Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO WAT-003(a) In the matter of an appeal under section 40 of the Water Act, R.S.B.C. 1996, c BETWEEN: Columbia Power Corporation APPELLANT AND: Comptroller of Water Rights RESPONDENT AND: Teck Cominco Metals Ltd. THIRD PARTY BEFORE: DATE: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on February 25, 2003 APPEARING: For Appellant: David Bursey, Counsel For the Respondent: Livia Meret, Counsel For the Third Party: C.B. Johnson, Counsel PRELIMINARY ISSUE OF JURISDICTION STANDING This preliminary issue concerns an appeal filed by Columbia Power Corporation ( Columbia ) against the December 23, 2002, decision of James S. Mattison, Comptroller of Water Rights, Land and Water British Columbia Inc., (the Comptroller ) to issue Approval No. A (the Approval ) to Teck Cominco Metals Ltd. ( Teck ) for short-term diversion and use of water at the Waneta dam and hydroelectric facility on the Pend d Oreille River. The Comptroller and Teck challenge Columbia s standing to bring the appeal. All parties were given an opportunity to respond in writing to this preliminary issue. BACKGROUND Teck owns the Waneta Dam and Generating Station ( Waneta ), located on the Pend d Oreille River near its confluence with the Columbia River. Waneta commenced operation in 1954, and supplies power to Teck s zinc refining and lead smelting operation in Trail, B.C. Waneta also produces surplus power for sale to British Columbia Hydro and Power Authority ( BC Hydro ). Teck holds four Final Water Licences and one Conditional Water Licence that allow it to divert and use 25,000 cubic feet per second ( cfs ) of water at Waneta for power purposes.

2 APPEAL NO WAT-003(a) Page 2 Columbia is a Crown corporation wholly owned and controlled by the Province of British Columbia (the Province ). Pursuant to the 1995 Columbia Basin Accord, Columbia s primary mandate is to undertake power project investments as the agent of the Province on a joint venture basis with the Columbia Basin Trust (the Trust ). The Trust is a corporation established by the Province under the Columbia Basin Trust Act, R.S.B.C. 1996, c. 53, to serve the interests of the province s residents in the Columbia River Basin. In this appeal, Columbia claims that it has rights derived from the 1994 Power Asset Sale Development Agreement ( PASDA ) between Cominco Ltd. (now Teck) and the Province. Pursuant to the PASDA, Cominco Ltd. sold the Province the Waneta Expansion Right, defined as follows in section of the PASDA: Waneta Expansion Right means the right to fee simple title to the Waneta Expansion Land, the right to all necessary easements and statutory rights-of-way as contemplated herein, and the right to construct, own, operate and maintain a new dam, headworks, hydroelectric power house and other works and ancillary facilities on the lands near the Waneta Dam including without limitation: (a) the benefit of the hydraulic head and reservoir established by the Waneta Dam Structure, (b) the right to abut to the structure of the Waneta Dam Structure, (c) the benefit of the spillways and headworks of the Waneta Dam Structure, and (d) the rights of a riparian owner of land for the Expansion at that site, but does not include Cominco s Residual Interest; Section 3.4 of the PASDA sets out a process whereby Cominco Ltd. (now Teck) and the Province (now represented by Columbia and the Trust) will determine which portions of the lands required for the construction, maintenance, and operation of the Waneta expansion project will be subdivided out of certain larger parcels of land owned by Teck. Under section of the PASDA, if the Province has not exercised its right to have the Waneta Expansion Lands determined by December 31, 2034, Teck may request that the Province prepare and deliver subdivision plans. If the Province has not delivered those plans within one year of its receipt of Teck s request, the lands in question shall be free and clear of all obligations under the PASDA. In May 1994, the Province assigned its rights under the PASDA to Columbia for $52 million. In July 1995, the Province (through Columbia) entered into a Financial Agreement with the Trust, whereby the Province agreed, among other things, that the Trust and Columbia would enter into joint ventures to develop and manage certain power projects, including the expansion of the Waneta Dam. In April 2000, Columbia transferred an undivided one-half interest in the Waneta Expansion Right

3 APPEAL NO WAT-003(a) Page 3 to CBT Power Corp., a subsidiary of the Trust, in exchange for $26 million. Columbia and the Trust have not yet commenced expansion of the Waneta Dam. Meanwhile, in the mid-1990 s, Teck began the process of refurbishing the four aging generating units at Waneta, including upgrading the turbines. Upgraded turbines allow more water to be used in the generating units, resulting in increased capacity for generating electricity. In December 1994, Teck applied for a water licence for the use of 7,900 cfs of additional water, which is the amount of additional water that the four upgraded turbines would be capable of using. However, the Comptroller has been unable to issue a licence to Teck because under Order of the Lieutenant Governor in Council No. 608, dated May 2, 1991 ( OIC 608 ), the unrecorded waters of the Pend d Oreille River are reserved in favour of BC Hydro for power purposes. Consequently, only BC Hydro can receive a new licence for the use and diversion of water on the Pend d Oreille River, unless OIC 608 is amended or cancelled by the Lieutenant Governor in Council. A July 10, 2002 letter from the Comptroller to Teck, Columbia, and the Trust indicates that there are plans to amend OIC 608, and that Teck and Columbia have attempted to negotiate a formula for sharing the benefits to be realized from the upgrade project: A submission is currently being drafted for Cabinet s consideration on amending the water reserve on the Pend d Oreille River to provide the following: 1. Set aside the unrecorded water at Seven Mile for BC Hydro. 2. Set aside the unrecorded water at Waneta for Columbia Power Corporation and Columbia Basin Trust. 3. Order that the water reserved at Waneta may be licensed to Teck Cominco Metals Ltd. for an upgrade of the existing generating facilities at Waneta, which licence would be subject to the reserve. The submission will need to consider the rights and obligations of the parties to the [PASDA] Also, the parties to the PASDA are to negotiate a formula for sharing the net benefits that could be realized from the upgrade project after I understand the [Columbia] and Columbia Basin Trust (CBT) have been in discussions with [Teck], but that agreement has not been reached on a formula for sharing the benefits from the upgrade project. [Teck, Columbia, and the Trust] are invited to provide any information they consider relevant to Cabinet s deliberations on amending the reserve, the acquiring of licences subject to the reserve and the conditions under which water subject to the reserve might be licensed at the Waneta site

4 APPEAL NO WAT-003(a) Page 4 However, to date, OIC 608 has not been amended, and no licence for the use of the unrecorded water on the Pend d Oreille River has been issued. Nevertheless, one of the upgraded generating units (Unit No. 3) went into service in November 1995, and since that time, Teck has received short-term approvals under section 8 of the Water Act (the Act ), allowing it to divert and use for power purposes the additional volume of water that can be used in the upgraded Unit No. 3. In 2002, Teck commenced the upgrade of generating Unit No. 1. On November 25, 2002, Teck applied for an approval under section 8 of the Act for the use of 3,300 cfs of water for one year. 3,300 cfs is the additional volume of water that can be used by upgraded Units No. 1 and 3 combined. Columbia was notified of Teck s application for an approval, and Columbia made a submission to the Comptroller before the Approval was issued. On December 23, 2002, the Comptroller issued the Approval, which authorizes the short-term diversion and use of 3,300 cfs of water in Units No. 1 and 3 at Waneta during the period from December 23, 2002 to May 31, In a decision letter that accompanied the Approval, the Comptroller states: The enclosed approval for short term use of water has been issued in response to your application dated November 25, The application requested use of water for a one year term commencing December 23, However, the term of this approval is for a period from December 23, 2002 to May 31, By this date a decision is expected from the LGIC [Lieutenant Governor in Council] on the amendment of the reserve, which decision will indicate whether licensing may be considered for the use of water in the Waneta Upgrade Project. Depending on the LGIC s decision on the reserve, I should then be in a position to adjudicate TCML s [Teck s] water licence application. The upgraded Unit No. 1 went into service in early January On January 22, 2003, Columbia appealed the Comptroller s decision to issue the Approval. Columbia appeals on several grounds, including the following: The Comptroller erred in law when he found in his reasons for issuing the Approval that Teck s use of additional water under the Approval will not affect the rights of any riparian owner. The rights of Columbia and the Trust, and thereby the public interests represented by these agencies, are adversely affected by the Approval. The Comptroller has awarded to Teck benefits associated with the Waneta Expansion Right for the duration of the Approval without compensation to Columbia or the Trust. The Comptroller failed to give any weight to the rights of Columbia in granting the Approval, suggesting that any issue of interpretation of the PASDA is a private matter between the parties.

5 APPEAL NO WAT-003(a) Page 5 The Approval grants rights to Teck that are in conflict with the reserve under OIC 608. By issuing the Approval, the Comptroller seeks to grant indirectly what he acknowledges he may not grant directly. In its Notice of Appeal, Columbia requested a stay of the Approval pending a decision on the merits of the appeal. By a letter dated January 23, 2003, the Board offered the parties an opportunity to make submissions on Columbia s application for a stay. In her initial submissions with respect to Columbia s stay application, counsel for the Comptroller raised a preliminary objection to Columbia s standing to bring the appeal. The Comptroller argued that Columbia does not fall within any of the categories of persons listed in section 40(1) of the Act who may appeal an order of the Comptroller. Specifically, the Comptroller submitted that Columbia is neither the person subject to the order, an owner whose land is or is likely to be physically affected by the order, nor a licensee, riparian owner or applicant for a licence under section 40(1) of the Act. In its initial submissions on the stay application, Teck raised similar objections to Columbia s standing to bring the appeal. Consequently, by a letter dated February 10, 2003, the Board advised that it would be premature to consider the stay application until the standing issue was resolved. The Board requested that the parties provide submissions with respect to Columbia s standing to bring the appeal, and advised that its decision on the stay application would be postponed pending its decision on Columbia s standing. ISSUE Whether Columbia has standing to appeal the issuance of the Approval. RELEVANT LEGISLATION The following portions of the Water Act are relevant to this matter: Definitions 1 In this Act: approval means an approval of the comptroller, regional water manager or engineer under section 8 or 9; 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; order includes a decision or direction, whether given in writing or otherwise; 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;

6 APPEAL NO WAT-003(a) Page 6 right includes power, authority, benefit, privilege and remedy; undertaking, in relation to an application or licence, means a project for the diversion, carriage, use and sale of water or power produced from water the use of which is referred to in the application or licence, and includes all land and other property acquired or to be acquired in connection with the project, and the general scheme for the acquisition, maintenance and operation of the works; Short term use of water 8 (1) If diversion or use of water is required for a term not exceeding 12 months, the comptroller or a regional water manager may, without issuing a licence, grant an approval in writing, approving the diversion or use, or both, of the water on the conditions the comptroller or regional water manager considers advisable, but the diversion or use, or both, are subject to the same provisions as if the approval were a licence. Objections to applications 11 (1) A licensee, riparian owner or applicant for a licence who considers that his or her rights would be prejudiced by the granting of an application for a licence may, within the prescribed time, file an objection to the granting of the application. Appeals to Environmental Appeal Board 40 (1) An order of the comptroller, the regional water manager or an engineer may be appealed to the Environmental Appeal Board established under the Environment Management Act by (a) the person who is subject to the order, (b) an owner whose land is or is likely to be physically affected by the order, or (c) a licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order. DISCUSSION AND ANALYSIS Whether Columbia has standing to appeal the issuance of the Approval. Columbia submits that it has standing to appeal the Approval as a riparian owner who considers that its rights are or will be prejudiced by the order. Specifically, Columbia submits that the Approval is on order as defined in section 1 of the Act, and Columbia considers that its substantive and procedural rights have been prejudiced by the Approval. Columbia notes that riparian owner is not defined in

7 APPEAL NO WAT-003(a) Page 7 the Act, but owner is defined in the Act as 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 [Columbia s emphasis]. Columbia notes that undertaking is defined in the Act as a project for the diversion, carriage, use or sale of water or power produced from water the use of which is referred to in the application or licence, and includes all land or property acquired or to be acquired in relation with the project, and the general scheme for the acquisition, maintenance and operation of the works. Columbia also refers to the following definition of riparian found in Black s Law Dictionary, 6 th ed.: Belonging or relating to the bank of a river or stream; of or on the bank. With regard to those definitions, Columbia submits that it has both a substantial interest in land and a substantial interest in the Waneta Dam structure, which is a licensed undertaking, and these interests are current rights. Columbia maintains that its status as a riparian owner derives from its acquisition of the Waneta Expansion Right, which includes the Option to Purchase, before December 31, 2034, lands that are riparian lands. While Columbia acknowledges that it has not yet exercised the Option to Purchase, and that the subdivisions and transfers of the Waneta Expansion Lands contemplated by section 3.4 of the PASDA have not yet occurred, it argues that an option to purchase land is a current and substantial interest in land, and cites a number of court decisions in support of that proposition. Columbia maintains that, to be a riparian owner under the Act, there is no requirement for it to be in actual receipt of the lands in which it claims rights. Rather, Columbia maintains that, under the Option to Purchase, Columbia holds current property rights related to the lands on which Waneta is located. Further, Columbia asserts that the PASDA gives it current rights to the benefits associated with the use of the hydraulic head and reservoir created by the Waneta Dam, which is a licensed undertaking. Columbia submits that both of these interests are substantial and bring Columbia within the definition of owner under the Act. Teck submits that Columbia has no standing to appeal the Approval because it is neither a riparian owner as defined at common law, nor an owner as defined in the Act. Teck submits that Columbia is not a riparian owner, as that term is used in common law. Teck refers to the following passage from Jowitt s Dictionary of English Law: A riparian proprietor or owner is a person who owns land through or past which a river runs; and riparian rights are those arising from such property. Teck submits that Columbia does not own land through which the Pend d Oreille River runs, and currently has no rights to make use of the water in the Pend d Oreille River. Teck maintains that Columbia s rights, under the PASDA, to land and certain assistance from Teck with respect to construction of new hydroelectric facilities do not provide a tangible benefit to Columbia until it is ready to proceed with the expansion project.

8 APPEAL NO WAT-003(a) Page 8 Teck further submits that the term riparian owner as used in section 11 and 40 of the Act is different from the unmodified word owner, which is most commonly used in the Act as a whole without a modifying term such as riparian. Teck submits that when the word owner appears with a modifier, the definition of owner found in the Act does not apply to the modified description of owner. For example, Teck notes that under section 23(4) of the Act, a notice must be sent to every registered owner of the land. Teck maintains that the definition of owner in the Act is not applicable to the phrase registered owner because a person entitled to possession of land may or may not be a registered owner. Teck also argues that Columbia is not an owner as defined in the Act because it is not entitled to possession of any land, mine, or undertaking on the Pend d Oreille River. Teck notes that Columbia relies on the latter part of the definition of owner, suggesting that the latter part of the definition stands alone and that an owner may be either a person entitled to possession of any land or a person who has a substantial interest in the land. Teck notes that the first part of the definition is connected to the second part by the word includes and not the word or. Teck argues that the purpose of the second part of the definition is not to create a second category of persons that qualify as owners, but rather, to make it clear that an owner, for the purposes of the Act, could have a possessory interest in land without having legal title to that land. Finally, Teck argues that Columbia does not have a substantial interest in any land or undertaking that is relevant to this appeal. Teck notes that section 3.4 of the PASDA sets out a procedure whereby the lands that may be owned by Columbia in the future are to be determined and subdivided from the lands subject to the Option to Purchase. Teck notes that the boundaries of the land that Columbia may own in the future are not defined in the PASDA, and will not be determined until the Waneta expansion is designed and its land requirements are determined. Teck submits, therefore, that the Option to Purchase covers much more land than Columbia will require for the expansion, and does not provide Columbia with the type of interest in that land which relates to riparian rights. Teck also submits that all but one of the court decisions cited by Columbia refer to an option to purchase as an equitable interest in land rather than a substantial interest in land. Teck notes that the definition of owner does not refer to equitable interest, and argues that it would be untenable to suggest that a person holding an equitable interest in land qualifies as a riparian owner, given that a mortgage, for example, can be considered an equitable interest in land. Similarly, Teck argues that the other benefits described in the Waneta Expansion Right, such as the benefit of the hydraulic head and reservoir created by the Waneta Dam, can only be realized if and when the Waneta expansion project is constructed. Teck argues that Columbia has no current ownership or other interest in the Waneta Dam, the licensed undertaking in this case, nor is Columbia entitled to possession of the Waneta Dam. Teck submits that Columbia s ability to receive benefits from the Waneta Dam once the expansion project is completed does not provide Columbia with any substantial interest in that undertaking, and does not provide Columbia with standing as a riparian owner.

9 APPEAL NO WAT-003(a) Page 9 The Comptroller also argues that Columbia has no standing to appeal. The essence of his arguments are, regardless of the interpretation of riparian owner, Columbia does not meet the test and any interests it has or may have will not be adversely affected by the issuance of the Approval. The Comptroller submits that Columbia s rights under the PASDA do not provide evidence of riparian ownership. The Comptroller notes that section of the PASDA states: Waneta Expansion Land means that part of the lands described in Schedule that is determined in accordance with section 3.4; The Comptroller submits that, on the basis of land title searches of the lands listed in Schedule , Columbia holds option to purchase XH (the Option to Purchase ) on the following lands currently owned by Teck: Sublot 2, Township 7A, Kootenay District, Plan X66, Parcel Identifier: ; Sublot 4, Township 7A, Kootenay District, Plan X66, Parcel Identifier: ; and Sublot 6 except part included in Plan 11116, Parcel Identifier: The Comptroller submits that under the terms of the Option to Purchase, particularly sections 5 and 11, possession of the lands are not delivered to Columbia until Columbia exercises the Option and an agreement for the purchase and sale of the lands is completed. The Comptroller maintains that Columbia has not yet exercised the Option to Purchase, and no subdivisions or transfers of the lands, as contemplated by section 3.4 of the PASDA, have taken place. The Comptroller submits, therefore, that Columbia has not yet exercised its rights in respect of the Waneta Expansion Land, and until those transactions take place, Columbia does not qualify as an owner of land or a riparian owner for the purposes of this appeal. The Comptroller further submits that the Option to Purchase is not a substantial interest in land that confers on Columbia possession of land, or confers on Columbia the status or rights of a riparian owner. The Comptroller submits that possession of the lands described in the Option to Purchase is not delivered until Columbia exercises the Option and an agreement for purchase and sale of the lands is completed. The Comptroller argues that, until those transactions occur, Columbia is not a riparian owner in relation to the lands or the Waneta expansion project. In particular, the Comptroller refers to the definitions of possession found in several law dictionaries, including Jowitt s Dictionary of English Law, 2 nd ed.: Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons.

10 APPEAL NO WAT-003(a) Page 10 The Comptroller also cites the British Columbia Supreme Court decision in Chadwick v. Baryluk, [1991] B.C.J. No. 279 (Q.L.), which states as follows at page 3: at law, possession means more than a mere license but rather imports a right to control and in the context of real property, the right to exclude all others from possession and the right to permit other persons to occupy or reside on the property absent any covenant to an owner of the property to the contrary. On the basis of those authorities, the Comptroller submits that Columbia does not yet have the right to possession of the lands described in the Option to Purchase, and will not obtain possession until it exercises the Option to Purchase. The Comptroller further notes that under the PASDA and the Option to Purchase, Columbia has a right to acquire those portions of the lands that are required for the Waneta expansion project. However, the boundaries of those lands that Columbia might acquire have not yet been determined, and it cannot be assumed that Columbia will acquire the riparian portions of those lands. The Comptroller maintains that Columbia does not, at this time, have those riparian lands and cannot make beneficial use of water in relation to those lands, and in any event, the Approval will not change the operation of Waneta such that it would adversely affect any riparian land. The Comptroller submits that a person can only become a riparian owner through the ownership of lands adjacent to a stream, and in this case, Columbia has certain contractual rights but does not yet own lands on the Pend d Oreille River. The Comptroller notes that under the Statutory Right of Way, Teck is referred to as the Owner of the lands, while Columbia is simply referred to as Columbia. The Comptroller argues, therefore, that Teck is the riparian owner and Columbia is the holder of certain contractual rights. (Columbia states that the Comptroller s submissions with respect to Columbia s Statutory Right of Way are irrelevant because Columbia s rights flow from the PASDA and the Option to Purchase.) Similarly, the Comptroller argues that under the Waneta Expansion Right, as defined in the PASDA, Columbia acquired certain contractual rights that do not confer a substantial interest in riparian land or the status of riparian owner until the Waneta Expansion Lands are transferred to Columbia. In particular, the Comptroller notes that paragraph (d) of the definition of Waneta Expansion Right contemplates a transfer of the rights of a riparian owner of land for the Expansion. The PASDA further states: Expansion means the hydroelectric facilities to be constructed, operated and maintained utilizing one of the Expansion Rights, excluding any equipment and facilities to interconnect the Expansion with the Waneta Dam [the Comptroller s emphasis]

11 APPEAL NO WAT-003(a) Page 11 Based on those definitions in the PASDA, the Comptroller argues that Columbia s acquisition of the rights of a riparian owner in relation to Waneta is linked to the construction of the Waneta expansion project, which has not occurred. In summary, the Comptroller submits that Columbia does not, by virtue of the Option to Purchase or its contractual rights under the PASDA, qualify as a person having a substantial interest in the lands such as would qualify Columbia to appeal a decision under the Act. Finally, the Comptroller argues that if Columbia has no standing as an appellant in respect of the Approval, then it has no standing to request a stay of the Approval. The Panel notes that in order to have standing to appeal the Approval, Columbia must be either: (a) the person who is subject to the order, (b) an owner whose land is or is likely to be physically affected by the order, or (c) a licensee, riparian owner or applicant for a licence who considers that their rights are or will be prejudiced by the order. It is accepted that Columbia is not the person subject to the Approval, and Columbia does not claim to be an owner whose land is or is likely to be affected by the Approval. Therefore, Columbia does not fall within sections 40(1)(a) or (b) of the Act. With respect to section 40(1)(c), Columbia does not claim to be a licensee or an applicant for a water licence, but claims to be a riparian owner who considers that their rights are or will be prejudiced by the order. Specifically, Columbia claims to be a riparian owner in relation to the Waneta Expansion Lands, which include riparian lands adjacent to the Pend d Oreille River, by virtue of the Waneta Expansion Right. The term riparian owner is not defined in the Act. The word owner is defined in the Act, but the parties dispute whether that definition of owner applies to the term riparian owner. The Panel notes that riparian owner is a term that originates from the common law and has a very specific meaning in common law. Black s Law Dictionary, 6 th ed., provides the following definition of riparian owner: Riparian owner. One who owns land on bank of river, or one who is owner of land along, bordering upon, bounded by, fronting on, abutting or adjacent and contiguous to and in contact with river. [italics added] The legislature may incorporate common law terms into legislation in the expectation that they will continue to bear their common law meaning. As stated in Sullivan and Driedger on the Construction of Statutes, 4 th ed., 343:

12 APPEAL NO WAT-003(a) Page 12 When common law terms and concepts are used in legislation, they are presumed to retain their common law meaning. However, the Panel notes that the legislature s choice to define owner within the Act may indicate a departure from the common law. If so, this would expand the common law definition considerably from a person who owns land along a river to include a broad class of people - in particular, those entitled to possession of any land, mines or undertakings which are on the banks of or adjacent to rivers, including a person with a substantial interest in them. As it is a presumption that common law terms and concepts are used in the legislation, the question is whether this presumption has been rebutted such that the legislature intended for the broader statutory definition of owner to apply. The Panel finds that the presumption has not been rebutted: the legislature intended for the common law definition to apply. The term riparian owner only appears in sections 11 and 40 of the Act, which deal with appeals to the Board and objections to the issuance of water licences. In both of these sections, it is of particular interest that riparian owner is grouped with licensees and applicants for a licence. It is also of particular note that in both of these sections, these categories of people must consider that their rights are, would or will be prejudiced. It is a principle of statutory interpretation that where 2 or more terms are linked by and or or, they serve an analogous grammatical and logical function within a provision. This parallelism is said to invite the reader to look for a common feature among the terms, which can be used to resolve ambiguity or limit the scope of the terms. In the case of section 11 and 40 of the Act, the common feature is the word rights. The Panel finds that right is defined in section 1 of the Act to include power, authority, benefit, privilege and remedy. In this context the Panel is of the view that these words must be read as meaning a right in relation to water and the use of water. Currently, a riparian owner at common law has a residual common law right to the use of water for domestic purposes - subject to any limitations under the Act. Pursuant to section 42(2) of the Act, it is not an offence for a person to divert unrecorded water for domestic purposes or for prospecting for mineral. This is different from the statutory rights that belong to a licensee or applicant for a license under the Act. However, they are all similar in that there is some right which is or may be prejudiced by the issuance of another licence or order on a stream. As the rights that belong to a riparian owner are common law rights, the appropriate definition for riparian owner should also be the common law definition. For these reasons the Panel finds that the common law definition of riparian owner applies to sections 11 and 40 of the Act.

13 APPEAL NO WAT-003(a) Page 13 Since Columbia only claims standing as a riparian owner, the question becomes whether Columbia, as a holder of the Waneta Expansion Right, is a riparian owner as defined by the common law. The Black s law definition of riparian owner (reference above) identifies an owner as someone who is, in the present sense, the owner of riparian land. This interpretation is consistent with Jowitt s Dictionary of English Law, cited by Teck, which states that a riparian owner is a person who owns land through or past which a river runs [italics added]. These definitions support a conclusion that for Columbia to be a riparian owner with standing to appeal the Approval, Columbia must presently own land through or past which the Pend d Oreille River runs. Under the terms of the Option to Purchase, ownership and possession of the Waneta Expansion Lands, including any riparian lands along the Pend d Oreille River that are covered by the Option to Purchase, is not delivered to Columbia until Columbia exercises the Option to Purchase. In particular, sections 5 and 11 of the Option to Purchase state: 5. In the event this Option is exercised in whole or in part from time to time, the parties hereto agree that upon such exercise a binding agreement of purchase and sale of the Lands or portions thereof as applicable shall be deemed to be formed on the following terms and conditions 11.Cominco [Teck] shall deliver possession of the Lands or portions thereof as applicable on the Completion Date or Completion Dates as applicable, subject only to Permitted Encumbrances. There is no evidence that Columbia has exercised the Option to Purchase or that the subdivisions and transfers of lands contemplated by section 3.4 of the PASDA have taken place. It is clear that until those transactions take place, Columbia does not have ownership or possession of any riparian lands on the Pend d Oreille River. The Panel has considered that Columbia holds a Statutory Right of Way, which grants Columbia the right of ingress and egress on land owned by Teck. However, it is clear that Teck remains the owner of the lands covered by the Statutory Right of Way, until such time that Columbia exercises the Option to Purchase and receives transfer of those lands. Finally, and importantly, the Panel finds that even if Columbia were a riparian owner, regardless of the definition, there is no evidence that Teck s exercise of its rights under the Approval would have an adverse effect on any riparian land that Columbia claims to own. There is no evidence that the Approval will change the operation of Waneta in a way that would affect any riparian land or prejudice any riparian rights. Accordingly, Columbia could not reasonably consider that its rights are or will be prejudiced by the order as is contemplated by section 40(1(c) of the Act.

14 APPEAL NO WAT-003(a) Page 14 For all of these reasons, the Panel finds that Columbia has no standing to appeal the Approval, and therefore has no standing to request a stay of the Approval. Given these findings, the Panel need not address whether there is a right of appeal from the granting of an approval under section 8 of the Act. DECISION In making this decision, the Panel of the Environmental Appeal Board has considered all of the evidence before it, whether or not specifically reiterated here. For the reasons provided above, the Panel finds that Columbia has no standing to appeal the Approval. Consequently, the Board has no jurisdiction over an appeal of the Approval by Columbia, and Columbia has no standing to request a stay of the Approval. Accordingly, the appeal is rejected for lack of jurisdiction. Alan Andison, Chair Environmental Appeal Board March 19, 2003