Decision Date: November 19, 2015

Panel: Robert Wickett, Q.C.

Keywords: Water Act – definitions of “licensee”, “owner”, ss. 7(a), 12(1)(f), 12(3), 13(c); water licence; preliminary decision; jurisdiction; remedy

In 2009, Greengen Holdings Inc. (“Greengen”) appealed a decision denying its application for a water licence on Fries Creek for power purposes. The water licence application was denied by the Regional Water Manager (the “Manager”), Ministry of Environment (now the Ministry of Forests, Lands and Natural Resource Operations) (the “Ministry”). Greengen sought the water licence as part of a proposed hydro power project. Fries Creek is within the traditional territory of the Squamish First Nation (“SFN”).

Shortly before the Manager denied Greengen’s application for a water licence, a statutory decision-maker under the Land Act had denied Greengen’s application for Crown land tenure to build an access road and construct works for the hydro power project. There is no statutory appeal process for decisions under the Land Act. Greengen could have applied for a judicial review of that decision, but it did not. As a result, Greengen had no authorization to access or use Crown land to develop the hydro power project.

At Greengen’s request, the appeal of the water licensing decision was held in abeyance for several years to allow the parties time to attempt to resolve the matter. The matter was not resolved, and in September 2014, Greengen requested that the appeal be set down for a hearing. The hearing was scheduled to commence in January 2016.

In September 2015, the Manager raised a preliminary issue regarding the Board’s jurisdiction to grant the remedy sought by Greengen; namely, to approve the issuance of a water licence to Greengen. The Manager submitted that Greengen held no interest in land to which a water licence could be appurtenant as required by the Water Act, and therefore, Greengen did not meet the eligibility requirements under section 7 of the Water Act for holding a water licence. On that basis, the Manager submitted that the appeal should be dismissed.

Before deciding the preliminary issue, the Board offered Greengen and the SFN an opportunity to make written submissions. The SFN supported the Manager’s objection, and the SFN requested that it be granted costs if the appeal was dismissed.

Greengen submitted that the Board could grant a “contingent licence” pursuant to section 12(1)(f) of the Water Act, subject to a condition that Greengen could not use the licence until it obtained the requisite land tenure. Alternatively, Greengen submitted that the Board could send the matter back to the Manager with directions that a water licence must be granted if and when Greengen obtains the requisite land tenure. In addition, Greengen submitted that the Manager raised the objection too late in the appeal process, and therefore, the Board should not consider the objection. Greengen also requested an award of costs.

The Board rejected Greengen’s submissions that the Manager raised the objection too late in the appeal process to be considered. The Board found that the delay between the filing of the appeal and the setting of the hearing dates was due to requests by Greengen. Although the Manager raised the preliminary objection after the hearing was scheduled, there was sufficient time for the parties and participant to make submissions on the objection, and for the Board to decide the objection, well before the hearing would commence. The timing of the objection caused no prejudice to Greengen in terms of its ability to respond to the objection, or to know the outcome of the objection well in advance of the hearing. Also, the majority of the costs associated with a hearing would be avoided if the hearing was cancelled.

Next, the Board considered whether the appeal should be dismissed on the basis that the remedies sought by Greengen were beyond the Board’s jurisdiction. The Board found that a water licence must comply with the statutory requirements of a “licence” as defined in section 7 of the Water Act. Section 7(a) provides that a licence may be issued to “an owner of land….” The word “owner” is defined in the Water Act to mean “a person entitled to possession of any land, … and includes a person who has a substantial interest in the land….” Section 7 does not provide for the issuance of a licence to a person who will, or may, become an “owner”, but rather, only a person who is an “owner”. Therefore, the Board found that the Manager could not issue a licence conditional upon the licence holder becoming, at some future time, an “owner”. As such, even if Greengen was successful on the merits of its appeal, the Board could neither order that a licence be issued to Greengen subject to a condition that Greengen become an “owner”, nor direct the Manager to issue such a licence. Consequently, the Board dismissed the appeal for lack of jurisdiction to provide the remedies sought by Greengen.

In addition, the Board concluded that there were no special circumstances that warranted an award of costs in favour of either the SFN or Greengen.

Accordingly, the appeal was dismissed. The applications for costs were denied.