Decision Date: March 19, 2003

Panel: Alan Andison

Keywords: Water Act – ss. 1 definition of “approval,” “licensee,” “holder of a licence,” “order,” “owner,” “right,” “undertaking,” 8(1), 11(1), 40(1); riparian owner; standing; jurisdiction

The Comptroller of Water Rights (the “Comptroller”) and Teck Cominco Metals Ltd. (“Teck”) challenged the standing of Columbia Power Corporation (“Columbia”) to bring an appeal against the decision of the Comptroller to issue an approval, under the Water Act (the “Act“), to Teck for short-term diversion and use of water at the Waneta dam and hydroelectric facility on the Pend d’Oreille River.

The main issue in this preliminary decision was whether Columbia had standing to appeal as a riparian owner.  Columbia maintained that the 1994 Power Asset Sale Development Agreement (“PASDA“) between Cominco Ltd. (now Teck) and the Province and an option to purchase lands that included riparian lands, provided Columbia with rights as a riparian owner.  These claims were disputed by the Comptroller and Teck, who argued that neither the PASDA nor the option to purchase provided Columbia with such rights until such time as riparian lands were purchased by Columbia.

The Board first considered the meaning of “riparian owner,” which is undefined in the Act.  The Board noted that sections 11 and 40 of the Act refer to riparian owner and the term is grouped with “licensees” and “applicants for licenses.”  The Panel found that the rights of a riparian owner are common law in nature, as opposed to the statutory rights of a licensee or applicant for a license, and the common law definition of riparian owner applies to sections 11 and 40 of the Act.

Based on an analysis of the common law meaning of riparian owner, the Board concluded that in order for Columbia to have standing as a riparian owner for the purpose of appealing the approval, Columbia must presently own land through or past which the Pend d’Oreille River runs.  At the time of the hearing, Columbia had not completed the subdivisions and transfers of lands contemplated in the PASDA nor had it exercised the option to purchase.  Hence, the Board found that Columbia had no ownership or possession of any riparian lands on the Pend d’Oreille River.  Therefore, Columbia had no standing to appeal as a riparian owner.

Furthermore, even if Columbia were a riparian owner, Columbia failed to provide evidence showing how the exercise of rights by Teck, under the Approval, would have an adverse effect on the riparian lands that Columbia claimed to own.

The appeal was rejected for lack of jurisdiction.