Decision Date: July 6, 2016

Court: B.C.S.C., Justice Myers

Citation: 2016 BCSC 1235

Greengen Holdings Inc. (“Greengen”) sought a judicial review by the BC Supreme Court of a decision issued in 2015 by the Environmental Appeal Board (the “Board”), along with decisions issued in 2009 by government agencies under the Water Act and the Land Act.

Greengen seeks to develop a run-of-river power project on Fries Creek near Squamish, BC. In 2005, Greengen submitted applications for Crown land tenure under the Land Act, and a water licence under the Water Act, to develop the project.

On August 17, 2009, Greengen’s application for Crown land tenure under the Land Act was denied. The next day, Greengen’s application for a water licence under the Water Act was denied by a Regional Water Manager.

Greengen appealed the Regional Water Manager’s decision to the Board, and requested that the Board issue a water licence. The Land Act does not provide for appeals to the Board. Greengen could have sought a judicial review of the land tenure decision, but it did not do so at that time.

Greengen’s appeal of the Regional Water Manager’s decision was held in abeyance for several years at Greengen’s request. In September 2014, Greengen requested that the appeal be set down for a hearing. The hearing was scheduled to commence in January 2016. Shortly after the hearing was scheduled, the Regional Water Manager raised a preliminary issue of jurisdiction. He argued that the Board had no jurisdiction to grant the remedy sought in the appeal, because land tenure is a prerequisite for granting a water licence, and Greengen holds no land tenure.

On November 19, 2015, the Board granted the preliminary application and dismissed the appeal (Greengen Holdings Inc. v. Regional Water Manager, 2009-WAT-015(a)).

On January 18, 2016, Greengen sought a judicial review of the Board’s decision, and the two decisions issued in 2009.

Before the Court heard the merits of the case, the Respondents brought preliminary motions requesting that the case be dismissed with respect to the two 2009 decisions. In particular, the Board argued that the application for judicial review of the 2009 decision under the Water Act amounted to a collateral attack on the Board’s decision.

The Court noted that the three decisions under review are inter-related. If the decision under the Land Act is quashed, the basis for the Regional Water Manager’s decision would be rejected, which would affect the Board’s decision. The Court concluded that the arguments on the preliminary motions should be dealt with at the hearing of the merits of the case.

Accordingly, the Court denied the preliminary motions, and ordered that the case be set down for a hearing.