Decision Date: August 25, 1998

Panel: Toby Vigod

Keywords: Water Act – s. 38; Environment Management Act – s. 11(10.1)(d); Constitution Act, 1982 – s. 35(1); Cooper v. Canada (Human Rights Commission) (1996) 140 D.L.R. (4th) 193; Delgamuukw v. British Columbia [1997] S.C.J. No. 108, legislative intent

This was a preliminary decision on the Board’s jurisdiction to hear disputes regarding the constitutionality of certain provisions of the Water Act and aboriginal rights. The Okanagan Indian Band (“the Band”) appealed a decision by the Deputy Comptroller of Water Rights (“the Comptroller”) to grant a Conditional Water License to the Third Parties on the grounds that the decision infringed the Band’s aboriginal or treaty rights. In a previous decision (91/16(a)), the Board decided that it had the jurisdiction to interpret and apply the Constitution. The Comptroller again challenged the Board’s jurisdiction. The Band argued that the Board is without jurisdiction to reopen this matter.

The Board found that it was appropriate to reopen the jurisdictional issue in light of recent developments in the case law. On the question of its jurisdiction, the Board found that its enabling legislation bestowed an express authority for it to consider questions of fact, law and jurisdiction. Questions of law include interpretation of the Constitution. The Board also found that it had an implied jurisdiction to consider constitutional questions of aboriginal rights. Applying a pragmatic and functional approach developed in the caselaw, the Board found that it had expertise in fact-finding, resource management and environmental protection which are relevant to determining questions of aboriginal rights. In addition, the Board found that it would be inappropriate and unfair for aboriginal people to have the courts as their only avenue for protecting aboriginal rights. The Board also noted that it would be anomalous if provincial employees could address aboriginal rights issues, but not the tribunal. Therefore, the Board held that it has jurisdiction to hear the issues in this appeal.