Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E9 Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Email: eabinfo@gov.bc.ca Website: www.eab.gov.bc.ca DECISION NO. 2009-WAT-015(a) In the matter of an appeal under section 92 of the Water Act, R.S.B.C. 1996, c. 483. BETWEEN: Greengen Holdings Inc. APPELLANT AND: Regional Water Manager RESPONDENT AND: BEFORE: Chief Ian Campbell in his own right and on behalf of the Squamish First Nation A Panel of the Environmental Appeal Board Robert Wickett, Q.C., Vice Chair PARTICIPANT DATE: APPEARING: Conducted by way of written submissions concluding on October 15, 2015 For the Appellant: For the Respondent: For the Participant: Joseph J. Arvay, Q.C., and Arden Beddoes, Counsel Erin Christie and Anna Peacock, Counsel Aaron Bruce, Counsel PRELIMINARY APPLICATION TO DISMISS THE APPEAL [1] On September 17, 2009, Greengen Holdings Inc. ( Greengen ), formerly known as Second Reality Effects Inc., appealed a decision denying its application for a water licence on Fries Creek for power purposes. The water licence application was denied on August 18, 2009, by Julia Berardinucci, Regional Water Manager (the Manager ), Ministry of Environment (now the Ministry of Forests, Lands and Natural Resource Operations) (the Ministry ). [2] At Greengen s request, the appeal 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 is scheduled to commence in January 2016. [3] On September 24, 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 water licence to Greengen. The Manager submitted that Greengen does not meet the eligibility requirements in the Water Act for holding a water licence, and therefore, the appeal should be dismissed.
DECISION NO. 2009-WAT-015(a) Page 2 [4] Before deciding this preliminary issue, the Board offered Greengen and the participant, the Squamish First Nation ( SFN ), an opportunity to make written submissions. Both of them provided submissions. [5] This preliminary decision addresses the issue of whether the appeal should be dismissed on the basis that the Board has no jurisdiction under the Water Act to grant the remedy sought by Greengen. BACKGROUND [6] Fries Creek is a tributary to the Squamish River, located in southwestern BC. Brackendale Eagles Provincial Park is located to the north of Fries Creek. Fries Creek is within the traditional territory of the SFN, and flows through the Fries Creek Cultural Site before it joins the Squamish River. [7] On or about February 21, 2005, Second Reality Effects Inc. applied for a water licence on Fries Creek for power purposes, pursuant to the Water Act. On that same date, it also applied for a Crown land tenure under the Land Act, R.S.B.C. 1996, c. 245. Both applications were submitted in furtherance of a proposed hydro power project on Fries Creek. The proposed point of diversion for the hydro project is over 3 km upstream of the Fries Creek Cultural Site. [8] After submitting those applications, Second Reality Effects Inc. changed its name to Greengen. [9] In March 2006, Greengen s applications for the water licence and the Crown land tenure were sent to the SFN for comments. [10] In August 2006, Greengen received an electricity purchase agreement, whereby it can sell electricity generated by the proposed hydro project to BC Hydro. [11] In April 2007, a development plan for the proposed hydro project was referred to the SFN. [12] According to Greengen, in an April 17, 2007 letter (the Board does not have a copy of this letter), the SFN advised that it did not support Greengen s water licence application or the proposed hydro power project for various reasons, including because the Fries Creek Cultural Site was designated as a protected area in a Land Use Agreement between the SFN and the Province of BC. Although a copy of that Agreement has not been provided to the Board, many of the submissions and documents before the Board (including the decision under appeal) refer to this agreement as the Agreement on Land Use Planning between the Squamish Nation and the Province of British Columbia, dated July 26, 2007 (the Land Use Agreement ). [13] According to Greengen, the Province of BC and the SFN then spent over two years attempting to find a way to accommodate the SFN s concerns. During that process, Greengen agreed to adjust its plans to accommodate concerns about the access route to the proposed hydro power project. [14] On August 17, 2009, a statutory decision-maker under the Land Act denied Greengen s application for Crown land tenure. There is no statutory appeal process for decisions under the Land Act. Greengen could have applied for a judicial review
DECISION NO. 2009-WAT-015(a) Page 3 of that decision, but it did not. Greengen currently has no authorization to access or use Crown land to develop the hydro power project. [15] On August 18, 2009, the Manager denied Greengen s application for a water licence. The Manager s decision states, in part, as follows: In my review of the application, I have noted the following: The proposed project will result in the permanent diversion of a significant amount of water out of Fries Creek, upstream of the Squamish First Nation (SFN) Fries Creek Cultural Site; The Land Use Agreement between the Province and the SFN identifies a management intent of maintaining natural and aesthetic conditions within cultural sites that are conducive to spiritual and cultural inspiration; The SFN has indicated that it is strongly opposed to your application and has identified that the diversion would significantly impact the ability of its members to conduct spiritual bathing practices in Fries Creek and negatively impact the SFN s social, ceremonial and cultural use of the Fries Creek Cultural Site; The only feasible access routes for the works proposed under the application must cross the Skwelwil em Squamish Estuary Wildlife Management Area (WMA), Brackendale Eagles Provincial Park (BEP), and/or the SFN Monmouth cultural site; The Ministry of Environment Environmental Stewardship Division does not support issuance of a Park Use Permit within BEP or crossing of the WMA; and, Your land tenure application for tenure on Crown land on which works proposed under the application would have been built, has been disallowed. Based on the above, my conclusions are that: (1) The project is inconsistent with the Land Use [Planning] Agreement between the Province and the SFN; (2) The hydro development project would adversely impact SFN s aboriginal rights related to the cultural site and, due to their nature, impacts to those interests could not be adequately mitigated or accommodated; (3) You have not obtained permits or consent necessary to secure access to the proposed site for the hydro development; (4) You do not hold an interest in land to which your water licence application could be made appurtenant. Therefore, you do not qualify to hold a licence pursuant to section 7 of the Water Act. As such, your water licence application is hereby refused. The Appeal [16] On September 17, 2009, Greengen appealed the Manager s decision denying its water licence application. In its Notice of Appeal, Greengen raised several grounds for appeal, which the Panel has summarized as follows:
DECISION NO. 2009-WAT-015(a) Page 4 the Manager relied on incorrect, misleading or unsubstantiated claims by the SFN regarding the Fries Creek Cultural Site and the impacts of the proposed hydro project on that site and the SFN s aboriginal rights; the Manager failed to provide Greengen with the factual evidence to substantiate the claims of the SFN regarding the proposed project s impact; the Manager expressly or implicitly agreed, unreasonable or incorrectly relied upon the July 26, 2007 Land Use Agreement between the Province of BC and the SFN; the Manager incorrectly interpreted the duty to consult and accommodate as providing the SFN with the authority to effectively approve or disapprove Greengen s water licence application; the Manager relied on incorrect, misleading or unsubstantiated information or claims regarding the permanence and amount of water to be diverted upstream of the Fries Creek Cultural site, the feasible access routes for the proposed project, and the need for a Park Use Permit to access the proposed project; the Manager incorrectly and improperly relied on facts and conclusions set out in the decision of the statutory decision-maker under the Land Act regarding Greengen s application for Crown land tenure. [17] In its Notice of Appeal, Greengen requested that the Board approve a licence to divert water, as set out in its water licence application and its development plan. [18] As stated above, the appeal was held in abeyance for several years at Greengen s request, so the parties could to attempt to resolve the matter. [19] However, on September 8, 2014, Greengen advised the Board that the matter had not been resolved, and Greengen requested that the appeal be set down for a hearing in the summer of 2015. [20] By a letter dated October 22, 2014, the Board offered the SFN an opportunity to participate in the appeal on a limited basis by providing opening and closing statements, and providing evidence on how the Manager s decision affects the SFN. [21] In a letter dated November 10, 2014, Chief Ian Campbell of the SFN accepted the Board s invitation for participant status in the appeal. [22] After canvassing the availability of the parties and participants for a hearing, the Board issued a letter dated December 29, 2014, advising that the appeal had been scheduled for a hearing commencing on September 28, 2015. [23] However, on January 16, 2015, the Board received a letter from Mr. Arvay, Q.C, Greengen s current legal counsel, advising that he had been retained to represent Greengen in the appeal. He also advised that, with the consent of the Manager and the SFN, he was requesting a postponement of the hearing until December 2015 or later. [24] On February 10, 2015, the Board issued a letter advising that the appeal had been re-scheduled for a hearing commencing on January 11, 2016. In that same
DECISION NO. 2009-WAT-015(a) Page 5 letter, the Board advised that it had determined that the SFN should have full party status in the appeal, and the Board set out a schedule for the parties to exchange their statements of points prior to the appeal hearing. The Manager s preliminary application to dismiss the appeal [25] On September 24, 2015, the Manager raised a preliminary objection regarding the Board s jurisdiction to grant the remedy requested in Greengen s Notice of Appeal; namely, to approve the issuance of a water licence to Greengen. The Manager submits that Greengen holds no interest in land to which a water licence can be appurtenant as required by the Water Act, and therefore, Greengen does not meet the eligibility requirements under section 7 of the Water Act for holding a water licence. On that basis, the Manager submits that the appeal should be dismissed. [26] The SFN supports the Manager s objection, and submits that the appeal should be dismissed. If the appeal is dismissed, the SFN requests that it be granted its costs associated with the appeal. [27] Greengen submits that the Board has the jurisdiction to grant a remedy that would amount to granting it a water licence. Specifically, 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 submits 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 submits that the Manager raised the objection too late in the appeal process, and therefore, the objection should not be considered by the Board. [28] In its final reply, Greengen also requested an award of costs in Greengen s favour. ISSUES 1. Whether the Manager raised the preliminary objection too late in the appeal process, and therefore, the objection should not be considered by the Board. 2. Whether the appeal should be dismissed on the basis that the remedies sought by Greengen are beyond the Board s jurisdiction. 3. Whether the Board should order of costs in favour of the SFN or Greengen. RELEVANT LEGISLATION [29] The following sections of the Water Act are relevant to this matter. Other relevant legislation is provided later in the decision, where it is referred to. Definitions 1 In this Act:
DECISION NO. 2009-WAT-015(a) Page 6 licensee and holder of a licence mean an owner of any land, mine or undertaking with respect to which a licence is issued under this or a former Act owner means a person entitled to possession of any land, mine or undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking; Who may acquire licences 7 A licence for any one, 2 or 3 of the purposes defined in section 1 may be issued by the comptroller or the regional water manager to any of the following: (a) an owner of land or a mine; (b) a holder of a certificate of convenience and necessity issued under the Public Utilities Act, R.S.B.C. 1960, c. 323, or under the Water Utility Act; (c) a municipality, improvement district, water users' community or development district; (d) the Crown as represented by a minister appointed by the Governor General or the Lieutenant Governor; (e) a commission, board or person having charge of the administration of any land, mine or other property owned or controlled by a ministry, department, branch or other subdivision of the government of Canada or of British Columbia; (f) the Greater Vancouver Water District or any other water district incorporated by an Act of the Legislature; (g) the British Columbia Hydro and Power Authority. Powers of comptroller or regional water manager respecting applications 12 (1) With respect to an application, whether objections to it are filed or not, the comptroller or the regional water manager may (a) refuse the application, (b) amend the application in any respect, (c) grant all or part of the application, (d) require additional plans or other information, (e) require the applicant to give security for the purposes and in the amount and form the comptroller or the regional water manager considers in the public interest, and (f) issue to the applicant one or more conditional or final licences on the terms the comptroller or the regional water manager considers proper.
DECISION NO. 2009-WAT-015(a) Page 7 (3) With respect to an application for a licence, the comptroller or regional water manager must determine, in accordance with section 13, the precedence and appurtenancy of any licence to be issued under the application. Purpose, precedence and appurtenancy of licences 13 The comptroller or regional water manager must ensure that every licence issued on or after June 21, 1995 (c) specifies as the appurtenancy of the licence an appurtenancy that (i) is located entirely in British Columbia, (ii) consists of land, a mine or an undertaking, or any combination of those things, and (iii) is adequately described in the licence. DISCUSSION & ANALYSIS 1. Whether the Manager raised the preliminary objection too late in the appeal process, and therefore, the objection should not be considered by the Board. The Parties submissions [30] Greengen submits that the Board s Procedure Manual states as follows at page 15: Preliminary objection If a respondent, or any other party to an appeal has information that may call into question the appellant s ability to appeal the decision (e.g. no appealable decision was made or the appellant does not have standing), the information should be forwarded to the Board as soon as possible. Failure to do so may result in an unnecessary hearing at significant cost to all involved. [underlining added in Greengen s submissions] [31] Greengen notes that the Manager raised the objection nearly six years after Greengen filed the appeal. Greengen submits that the Manager s assertion that the Board lacks the jurisdiction to issue a licence to Greengen contradicts the Manager s August 18, 2009 decision, which expressly stated that Greengen has a right to appeal the Manager s decision to the Board. [32] Greengen argues that, in these circumstances, the objection should not be entertained, because Greenegen will be significantly and irreparably prejudiced if the Board now determines that the appeal cannot proceed. Had the Manager raised the objection as soon as possible, it would have significantly affected Greengen s planning and strategy regarding the proposed project over the intervening years.
DECISION NO. 2009-WAT-015(a) Page 8 [33] The SFN did not address this issue. [34] In reply, the Manager submits that the appeal was held in abeyance for over five years at Greengen s request. At that time, Greengen s then legal counsel requested that the appeal be held in abeyance to allow Greengen to attempt to resolve the issues which led to the denial of the water licence. The Manager brought the preliminary matter to the Board s attention before the appeal hearing to avoid the possibility of an unnecessary and costly hearing. The Manager did so after making inquiries about whether Greengen had taken steps to challenge the Land Act decision or otherwise obtain an interest in Crown land for the proposed project. The Manager argues that it was not her responsibility, nor would it have been appropriate for her, to advise Greengen of its legal remedies regarding the Land Act decision. The Manager submits that, if Greengen is prejudiced, this is due to Greengen s own failure to resolve the issue of land ownership and fulfill the statutory requirements for eligibility to hold a water licence. The Panel s findings [35] The delay in this appeal being set down for a hearing is entirely Greengen s responsibility. The appeal was held in abeyance for over five years at Greengen s request. In early September 2014, Greengen advised the Board that the matter had not been resolved, and Greengen requested that the appeal be set down for a hearing in the summer of 2015. Shortly thereafter, the Board began making inquiries with the parties and the participant about their availability for a hearing. [36] After canvassing their availability, the Board issued a letter on December 29, 2014, advising that the appeal had been scheduled for a hearing commencing on September 28, 2015. However, on January 16, 2015, Greengen s newly retained legal counsel advised that, with the consent of the Manager and the SFN, he was requesting a postponement of the hearing until December 2015 or later. In February 2015, the Board then set the hearing dates for the appeal, with the hearing scheduled to start in January 2016. [37] Thus, the delay between the filing of the appeal and the Board setting the January 2016 hearing dates was at Greengen s request, and there can be no finding of prejudice in its favour. [38] The Panel further finds that the Manager raised the preliminary objection at a reasonable point in the appeal process. The Panel notes that the Board s policy, as cited by Greengen, states that objections should be raised as soon as possible to avoid an unnecessary hearing at significant cost to all involved. Although the Manager raised the preliminary objection after the appeal was scheduled for a hearing, 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 in January 2016. In fact, the objection was raised well before Greengen s statement of points is due on December 4, 2015. The timing of the preliminary objection has caused no prejudice to Greengen in terms of its ability to respond to the preliminary objection, or to know the outcome of the objection well in advance of the hearing. [39] In these circumstances, the Panel rejects Greengen s submission that the preliminary objection was raised too late in the appeal process to be considered by
DECISION NO. 2009-WAT-015(a) Page 9 the Panel. The objection was raised well in advance of the appeal hearing, such that the majority of the costs associated with a hearing will be avoided if the hearing is cancelled. This is consistent with the Board s policy. 2. Whether the appeal should be dismissed on the basis that the remedies sought by Greengen are beyond the Board s jurisdiction. The Parties submissions [40] The Manager submits that section 7 of the Water Act sets out the persons that are eligible to hold a water licence. In the present case, section 7(a) is most relevant, and it provides that a water licence may be issued to an owner of land or a mine. Section 1 of the Water Act defines owner as meaning a person entitled to possession of any land, mine or undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking. The Manager submits that Greengen falls into none of the categories listed in section 7, as the Crown land tenure that was needed to allow for the construction and operation of the works proposed in Greengen s water licence application was denied. The Manager submits that, although the Ministry s practice is to accept applications for water licences while a tenure application for the appurtenant land is pending, an applicant must be an owner of land when the licence is issued. The Manager argues that section 7 does not allow a person to obtain a water licence contingent upon the licensee later obtaining possession of the appurtenant land or a substantial interest in the land. The Manager also submits that the definition of licensee and holder of a licence in section 1 of the Water Act supports this proposition. In summary, the Manager submits that a licensee must be an owner of land within the meaning of the Water Act, and not a prospective owner of land. [41] In support of those submissions, the Manager referred to the Board s decision in Fugger v. British Columbia (Ministry of Environment, Lands and Parks), [2001] B.C.E.A. No. 22 ( Fugger ), at paras 39 42. In that case, the Board held that, in order to be an owner of land within the meaning of the Water Act, a person must be entitled to possession of land, which generally means control or occupancy of land, including a substantial interest in land. [42] The Manager also argues that granting a water licence to a person without a substantial interest in land would be contrary to the system of water rights allocation on which the Water Act is based, which provides that water licences run with the conveyance or other disposition of the land to which they are appurtenant. In that regard, the Manager notes that section 13(c) of the Water Act requires that a regional water manager ensure that every water licence specifies an appurtenancy that is located in BC, and consists of land, a mine or an undertaking, or any combination of those things, and is adequately described. Further, under section 16 of the Water Act, a licence and any rights or obligations associated with it pass with the conveyance or other disposition of the appurtenant land, mine or undertaking. The Manager submits that, if a water licence could be issued to an individual who does own appurtenant land, it would be difficult to determine the priority of that licence relative to other licences, and to track successors to that licence.
DECISION NO. 2009-WAT-015(a) Page 10 [43] In support of those submissions, the Manager referred to the Board s decision in Fretts v. Regional Water Manager, [2012] B.C.E.A. No. 20 ( Fretts ), at paras 81 86. In that case, the Board held that a licensee can only hold the rights and obligations granted under a water licence in his or her capacity as an owner of the appurtenant land, and not as his or her separate personal property. [44] The SFN submits that the Manager was bound to reject Greengen s water licence application, given the prior Land Use Agreement between the Province and the SFN, which governs Crown land use, and given the provincial Crown s constitutional duty to accommodate the SFN s aboriginal rights. Moreover, the SFN agrees with the Manager that the Board has no jurisdiction to grant the remedy sought by Greengen. The SFN notes that Greengen has not challenged the denial of its Crown land tenure application under the Land Act. The SFN submits that Greengen s appeal of the Manager s decision should be dismissed forthwith, and it would be prejudicial to the SFN to further delay rejecting the appeal. [45] Greengen submits that the Board may grant a contingent licence to Greengen under section 12(1)(f) of the Water Act, which provides a regional water manager with the authority to issue a conditional or final water licence on the terms that regional water manager considers proper. Greengen argues that the Board, in deciding the appeal, may exercise the broad discretion of the Manager under section 12(1)(f), and may grant a water licence containing a term that Greengen could not use the licence until it obtains the requisite land tenure. [46] Alternatively, Greengen submits that, after hearing the appeal on its merits, the Board may decide to send the matter back to the Manager with directions to reconsider the SFN s aboriginal rights claims and whether they constitute a basis for rejecting Greengen s application, and if not, direct the Manager to issue a licence to Greengen if and when Greengen obtains the requisite land tenure. [47] In response to the SFN s submissions, Greengen submits that, although the SFN asserts that the Manager s preliminary objection is correct, the SFN s submission should be given no weight, because it fails to address the substance of the Manager s submissions. In addition, Greengen submits that the Board can consider and apply the Land Use Agreement in deciding the appeal. In that regard, Greengen submits that the Land Use Agreement was executed over two years after Greengen applied for the water licence and the requisite land tenure, and the Land Use Agreement states that it applies to new applications for Land Act dispositions. Greengen submits, therefore, that the Land Use Agreement does not apply to Greengen s proposed project. Greengen submits that, even if the Land Use Agreement applies to its proposed project, the Land Use Agreement does not provide the SFN with a veto over the project. In addition, Greengen argues that the question of whether it can still challenge the denial of its Crown land tenure application is outside of the Board s jurisdiction. [48] In reply, the Manager submits that the Water Act provides no authority to issue a contingent water licence. She submits that her discretion under section 12(1)(f) of the Water Act must be exercised within the parameters of that Act, including section 7 which limits the categories of persons or entities that may hold a water licence. The Manager argues that a water licence can only be issued to an applicant who falls within one of those categories. Furthermore, interpreting
DECISION NO. 2009-WAT-015(a) Page 11 section 12 of the Water Act as allowing someone to obtain water rights that are unconnected to the land on which the water is intended to be used would amount to allowing the person to reserve water rights while they had no ability to make beneficial use of the water. In addition, it is unclear how such a licence would comply with section 13(c) of the Water Act, which requires the appurtenant land to be adequately described in the licence. [49] Regarding Greengen s alternative remedy, the Manager argues that it would be inappropriate for the Board to remit the matter back to the Manager with directions to issue a licence if and when Greengen obtains the requisite land tenure. She submits that such a direction would amount to inappropriately fettering the Manager s discretion to issue a water licence. The Manager argues that, regardless of whether Greengen might have some success on the issues in the appeal, it would be pointless to hold a two-week hearing, at significant cost to all involved, when neither the Board nor the Manager are in a position to issue a water licence. The Manager submits that Greengen has taken no steps to challenge the Land Act decision or to otherwise obtain an interest in land to which a water licence could be appurtenant, and the Board has no jurisdiction to make a determination regarding the merits of the Land Act decision. The Panel s findings [50] At this stage of the proceeding, the Panel is concerned with the jurisdiction of the Board to grant the relief sought by Greengen in its Notice of Appeal and its submissions on the preliminary application. The Panel is not concerned with the question of whether any relief should be granted to Greengen in light of the fact that the land tenure has been refused, but rather whether any relief could be granted in such circumstances, it being understood that the question of land tenure is not res judicata. [51] In that regard, the Panel notes that Greengen is free to make another application for land tenure on the same, similar or different grounds than the application that was refused in 2009. The question of whether and how such a subsequent application for tenure would be handled by the statutory decisionmaker under the Land Act is not a matter for the Board, but it cannot be said at this stage that Greengen will never receive land tenure. [52] It is without question that a water licence cannot be issued other than appurtenant to land. This is clear from sections 12(3) and 13(c) of the Water Act, which state that a regional water manager must determine the appurtenancy of any licence to be issued, and must ensure that every licence that is issued specifies an appurtenancy that consists of land, a mine or an undertaking in BC. Without appurtenant land, (or an appurtenant mine or undertaking, which are defined terms in the Water Act), no licence under the Water Act may exist. Greengen does not take issue with this proposition, but rather argues that the Manager and, by extension, the Board, can issue a water licence conditional upon a grant of land tenure. In support of this proposition, Greengen cites section 12(1)(f) of the Water Act, which provides the Manager with broad discretion to issue a conditional or final licence on the terms the comptroller or the regional water manager considers proper [underlining added].
DECISION NO. 2009-WAT-015(a) Page 12 [53] The difficulty with Greengen s submission is that, whether a licence is conditional or final, it must still comply with the statutory requirements of a licence as defined in section 7 of the Water Act. Section 7(a) is particularly relevant to the present case, and it provides that a licence (be it conditional or final) may only be issued to an owner of land or a mine [underlining added]. The word owner is defined in section 1 of the Water Act to mean a person entitled to possession of any land, mine or an undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking [underlining added]. [54] Section 7 of the Water Act 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 Panel concludes that, as a matter of statutory interpretation, the Manager could never issue a licence to someone who is not an owner. Put another way, the Panel concludes that the Manager could never issue a licence conditional upon that person 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 could the Board direct the Manager to issue such a licence. [55] Although this Panel is not bound by previous decisions of the Board, the Panel notes that this reasoning is consistent with the Board s decision in Columbia Power Corporation v. Comptroller of Water Rights (Appeal No. 2003-WAT-003(a), March 19, 2003), in which the Board concluded at page 13 that a company holding an unexercised option to purchase land was not a riparian owner of land. The Board concluded that, until the option to purchase was exercised, the company did not have ownership or possession of any riparian lands. [56] The Panel also concludes that this interpretation of the Water Act is consistent with the purpose and structure of the Water Act. For example, section 27 of the Water Act provides that a licensee may, in certain circumstances, expropriate land reasonably required for the construction, maintenance, improvement or operation of works authorized under his or her licence. It could not have been intended by the legislature that a person could acquire a conditional licence without a current appurtenancy and, in reliance upon section 27, proceed to expropriate the very land necessary to become an owner entitled to hold a licence. An interpretation of the Water Act that would, or could, result in a subversion of the provisions of the Land Act dealing with land tenure is to be avoided. [57] Given that the Board, on appeal, only has only the powers set out under section 92(8) of the Water Act, including the powers of the Manager under the Water Act, the Panel concludes that the appeal must be dismissed for lack of jurisdiction to provide the remedies sought by Greengen. This dismissal is entirely without prejudice to the right of Greengen, should it become an owner within the meaning of the Water Act, to make application for a water licence on the same or different grounds as the licence refused in this case. [58] For all of these reasons, the Manager s preliminary application is allowed, and the appeal is dismissed.
DECISION NO. 2009-WAT-015(a) Page 13 3. Whether the Board should make an order of costs in favour of the SFN or Greengen. The Parties submissions [59] The SFN submits that it has been subjected to costs on a matter (i.e., Greengen s appeal) which had no merit or chance of success, in an extraordinary circumstance of a third-party challenge to First Nation accommodation, and costs should be granted directly to the SFN if the appeal is dismissed. [60] The SFN s submissions do not indicate which party (i.e., the Manager, Greengen, or both) should be ordered to pay the SFN s costs. [61] Greengen submits that, if any party is entitled to costs, it is Greengen. Greengen submits that its appeal is not frivolous, vexatious or lacking any chance of success. It also submits that the Manager and the SFN have brought their objection(s) six years after the appeal was commenced, and the failure of those parties to act in a timely manner constitutes a special circumstance meriting an award of costs in Greengen s favour. Greengen submits that it will be significantly and irreparably prejudiced if the appeal cannot proceed based on either the Manager s objection or the SFN s new objection. [62] The Manager submits that each party should bear its own costs in relation to this preliminary matter. The Manager argues that there is no basis to award costs, as the preliminary objection was raised to avoid the possibility of a hearing for an appeal in which no remedy may be available to Greengen. Further, the Manager submits that, if Greengen is prejudiced, that prejudice is due to Greengen s own inaction in failing to resolve the issue of land ownership so that it could meet the requirements in section 7 of the Water Act for holding a water licence. The Panel s findings The SFN s application for costs [63] Although the Board s February 10, 2015 letter provided the SFN with full party status in the appeal, the SFN has not yet determined the extent to which it will participate in the appeal hearing. The SFN s submissions state, in part, as follows: The position of the Squamish Nation, and the extent to which the Squamish Nation will participate in the proposed appeal, has not yet been determined. We must await the production of evidence and Statement of Points from the Appellant. [underlining added] [64] Based on the SFN s submissions, it is unclear at this time whether the SFN has accepted, or intends to accept, party status in the appeal. The Panel notes that the Board s power to award costs is limited to parties. Section 95(2) of the Environmental Management Act states that the Board may make orders requiring a party to pay all or part of the costs of another party in connection with the appeal, as determined by the appeal board [underlining added]. Thus, the Board may not have the authority to make costs awards in respect of participants who do not have
DECISION NO. 2009-WAT-015(a) Page 14 party status in an appeal. Without full argument on this point, and given that the SFN s submissions are unclear regarding whether the SFN intends to accept party status in the appeal, it is unclear whether the Board has any jurisdiction to make an order of costs in respect of the SFN at this time. However, for the purposes of addressing the SFN s request for costs, the Board will assume that the SFN either accepts or intended to accept party status in the appeal. [65] The Board s policy on costs is set out in its Procedure Manual, which states as follows at pages 45-46: The Board has not adopted a policy that follows the civil court practice of loser pays the winner s costs. The objectives of the Board s costs policy are to encourage responsible conduct throughout the appeal process and to discourage unreasonable and/or abusive conduct. Thus, the Board s policy is to award costs in special circumstances. Those circumstances include: (a) where, having regard to all of the circumstances, an appeal is brought for improper reasons or is frivolous or vexatious in nature; (b) where the action of a party, or the failure of a party to act in a timely manner, results in prejudice to any of the other parties; (c) where a party, without prior notice to the Board, fails to attend a hearing or to send a representative to a hearing when properly served with a notice of hearing ; (d) where a party unreasonably delays the proceeding; (e) where a party s failure to comply with an order or direction of the Board, or a panel, has resulted in prejudice to another party; and (f) where a party has continued to deal with issues which the Board has advised are irrelevant. A panel of the Board is not bound to order costs when one of the abovementioned examples occurs, nor does the panel have to find that one of the examples must have occurred to order costs. [66] Although the appeal was filed in 2009, the Panel finds that the delay in setting the appeal down for a hearing was not the result of unreasonable behaviour by any party, or for an improper purpose. The appeal was held in abeyance at Greengen s request so it could attempt to resolve the issues in the appeal without the need for a hearing. Although the matter was not resolved, the Board encourages parties to attempt to resolve appeals without the need for a hearing, as this can save costs. [67] In addition, although the SFN characterizes the appeal as an extraordinary circumstance of a third-party challenge to First Nation accommodation, the Panel notes that it is not extraordinary for appeals before the Board to involve issues of consultation and accommodation in respect of aboriginal rights. The Board has decided several previous appeals that involved issues regarding the Province s duty to consult with and accommodate First Nations in relation to a water licence issued
DECISION NO. 2009-WAT-015(a) Page 15 to a third party. As such, the subject matter and circumstances of the present appeal are not extraordinary. [68] Accordingly, the Panel finds that there are no special circumstances that warrant an award of costs in favour of the SFN. Greengen s application for costs [69] The Panel has already found, under Issue 1, that the delay between the filing of the appeal and the Board setting the January 2016 hearing dates was entirely Greengen s responsibility. Consequently, the Panel finds that any prejudice that Greengen may suffer from that delay does not justify an award of costs against the Manager or the SFN. Also, under Issue 1, the Panel found that the Manager raised the preliminary objection at a reasonable point in the appeal process, with sufficient time to for the parties and participant to make submissions on the objection, and for the Board to decide the objection, well before the appeal hearing. The timing of the preliminary objection caused no prejudice to Greengen in terms of its ability to respond to the preliminary objection, or to know the outcome of the objection well in advance of the hearing. [70] Consequently, the Panel finds that there are no special circumstances that warrant an award of costs in favour of Greengen. DECISION [71] In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the evidence before it, whether or not specifically reiterated here. [72] For the reasons provided above, the Panel finds that the Manager did not raise the preliminary objection too late. The Panel also finds that the Board has no jurisdiction to grant the relief sought by Greengen. Accordingly, the Manager s application to dismiss the appeal for lack of jurisdiction is allowed. [73] The applications for costs in favour of the SFN and Greengen are denied. Robert Wickett Robert Wickett, Q.C., Vice Chair Environmental Appeal Board November 19, 2015