Decision Date: March 4, 2005

Panel: Alan Andison

Keywords: Water Act – s. 40(1)(a) and (c), 40(5) and (6); Environment Management Act – s. 11(13)(d); conditional water licence; estoppel; questions of law; jurisdiction; standing

Watutco Enterprises Ltd. (“Watutco”) and Pacific Playground Holdings Ltd. (“Pacific Playground”) filed a joint appeal against the Deputy Comptroller’s decision, refusing to apportion rights between Watutco and Pacific Playground under a conditional water licence that was issued solely to Watutco.  The Deputy Comptroller applied to have the appeal dismissed on the grounds that the Board does not have jurisdiction to grant an apportioned licence because the legal principle of estoppel prevents the Appellants from pursuing the remedy that they were seeking.  Specifically, he argued that the Appellants were estoppel from appealing the apportionment decision because of their prior statements or conduct regarding a previous application that they made to have the same licence reinstated.  The Deputy Comptroller also challenged Pacific Playground’s standing to appeal the decision.

The Board agreed with the Deputy Comptroller that its governing legislation provides it with the power to determine questions of law, including questions of estoppel in the context of the Water Act.  The Board found that section 11(13)(d) of the Environment Management Act, that states in an appeal a person or body may make submissions as to “facts, law and jurisdiction”, is comparable to the legislative language that applies to the Forest Appeals Commission, which was found in Paul v. Forest Appeals Commission 2003 S.C.C. 55 to provide the Commission with the general authority to decide questions of law.  Accordingly, the Board found that it has the jurisdiction to grant a remedy on the basis of estoppel.  However, the Board was unclear as to whether estoppel should apply in the context of a licence application process to prevent a person from making an application.  Nevertheless, the Board found that even if estoppel was available to the Board in the circumstances, the facts did not support a finding that Watutco and Pacific Playground were estoppel from making the application for apportionment.

The Board also found, on a plain reading of section 40(1)(a) of the Water Act, that Pacific Playground has standing to appeal, as it is a person who was subject to the order of the Deputy Comptroller to refuse apportionment of the conditional water licence.

Accordingly, the applications to dismiss the appeal on the basis of estoppel and on the basis of lack of standing were dismissed.