Decision Date: March 18, 1992

Panel: Linda Michaluk, Harry Hunter, Vicky Huntington

The sole question in this appeal was whether the Board had jurisdiction to here constitutional arguments. The grounds for appeal included a claim that the order appealed from infringed on the Appellant’s aboriginal or treaty rights respecting water and fishing, which are protected by s35 of the Constitution Act.

The Board found that since the Water Act section 38 (4.1) and (4.2) allowed the Engineer to make submissions to the Deputy Comptroller as to facts, law and jurisdiction, the Board must at least have the same powers. The wording of these sections was also similar to the wording in the Environment Management Act section 11 (10.1)(d) pertaining to the powers of the Board. The Board also decided that since it could make any order it considers just if it did not consider the Constitution Act its decision would not be just. The Board therefore decided it could hear the appeal.