Decision Date: August 14, 2008

Panel: Alan Andison

Keywords:  Water Act – s. 92(1); jurisdiction; permit; remedy; right of way; power transmission line

Fishstriker Industries Ltd. (“Fishstriker”) appealed a decision of the Deputy Comptroller of Water Rights (the “Deputy Comptroller”), Ministry of Environment (the “Ministry”), refusing Fishstriker’s application to terminate a permit issued under the Water Act.

The permit is held by BC Hydro and Power Authority (“BC Hydro”) and authorizes a right of way across specified Crown land where a transmission line was constructed.  The permit was originally issued in 1953 by the then Deputy Minister of Lands.  Two transmission lines extend through land that is now owned by Fishstriker, although the land was Crown land when the transmission lines were constructed.  One of the transmission lines is covered by a right of way registered on the title of Fishstriker’s land, and the other is not.  The unregistered transmission line was the subject of the appeal.  Fishstriker appealed on the grounds that the permit never provided legal authority for the transmission line on its property, and the permit is invalid to the extent that it purports to do so.

The Board requested submissions from the parties on its jurisdiction over the appeal, including whether it had jurisdiction over the remedy sought by Fishstriker; namely, to terminate the permit.

The Board found that Fishstriker was seeking a remedy that related to the merits of the permit.  In particular, Fishstriker was asking the Board to address the impact of the permit on its land.  The Board noted that the permit was issued many years ago, and the period for appealing the decision to issue the permit had expired long ago.  The Board found that Fishstriker was effectively trying to circumvent the limitation period for filing an appeal of the permit.  The Board held that the Deputy Comptroller’s decision simply maintained the status quo, and his decision did not have a physical effect on Fishstriker’s property.  Consequently, the Board found that it had no jurisdiction over the appeal under section 92 of the Water Act.  Specifically, it found that the Deputy Comptroller’s decision would not have a physical effect on Fishstriker’s land.  In addition, the Board found that the remedy Fishstriker was seeking was in the nature of a declaration, which is not a power that the Board has been given under the Water Act.

Accordingly, the Board concluded that it had no jurisdiction over the appeal.

The appeal was dismissed.