Burrard Power Co. v. The King

Burrard Power Co. v. The King

While the lands and their incidents within the Railway Belt remain vested in the Dominion under Article 11 of the Terms of Union and implementing statutes, provincial authorities under the Water Clauses Consolidation Act, 1897 had no competence to grant water‑records that would interfere with the proprietary rights of the Dominion (including navigation, timber and fisheries); the provincial grant of 25,000 inches was therefore invalid, was cancelled and injunctive relief was appropriate.

Citation
(1910) 43 SCR 27
Parties
Appellant / Defendant: Burrard Power Co.; Appellant / Defendant (representing Province): Attorney-General for British Columbia; Respondent / Plaintiff: His Majesty The King (on information of the Attorney-General of Canada)
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 February 1910
Procedural Posture
Appeal to Supreme Court of Canada From Exchequer Court of Canada (constitutional Challenge) / Final Determination on Appeal (judgment Rendered)
Outcome
Appeal dismissed; judgment of Exchequer Court affirmed
Legal Topics
Railway Belt (terms of Union, B.c.), Division of Powers (federal Vs Provincial), Water Rights and Water Records, Navigability and Public Navigation Rights, Ultra Vires Provincial Grants
Source Language
English
Constitutional Law Property Law (crown Lands) Administrative Law Maritime Law / Navigation Law Equity (injunction) Railway Belt (terms of Union, B.c.) Division of Powers (federal Vs Provincial) Water Rights and Water Records +2 more

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Parties

Burrard Power Co.

Appellant / Defendant

Attorney-General for British Columbia

Appellant / Defendant (representing Province)

His Majesty The King (on information of the Attorney-General of Canada)

Respondent / Plaintiff

Procedural Posture

Appeal to Supreme Court of Canada From Exchequer Court of Canada (constitutional Challenge) / Final Determination on Appeal (judgment Rendered)

Legal Issues

  1. 1 Whether provincial Water Clauses Consolidation Act grants of water-records can bind or affect lands and waters within the Railway Belt vested in the Dominion under the Terms of Union
  2. 2 Whether the provincial grant of 25,000 inches of water would materially interfere with proprietary rights of the Dominion (navigation, timber, fisheries) and thus be invalid
  3. 3 Whether the proposed diversion would destroy or substantially impair navigability of the Lillooet River and so fall under federal jurisdiction

Ratio Decidendi

While the lands and their incidents within the Railway Belt remain vested in the Dominion under Article 11 of the Terms of Union and implementing statutes, provincial authorities under the Water Clauses Consolidation Act, 1897 had no competence to grant water‑records that would interfere with the proprietary rights of the Dominion (including navigation, timber and fisheries); the provincial grant of 25,000 inches was therefore invalid, was cancelled and injunctive relief was appropriate.

Court Disposition

Appeal dismissed; judgment of Exchequer Court affirmed

Orders

  • Declaration that the grant (water‑record) is invalid and conveyed no interest to the company
  • Cancellation of the water‑record granted to Burrard Power Co.