Decision Date: August 25, 1998

Panel: Toby Vigod

Keywords: Adequate notice; Constitution Act, 1982 – s. 35(1); Water Act – s. 23(2), 40; Environment Management Act – s. 11; Allied Tsimshian Tribes; Westbank; Delgamuukw; Okanagan Indian Band; R. v. Sparrow; R. v. Jack; R. v. Little; Douglas College; Cuddy Chicks; Tetreault-Gadoury; Cooper v. Canada (Human Rights Commission)

Cook’s Ferry Indian Band (“the Band”) appealed an Order of the Assistant Regional Water Manager amending Mr. Zahradnik’s Conditional Water Licence. The Order extended the deadline for Mr. Zahradnik to construct works and make beneficial use of the water. Among other things, the Band argued that the licence potentially impacts their reserve land and the Crown had a duty to meaningfully consult with it. It asked that the amendment be rescinded and the entire licence be cancelled. The Assistant Manager challenged the Board’s jurisdiction to consider questions of aboriginal rights and title and its jurisdiction to cancel the licence. Upon agreement of the parties, these two issues were dealt with as a preliminary matter.

The Board noted that section 11(13)(d) of its enabling statute, the Environment Management Act, states that a person that is given full party status to an appeal may make submissions as to law and jurisdiction. The Board found that the use of the word “law” appeared to bestow on it an express authority to consider questions of law because, if a party may make submissions on law, it is logical that the Board may decide issues of law.

In addition to this express authority, the Board applied the “pragmatic and functional” analysis to determine if the Board also had an implied authority to consider these questions. In applying this analysis the Board noted that the determination of aboriginal rights or title is, to a significant degree, a fact-based inquiry, which is well within the Board’s expertise. In addition, the Board noted that a determination of aboriginal rights also involves questions of resource management and aboriginal rights, other areas where the Board has clear expertise. The Board also noted that if it did not have jurisdiction, a bifurcated appeal system would be created as the Band would have to court on some issues and to the Board on others. The Board found it had the implied, if not express, jurisdiction to address questions of aboriginal rights and title.

The Board also found that it did not have jurisdiction to cancel the entire licence because the amendment at issue was made pursuant to section 18 of the Water Act, which does not deal with the suspension and cancellation of licences.