] is an agent or representative ofthe government, (a) an order under subsection (2) may

not be made for or against the personor body, and

(b) an order under subsection (2) (a) may be made for or against the government.

(5) The costs payable by the governmentunder an order under subsection (4) (b)must be paid out of the consolidated revenue fund.

Decision of appeal board

96 If the appeal board or a panel makes anorder or decision with respect to anappeal the chair must send a copy of theorder or decision to the minister and tothe parties.

Varying and rescinding orders of appeal board

97 The Lieutenant Governor in Councilmay, in the public interest, vary or rescindan order or decision of the appeal board.

Appeal board power to enter property

98 The members of the appeal board have,for the purposes of an appeal, the right toenter any property except a private resi-dence.

Division 2 — Appeals from Decisions under this Act

Definition of “decision”

99 For the purpose of this Division, “decision” means (a) making an order,(b) imposing a requirement,(c) exercising a power except a power of

delegation,

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(d) issuing, amending, renewing, suspend-ing, refusing or cancelling a permit,approval or operational certificate,

(e) including a requirement or a condition in an order, permit,approval or operational certificate,

(f) determining to impose an administrative penalty, and

(g) determining that the terms and conditions of an agreement under section 115 (4) [administrativepenalties] have not been performed.

Appeals to Environmental Appeal Board

100 (1) A person aggrieved by a decision of adirector or a district director may appealthe decision to the appeal board in accordance with this Division.

(2) For certainty, a decision under this Act ofthe Lieutenant Governor in Council orthe minister is not appealable to theappeal board.

Time limit for commencing appeal

101 The time limit for commencing an appealof a decision is 30 days after notice of thedecision is given.

Procedure on appeals

102 (1) An appeal under this Division (a) must be commenced by notice of

appeal in accordance with the pre-scribed practice, procedure and forms,and

(b) must be conducted in accordancewith Division 1 of this Part and theregulations.

(2) The appeal board may conduct an appealunder this Division by way of a new hearing.

Powers of appeal board in deciding appeal

103 On an appeal under this Division, theappeal board may (a) send the matter back to the person

who made the decision, with directions,(b) confirm, reverse or vary the decision

being appealed, or(c) make any decision that the person

whose decision is appealed could havemade, and that the appeal board considers appropriate in the circumstances.

Appeal does not operate as stay

104 The commencement of an appeal underthis Division does not operate as a stay orsuspend the operation of the decisionbeing appealed unless the appeal boardorders otherwise.

Division 3 — Regulations in Relation to Appeal Board

Regulations in relation to the appealboard

105 (1) Without limiting section 138 (1) [generalauthority to make regulations], theLieutenant Governor in Council maymake regulations as follows: (a) prescribing a tariff of fees to be paid

with respect to a matter within thejurisdiction of the appeal board;

(b) prescribing practices, procedures andforms to be followed and used by theappeal board;

(c) establishing restrictions on theauthority of the board under section95 (1) to (4) [costs and security forcosts] including, without limiting this, (i) prescribing limits, rates and tariffs

relating to amounts that may berequired to be paid or deposited,and

(ii) prescribing what are to be consid-ered costs to the government inrelation to an appeal and howthose are to be determined;

(d) respecting how notice of a decisionunder section 96 [decision of appealboard] may be given.

Environmental AppealBoard Procedure Regulation [as amended when the Environmental Management Act came into force on July 8, 2004]

Interpretation

1 In this regulation“Act” means the EnvironmentalManagement Act;“board” means the EnvironmentalAppeal Board established under the Act;“chairman” means the chairman of theboard;“minister” means the minister responsiblefor administering the Act under whichthe appeal arises;

“objector” in relation to an appeal to theboard means a person who, under anexpress provision in another enactment,had the status of an objector in the matterfrom which the appeal is taken.

Application

2 This regulation applies to all appeals tothe board.

Appeal practice and procedure

3 (1) Every appeal to the board shall be takenwithin the time allowed by the enactmentthat authorizes the appeal.

(2) Unless otherwise directed under theenactment that authorizes the appeal, anappellant shall give notice of the appealby mailing a notice of appeal by registeredmail to the chairman, or leaving it forhim during business hours, at the addressof the board.

(3) A notice of appeal shall contain the nameand address of the appellant, the name ofcounsel or agent, if any, for the appellant,the address for service upon the appellant,grounds for appeal, particulars relative tothe appeal and a statement of the natureof the order requested.

(4) The notice of appeal shall be signed bythe appellant, or on his behalf by hiscounsel or agent, for each action, decisionor order appealed against and the noticeshall be accompanied by a fee of $25,payable to the Minister of Finance andCorporate Relations.

(5) Where a notice of appeal does not conform to subsections (3) and (4), thechairman may by mail or another methodof delivery return the notice of appeal to

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39

the appellant together with written notice(a) stating the deficiencies and requiring

them to be corrected, and(b) informing the appellant that under

this section the board shall not beobliged to proceed with the appealuntil a notice or amended notice ofappeal, with the deficiencies corrected,is submitted to the chairman.

(6) Where a notice of appeal is returnedunder subsection (5) the board shall notbe obliged to proceed with the appealuntil the chairman receives an amendednotice of appeal with the deficiencies corrected.

Procedure following receipt of notice of appeal

4 (1) On receipt of a notice of appeal, or, in acase where a notice of appeal is returnedunder section 3(5), on receipt of anamended notice of appeal with the deficiencies corrected, the chairman shallimmediately acknowledge receipt by mailing or otherwise delivering anacknowledgement of receipt together witha copy of the notice of appeal or of theamended notice of appeal, as the case maybe, to the appellant, the minister’s office,the official from whose decision theappeal is taken, the applicant, if he is aperson other than the appellant, and anyobjectors.

(2) The chairman shall within 60 days ofreceipt of the notice of appeal or of theamended notice of appeal, as the case maybe, determine whether the appeal is to bedecided by members of the board sittingas a board or by members of the board

sitting as a panel of the board and thechairman shall determine whether theboard or the panel, as the case may be,will decide the appeal on the basis of afull hearing or from written submissions.

(3) Where the chairman determines that theappeal is to be decided by a panel of theboard, he shall, within the time limited in subsection (2), designate the panelmembers and,(a) if he is on the panel, he shall be its

chairman,(b) if he is not on the panel but a vice

chairman of the board is, the vicechairman shall be its chairman, or

(c) if neither the chairman nor a vicechairman of the board is on thepanel, the chairman shall designateone of the panel members to be thepanel chairman.

(4) Within the time limited in subsection (2)the chairman shall, where he has deter-mined that a full hearing shall be held, setthe date, time and location of the hearingof the appeal and he shall notify theappellant, the minister’s office, theMinister of Health if the appeal relates to a matter under the Health Act, the official from whose decision the appeal istaken, the applicant, if he is a personother than the appellant, and any objectors.

(5) Repealed. [B.C. Reg. 118/87, s.2.]

Quorum

5 (1) Where the members of the board sit as aboard, 3 members, one of whom must bethe chairman or vice chairman, constitutea quorum.

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(2) Where members of the board sit as apanel of one, 3 or 5 members, then thepanel chairman constitutes a quorum forthe panel of one, the panel chairman plusone other member constitutes the quorumfor a panel of 3 and the panel chairmanplus 2 other members constitutes the quorum for a panel of 5.

Order or decision of the board or a panel

6 Where the board or a panel makes anorder or decision with respect to anappeal, written reasons shall be given forthe order or decision and the chairmanshall, as soon as practical, send a copy ofthe order or decision accompanied by thewritten reasons to the minister and theparties.

Written briefs

7 Where the chairman has decided that afull hearing shall be held, the chairman inan appeal before the board, or the panelchairman in an appeal before a panel,may require the parties to submit writtenbriefs in addition to giving oral evidence.

Public hearings

8 Hearings before the board or a panel ofthe board shall be open to the public.

Recording the proceedings

9 (1) Where a full hearing is held, the proceedings before the board or a panel of the board shall be taken using shorthand or a recorder, by a stenographerappointed by the chairman, for a hearingbefore the board, or by the panel

chairman, for a hearing before the panel.(2) Before acting, a stenographer who takes

the proceedings before the board or apanel shall make oath that he shall trulyand faithfully report the evidence.

(3) Where proceedings are taken as providedin this section by a stenographer so sworn,then it is not necessary that the evidencebe read over to, or be signed by, the witness, but it is sufficient that the transcript of the proceedings be(a) signed by the chairman or a member

of the board, in the case of a hearingbefore the board, or by the panelchairman or a member of the panel,in the case of a hearing before thepanel, and

(b) be accompanied by an affidavit of thestenographer that the transcript is atrue report of the evidence.

Transcripts

10 On application to the chairman or panelchairman, as the case may be, a transcriptof the proceedings, if any, before theboard or the panel of the board shall be prepared at the cost of the personrequesting it or, where there is more thanone applicant for the transcript, by all ofthe applicants on a pro rata basis.

Representation before the board

11 Parties appearing before the board or apanel of the board may represent them-selves personally or be represented bycounsel or agent.

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Health Act

Power to make regulations

8 (2) In addition to the matters set out in subsection (1), the Lieutenant Governorin Council may make regulations withrespect to the following matters:…(m) the inspection, regulation and

control, for the purposes of healthprotection provided in this Act, of…(ii) the location, design, installation,

construction, operation andmaintenance of…

(C) sewage disposal systems, …

and requiring a permit for them andrequiring compliance with the condi-tions of the permit and authorizinginspections for that purpose;

…(4) If a person is aggrieved by the issue or the

refusal of a permit for a sewage disposalsystem under a regulation made undersubsection (2)(m), the person may appealthat ruling to the Environmental AppealBoard established under section 11 of theEnvironment Management Act within 30days of the ruling.

(5) On hearing an appeal under subsection(4), the Environmental Appeal Boardmay confirm, vary or rescind the rulingunder appeal.

Integrated Pest Management Act, SBC 2003, c. 58 [In force on December 31, 2004]


14 (1) For the purposes of this section, “decision” means any of the following:(a) making an order, other than an order

under section 8 [minister’s orders];(b) specifying terms and conditions,

except terms and conditions prescribed by the administrator, in a licence, certificate or permit;

(c) amending or refusing to issue, amendor renew a licence, certificate or permit;

(d) revoking or suspending a licence, certificate, permit or confirmation;

(e) restricting the eligibility of a holder ofa licence, certificate, permit or pestmanagement plan to apply for another licence, certificate or permitor to receive confirmation;

(f) determining to impose an administrative penalty;

(g) determining that the terms and conditions of an agreement under section 23 (4) [administrative penalties] have not been performed.

(2) A declaration, suspension or restrictionunder section 2 [Act may be limited inemergency] is not subject to appeal underthis section.

(3) A person may appeal a decision under thisAct to the appeal board.

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(4) The time limit for commencing an appealof a decision is 30 days after the date thedecision being appealed is made.

(5) On appeal must be commenced by noticeof appeal in accordance with the practice,procedure and forms prescribed by regulation under the EnvironmentalManagement Act.

(6) Subject to this Act, an appeal must beconducted in accordance with Division 1[Environmental Appeal Board] of Part 8of the Environmental Management Actand the regulations under that Part.

(7) The appeal board may conduct an appealby way of a new hearing.

(8) On an appeal, the appeal board may(a) send the matter back to the person

who made the decision beingappealed, with directions,

(b) confirm, reverse or vary the decisionbeing appealed, or

(c) make any decision that the personwhose decision is appealed could havemade, and that the board considersappropriate in the circumstances.

(9) An appeal does not act as a stay or suspend the operation of the decisionbeing appealed unless the appeal boardorders otherwise.

Pesticide Control Act [Repealed by the Integrated Pest Management Act, SBC 2003, c. 58, s. 45, effective December 31, 2004 (B.C. Reg. 599/2004).]


15 (1) For the purpose of this section, “decision”means an action, decision or order.

(2) Any person may appeal a decision of theadministrator under this Act, or of anyother person under this Act, to the appealboard.

(3) The time limit for commencing an appealis the time limit prescribed by regulation.

(4) An appeal under this section (a) must be commenced by notice of

appeal in accordance with the practice, procedure and forms prescribed by regulation under theEnvironment Management Act, and

(b) subject to this Act, must be conduct-ed in accordance with theEnvironment Management Act and theregulations under that Act.

(5) For the purposes of an appeal under thissection, if a notice under this Act is sentby registered mail to the last knownaddress of a person, the notice is conclu-sively deemed to be served on the personto whom it is addressed on (a) the 14th day after the notice was

deposited with Canada Post, or (b) the date on which the notice was

actually received by the person,whether by mail or otherwise,

43

whichever is earlier. (6) The appeal board may conduct an appeal

by way of a new hearing. (7) On an appeal, the appeal board may

(a) send the matter back to the personwho made the decision beingappealed, with directions,



(8) An appeal does not act as a stay or suspend the operation of the decisionbeing appealed unless the appeal boardorders otherwise.

Pesticide Control Act Regulation[Repealed effective December 31, 2004]

Appeals

45 (1) A person who intends to appeal to theboard against the action, decision or orderof the administrator or of any other person under the Act shall file the appealin the manner required by subsection (2)within 30 days from the date of theaction, decision or order against whichthe appeal is taken.

(2) The appellant shall file the appeal bymailing notice of appeal by registered mail to the chairman, or leaving it forhim during business hours, at the addressof the board.

(3) A notice of appeal shall contain the nameand address of the appellant, the name ofcounsel or agent, if any, for the appellant,the address for service upon the appellant,grounds for appeal, particulars relative tothe appeal and a statement of the natureof the order requested, and shall be signedby the appellant or on his behalf by hiscounsel or agent.

(4) Where a notice of appeal does not conform to subsection (3), the chairmanmay by mail or another method of delivery return the notice of appeal to theappellant together with written notice(a) stating the deficiencies and requiring

them to be corrected, and(b) informing the appellant that under

this section the board shall not beobliged to proceed with the appealuntil a notice or amended notice ofappeal, with the deficiencies corrected,is submitted to the chairman.

(5) Where a notice of appeal is returnedunder subsection (4) the board shall notbe obliged to proceed with the appealuntil the chairman receives an amendednotice of appeal with the deficiencies corrected.

(6) Repealed. [B.C. Reg. 132/82.](7) The procedures on the appeal shall be

those set out in the EnvironmentalAppeal Board Procedure Regulation.

44

Waste Management Act [Repealed by the Environmental Management Act, 2003, SBC 2003, c. 53, s. 174, effective July 8, 2004 (B.C. Reg. 317/2004).]

Definition of “decision”

43 For the purpose of this Part, “decision”means (a) the making of an order, (b) the imposition of a requirement, (c) an exercise of a power, (d) the issue, amendment, renewal,

suspension, refusal or cancellation ofa permit, approval or operational certificate, and

(e) the inclusion in any order, permit,approval or operational certificate ofany requirement or condition.


44 (1) Subject to this Part, a person aggrieved by a decision of a manager, director or district director may appeal the decisionto the appeal board.

(2) Nothing in this section is to be construedas applying in respect of a decision madeby the minister under this Act or by theLieutenant Governor in Council.

Time limit for commencing appeal

45 The time limit for commencing an appealis 30 days after notice of the decisionbeing appealed is given

(a) to the person subject to the decision,or

(b) in accordance with the regulations.

Procedure on appeals

46 (1) An appeal under this Part (a) must be commenced by notice of

appeal in accordance with the prac-tice, procedure and forms prescribedby regulation under the EnvironmentManagement Act, and

(b) subject to this Act, must be conduct-ed in accordance with theEnvironment Management Act and theregulations under that Act.


Powers of appeal board in decidingappeal

47 On an appeal, the appeal board may (a) send the matter back to the person

who made the decision, with directions,



Appeal does not operate as stay

48 An appeal taken under this Act does notoperate as a stay or suspend the operationof the decision being appealed unless theappeal board orders otherwise.

45

Water Act [as amended on November 1, 2004 to address the regulation of ground water]


92 (1) Subject to subsections (2) and (3), anorder of the comptroller, the regionalwater manager or an engineer may beappealed 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 theirrights are or will be prejudiced by theorder.

(1.1)Despite subsection (1), a licensee may notappeal an order of the comptroller or aregional water manager to cancel inwhole or in part a licence and all rightsunder it under section 23 (2) (c) or (d).

(2) An order of the comptroller, the regionalwater manager or an engineer under Part5 or 6 in relation to a well, works relatedto a well, ground water or an aquifer maybe appealed to the appeal board by(a) the person who is subject to the order,(b) the well owner, or(c) the owner of the land on which the

well is located.(3) An order of the comptroller, the regional

water manager or an engineer under section 81 [drilling authorizations] may beappealed to the appeal board by

(a) the person who is subject to the order,(b) the well owner,(c) the owner of the land on which the

well is located, or(d) a person in a class prescribed in

respect of the water management planor drinking water protection plan forthe applicable area.

(4) The time limit for commencing an appealis 30 days after notice of the order beingappealed is given(a) to the person subject to the order, or(b) in accordance with the regulations.

(5) For the purposes of an appeal, if a noticeunder this Act is sent by registered mailto the last known address of a person, thenotice is conclusively deemed to be servedon the person to whom it is addressed on(a) the 14th day after the notice was

deposited with Canada Post, or(b) the date on which the notice was

actually received by the person,whether by mail or otherwise,

whichever is earlier.(6) An appeal under this section

(a) must be commenced by notice ofappeal in accordance with the practice, procedure and forms prescribed by regulation under theEnvironment Management Act, and

(b) subject to this Act, must be conducted in accordance with theEnvironment Management Act and theregulations under that Act.


46

(8) On an appeal, the appeal board may(a) send the matter back to the

comptroller, regional water manageror engineer, with directions,

(b) confirm, reverse or vary the orderbeing appealed, or

(c) make any order that the person whoseorder is appealed could have madeand that the board considers appropriate in the circumstances.

(9) An appeal does not act as a stay or sus-pend the operation of the order beingappealed unless the appeal board ordersotherwise.

Wildlife Act


101.1(1) The affected person referred to in section101(2) may appeal the decision to theEnvironmental Appeal Board establishedunder the Environment Management Act.[now Environmental Management Act].

(2) The time limit for commencing an appealis 30 days after notice is given (a) to the affected person under section

101(2), or (b) in accordance with the regulations.

(3) An appeal under this section (a) must be commenced by notice of

appeal in accordance with the practice, procedure and forms prescribed by regulation under theEnvironment Management Act, [nowEnvironmental Management Act] and

(b) subject to this Act, must be conductedin accordance with the EnvironmentManagement Act [now EnvironmentalManagement Act] and the regulationsunder that Act.


(5) On an appeal, the appeal board may (a) send the matter back to the regional

manager or director, with directions, (b) confirm, reverse or vary the decision

being appealed, or (c) make any decision that the person

whose decision is appealed could havemade, and that the board considersappropriate in the circumstances.

(6) An appeal taken under this Act does notoperate as a stay or suspend the operationof the decision being appealed unless theappeal board orders otherwise.

Documents

Environmental - British Columbia