The B.C. Court of Appeal dismissed an appeal by an organisation of individuals holding water licences (“Red Mountain”) against the cancellation of an integrated watershed management plan and a decision of the District Manager of the Arrow Forest District to permit the building of a logging road in the watershed supplying domestic water to the members of Red Mountain. The appeal was dismissed on the basis that Red Mountain could not rely on the doctrine of legitimate expectations to resurrect the Watershed Management Plan, and further that the issues surrounding the building of the road in the watershed area had been made moot.

Administrative law – Environmental issues – Watershed management – Water licence holders – Forest practices – Judicial review – Natural justice – Legitimate expectations

Red Mountain Residents and Property Owners Assn. v. British Columbia (Minister of Forests, British Columbia Forest Service, Arrow Forest District), [2003] B.C.J. No. 659, British Columbia Court of Appeal, March 26, 2003, Donald, Saunders and Thackray JJ.A.

Red Mountain argued that the doctrine of legitimate expectations should afford it the right to retention of the Watershed Management Plan as the operative scheme for consultation generally, and the right to be consulted in relation to the specific problem of the contested road permit. The British Columbia Court of Appeal referred to the Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. The court quoted from that decision as follows:

[the doctrine of legitimate expectations] is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of the public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.

Red Mountain argued that the Watershed Management Plan had provided better avenues for consultation with them than the processes which replaced the Plan. However, the court held that even if that were the case, Red Mountain had failed to demonstrate that it had lost the opportunity to be consulted and to have its voice heard on matters affecting its interests in the watershed.

The court stated further that the doctrine of legitimate expectations:

… requires an expectation and no other opportunity to make representations. The record in this case is full of letters, reports, submissions and the like from the appellant to the government agencies concerning Slocan’s road access to the watershed. In his written decisions the District Manager recites the representations from the appellant and says that he took them into account. I conclude that the appellant failed to establish the constituent elements of the doctrine both in relation to the Plan and the road permit.

On the issue of the road being built into the wetlands, the court determined that even if the District Manager had erred in his interpretation of the Operational Planning Regulations governing the reservation of Riparian Reserve Zones, a determination by the Court of Appeal to that effect would serve no practical purpose for future reference because the District Manager, by that point, held a much wider discretion in resolving disputes over roads through wetlands.

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