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WATER - Licensing and permits - Transfer of license

Tuesday, February 27, 2018 @ 6:50 AM  


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Appeal by six petitioners from a judicial review judgment in favour of the Environmental Appeal Board. The petitioners were comprised of five limited partnerships and Harrison Hydro Inc. (Harrison), the named general partner of each limited partnership. Each limited partnership held a water licence and land tenure in conjunction with their respective power projects situated on five separate streams on Crown land within the South Coast Region. Each partnership agreement provided Harrison with the power to carry on the business and hold property for the sole benefit of each limited partnership. In 2013, a review of the water licences determined that the water licences were in the names of the limited partnerships, but the land tenure leases were all in the name of Harrison, as general partner. The Ministry adjusted the name on the water licences and began billing for water rentals on an aggregate basis, resulting in a fivefold increase in amounts payable under the licences. The petitioners objected. The Comptroller of Water Rights issued an order affirming the transfer of the licences into the general partner’s name with billing occurring on the basis of a single licensee for the five projects. The petitioners appealed to the Environmental Appeal Board. The Board concluded that Harrison held title to the Crown lease, and, as general partner, was the only entity with power to exercise control of the lands and licensee rights. Therefore, Harrison was an owner of the land for the purpose of the Act and the proper licensee of the licences at issue. The Board’s decision was affirmed as reasonable on judicial review. The petitioners appealed.

HELD: Appeal dismissed. The Board reasonably analyzed the manner in which the Water Act should apply to limited partnerships. There was nothing unreasonable or illogical in concluding that the general partner was the sole entity entitled to physical possession, occupancy and control of the appurtenant land. The Board’s interpretation was consistent with the legal principles applicable to limited partnerships and the partnership and trust agreements executed by the petitioners. There was nothing unreasonable in the Board’s decision-making process. The result fell within a range of possible, acceptable outcomes defensible in law and in fact. The petitioners failed to establish that the Board’s decision was unreasonable.

Harrison Hydro Project Inc. v. British Columbia (Environmental Appeal Board), [2018] B.C.J. No. 161, British Columbia Court of Appeal, D.F. Tysoe, P.M. Willcock and J.J.L. Hunter JJ.A., February 2, 2018. Digest No. TLD-February262018005