Decision Date: April 30, 1999

Panel: Toby Vigod

Keywords: Water Act – ss.5 and 41(1); Project Approval Certificate under the Environmental Assessment Act; standing; sufficient and proper grounds of appeal; jurisdiction; entry onto private land

Arrow Lakes applied to have Atco’s appeal against the decision of the Deputy Comptroller of Water Rights dismissed on the grounds that Atco did not have standing to appeal, its grounds for appeal were deficient, and that the Board had no jurisdiction to grant the remedy requested by Atco. The Deputy Comptroller had granted a water licence to Arrow Lakes authorizing the construction of a 49 kilometre transmission line as part of the Keenleyside Power Plant Project. The project had been approved under the Environmental Assessment Act.

Atco appealed on the grounds that the transmission line corridor would eliminate too much of Atco’s timber supply, and it wanted the project put on hold until an alternative route with less environmental impact could be chosen. Arrow Lakes submits that Atco does not have standing to appeal as its lands would only be affected if there was an expropriation. Arrow lakes also argued that Atco’s Notice of Appeal did not disclose proper foundation for the appeal.

The Board found that Atco’s land would be physically affected by the issuance of the licence and that s. 27 of the Water Act gives the holder of a licence the right to expropriate any land reasonably required for the works authorized under his or her licence. If a person’s land can be expropriated as a direct result of the granting of a licence, the Board concluded that that person was a class of persons that the legislature intended to grant a right of appeal under s.40(1)(b). Therefore, the Board found that Atco had standing to appeal.

The Board found that Atco provided some grounds for appeal and therefore met the basic content threshold for a valid appeal. It also noted that Atco had added new grounds to the appeal since it had filed its Notice of Appeal. The Board noted that Atco was not barred from adding new grounds for appeal provided that the general principles of fairness are adhered to, but added that Atco should provide an amended Notice of Appeal.

The Board noted that Atco’s original remedy sought, that the project be put on hold was beyond the jurisdiction of the Board, which only has jurisdiction over the issues that are addressed in the appeal, not over the entire project. However, it also found that Atco had clarified the remedy it was seeking. The Board found that Atco now appeared to be seeking the relocation of the transmission line or the setting aside of the Deputy Comptroller’s decision pertaining to the location of the line. The Board found that had jurisdiction to consider the location of the line and decide whether the decision of the Deputy Comptroller, in relation to the location, is appropriate in the circumstances.

This appeal is the first time that the Board has been faced with a matter that is the subject of a Project Approval Certificate under the Environmental Assessment Act. The relationship between the certificate approved under the Environmental Assessment Act and the jurisdiction of officials operating under the Water Act, as well as the boundaries of each act and the interaction between the acts has not yet been clearly laid out.

The Board found that Atco has standing to appeal the issuance of the licence, it has grounds to appeal, and the Board has jurisdiction over the remedy sought by Atco. The application was denied.