Decision Date: May 17, 2010

Panel: Alan Andison

Keywords: Water Act – s. 18; order; conditional water licence; power generation project; abeyance; preliminary application; delay

Boliden Limited (“Boliden”) appealed an order issued by the Regional Water Manager (the “Regional Manager”), Ministry of Environment. The order amends a conditional water licence held by Regional Power Inc. (“Regional Power”), by increasing the period of time that Regional Power has to complete the works authorized in the licence by four years, and adding a clause limiting the term of the licence to 40 years. The licence authorizes the diversion, storage and use of water on Cascade Creek for the purpose of a proposed power generation project.

Boliden owns and operates the Premier Gold Mine on the banks of Cascade Creek, downstream from the proposed power project. Originally, the licence required Regional Power’s works to be completed by the end of 2008, but they were not completed by then. In January 2009, Regional Power sought an extension of time to complete the works, pursuant to section 18 of the Water Act. Boliden expressed concerns to the Regional Manager about Regional Power’s proposed project and its application for an extension of time. However, on April 30, 2009, the Regional Manager issued the order amending the licence and allowing the extension of time.

On May 29, 2009, Boliden appealed the order to the Board. In August 2009, Boliden requested that the Board hold the appeal in abeyance pending Boliden’s review of certain documents that were provided to it by Regional Power. By a letter dated August 31, 2009, the Board agreed to hold Boliden’s appeal in abeyance for six months.

In February 2010, Boliden requested that the Board hold the appeal in abeyance for an additional six to nine months, to allow the parties more time to resolve Boliden’s concerns. Regional Power objected to the application, and asked the Board to set the matter down for a hearing without further delay.

The Board held that Boliden’s concerns related primarily to the proposed power project and the terms of the original licence, as well as whether Regional Power had complied with another order issued by the Regional Manager, and none of those matters were appealed to the Board. Consequently, the Board found that it had no jurisdiction over those matters. In addition, the Board found that the issues raised by the appeal of the April 30, 2009 order were relatively narrow, and could not be used to challenge the licence itself or the proposed project as a whole. Given the limited scope of the order under appeal and the issues raised by it, the Board concluded that the prejudice to Regional Power, if the appeal process was further delayed, outweighed the benefits of continuing to hold the appeal in abeyance.

Accordingly, the application was denied.