Elroy Trithardt Appellant (Appellant) v. Kingsley Conservation and Development, 2019 SKCA 42

Court of Appeal for Saskatchewan Docket: CACV3085 Citation: Trithardt v Kingsley Conservation and Development Area Authority , 2019 SKCA 42 Date: 2019-05-09 Between: Elroy Trithardt Appellant (Appellant) And Kingsley Conservation and Development Area Authority Respondent (Respondent) And The Saskatchewan Municipal Board Tribunal Before: Jackson, Caldwell and Schwann JJ.A.

Disposition: Opinion Written reasons by: The Court Stated Case From: The Saskatchewan Municipal Board Case Heard: March 28, 2019 Counsel: Jaime Carlson for the Appellant No one appearing for the Respondent No one appearing for the Tribunal The Court I. Introduction [ 1 ] This is a stated case in which the Saskatchewan Municipal Board [Board] seeks the opinion of the Court on five questions of law arising out of proceedings before its Assessment Appeals Committee [Committee], sitting concurrently on several ratepayer appeals under s. 74 of The Conservation and Development Act , RSS 1978, c C-27 .

Elroy Trithardt is one of the appellant ratepayers. [ 2 ] The appeals before the Committee were taken from decisions of the Court of Revision [Kingsley COR] of the Kingsley Conservation and Development Area Authority [Kingsley Authority] following its resolution of assessment complaints filed under s. 61 of The Conservation and Development Act with respect to the 2016 assessment and rate levy in the Kingsley Conservation and Development Area.

The various ratepayers’ complaints also impugned the assessments and rates levied by the Kingsley Authority in the 2013 to 2015 assessment cycles, as well as the Kingsley Authority’s broader compliance with The Conservation and Development Act . II. Questions [ 3 ] The Board has stated the following questions of law [Questions] for the Court pursuant to s. 77 of The Conservation and Development Act : (

a) Does the Kingsley Authority have the power to add lands to the assessment? Alternatively, did the Committee incorrectly decide the Kingsley Authority could add the assessment of benefits to new lands? (

b) Does the Committee have the authority to consider what evidence is relevant or irrelevant? (

c) Does the Committee have the authority to consider issues of funds and accounts under s. 34(7) of the Act ? (

d) Does anything in the Act suggest the authority granted in ss. 34(4) and (5) applies to the Kingsley Authority? (

e) Is the intent of the Act that the authority in s. 34(5) is given to the Lieutenant Governor in Council? III.

Interpretation [ 4 ] The following

definitions from The Conservation and Development Act assist in the

interpretation of that Act and in an understanding of this opinion:

Interpretation 2 In this Act: (a) “area” means a conservation and development area established pursuant to this Act or any former Conservation and Development Act ;

(b) “area authority” means the governing body of an area; (c) “corporation” means the Water Security Agency, as continued pursuant to The Water Security Agency Act ; … (e) “engineer” means a professional engineer, as defined in The Engineering and Geoscience Professions Act , or a person graduated in science or engineering from a recognized university or attending such a university with a view to graduating in science or engineering, who is appointed to a position in the public service of Saskatchewan, or is employed by an agency of the Government of Canada assisting in the conservation and development of the soil and water resources of Saskatchewan; (e.1) “maintain” or “maintenance” includes preserving works and keeping them in good repair for proper operation; (f) “minister” means the member of the Executive Council to whom for the time being the administration of this Act is assigned; (g) “owner” means: (

i) an individual who is the registered owner of land, a purchaser of land under an agreement for sale or a lessee of provincial land under a lease for a term of five years or more; (ii) a shareholder of a duly incorporated co-operative association or of a corporation that is engaged in farming and that owns land, who is eighteen years of age and is actively engaged in the farming operations of the co-operative association or corporation; (iii) a representative of a co-operative association, corporation or other similar organization that owns land but is not engaged in farming, who is nominated in writing to represent that organization; (iv) a representative of any church or other religious organization that owns land, who is nominated in writing to represent that church or organization, whether or not that church or organization is engaged in farming; … (i) “secretary treasurer” means the secretary treasurer of the area authority; (j) “works” means any work that is necessary to save, conserve or develop any land or any water resource. [ 5 ] The following words and phrases defined in The Municipal Board Act , SS 1989-90, c M-23.2, assist with the

interpretation of provisions of that Act and are relevant to our opinion:

Interpretation 2

(1) In this Act: (a) “board” means the Saskatchewan Municipal Board established pursuant to

section 3; … (b) “conservation and development area” means an area as defined in The Conservation and Development Act ; … (d) “local authority” means a municipality or a conservation and development area; (e) “minister” means the member of the Executive Council to whom for the time being the administration of this Act is assigned; IV.

Opinion [ 6 ] This matter is a stated case under s. 77(1) of The Conservation and Development Act , but the Questions relate to jurisdictional and procedural issues that were raised in an appeal hearing and led to the Committee’s decision in Various v Kingsley Conservation and Development Authority , AAC 2016-0095 (4 April 2017) Assessment Appeals Committee Decision (2d Qtr) [ Committee Decision ]. For analytical purposes, rather than setting out the procedural and other background of this matter separately, we address the procedural evidence where it is relevant to our opinion.

We turn now to the Questions asked of us. A. Does the Kingsley Authority have the power to add lands to the assessment? Alternatively, did the Committee incorrectly decide the Kingsley Authority could add the assessment of benefits to new lands? [ 7 ] Yes, as to the first of these two questions. Under s. 34(4) of The Conservation and Development Act , an area authority has, for the purposes of assessment and levy, the authority to determine what lands in an area are benefitted by works in the area.

However, an area authority must exercise its powers under s. 34(4) in accordance with the requirements of The Conservation and Development Act and the law. In this regard, the Kingsley Authority erred in law by failing to exercise its statutory power under s. 34(4) with respect to the 2016 assessment in accordance with those requirements.

[ 8 ] The provisions of The Conservation and Development Act that are the principal focus of the Questions are: Levy for costs of construction, etc. 34

(1) In this Part “assessment roll” and “roll” mean the assessment and tax roll mentioned in

section 58.

(2) The costs of the construction of works constructed or to be constructed by the area authority, the costs of operating, maintaining and repairing all works constructed or continued in the area pursuant to this Act and the costs of conducting the affairs and business of the area shall be raised through a levy upon the assessed benefitted lands in the area. …

(4) Subject to subsection (5), a rate shall be levied equally on each assessed benefitted acre; but where there are, or may be, variations in the benefits, the benefitted acres may be placed in groups on the basis of the benefits derived and in such case the rate shall be the same for each acre in the same assessment group.

(5) The Lieutenant Governor in Council may, if he considers that the lands to be taxed are not or will not be benefitted equally, prescribe the basis on which the lands shall be taxed so that each parcel of land will be taxed equitably in relation to the assessment of each other parcel having regard to the varying degrees to which the respective parcels of land are benefitted or to be benefitted, and thereupon the land shall be taxed on the basis so prescribed.

(6) Where a municipality in which lands in respect of which the area authority proposes to levy a rate are situated agrees to make a grant to the area authority the area authority may accept the grant: (

a) in lieu of levying the rate against those lands for the current year in which case the area authority shall make no levy for that year; or (

b) as a reduction in the amount to be raised for the current year by levying a rate on those lands.

(7) Where, in the opinion of the area authority, it is in the interest of owners in the area to provide a fund for the payment of costs that may be incurred, by reason of flooding or other unforeseen conditions, in the construction, operation, maintenance and repair of works and in the conduct of the affairs and business of the area, the area authority may fix a rate to be levied annually against lands that may be benefitted through the incurring of such costs, and the moneys collected shall be deposited by the secretary treasurer in a separate account and shall be used only for the purpose of paying such costs. [ 9 ] As can be seen from the wording of the cited provisions, The Conservation and Development Act is an old statute in critical need of update.

The Committee made this observation in the Committee Decision and we concur. [ 10 ] Notwithstanding its outdated language, the scheme of the statute is clear. The Legislature enacted The Conservation and Development Act to assist with the conservation and development of land and water resources in Saskatchewan through the construction, operation and maintenance of works.

To achieve this purpose, the Act authorises the establishment of conservation and development areas (Part I), empowers the Water Security Agency and area authorities to construct, operate and maintain works (Part II and s. 24), provides for the governance of the area by an area authority (Part III), and authorises area authorities to raise funds through levies on “the assessed benefitted lands in the area” and through debentures (Part IV). [ 11 ] In more particular terms, the minister, on the petition of owners (s. 5) or at the minister’s own initiative (s. 3(1)), may establish a conservation and development area where “land therein is being benefitted or can be benefitted by means of works” (s. 3(1)).

The Act defines works as “any work that is necessary to save, conserve or develop any land or any water resource” (s. 2(j)). Under ss. 7, 8 and 9, the minister may, upon petition or application by an area authority, alter the geographic boundaries of an area by adding or withdrawing lands from it.

Importantly, under s. 9(2), where lands are to be withdrawn from an area, any petition to the minister must be accompanied by the statutory declaration of an engineer averring that: … no portion of any of the parcels of land described in the resolution [of the area authority] is benefitted by works constructed or will be benefitted by works to be constructed or properly liable to an assessment for the costs of operating, maintaining or repairing any works or of conducting the affairs and business of the area … [ 12 ] With approval of the minister, two area authorities may transfer land from one area to the other area (s. 10) and two or more area authorities may amalgamate (s. 11).

Relevant to the Court’s opinion, where two area authorities petition the minister to transfer land, the minister must be satisfied (s. 10(2)): ... (

a) that appropriate provisions have been made for transfer of tax funds that have been collected for construction and maintenance purposes on the land involved; and (

b) that satisfactory agreement has been reached for the future construction, operation and maintenance of works associated with the land involved; … [ 13 ] When it comes to the membership of an area authority, i.e., the individuals elected by the owners to hold office in the area authority government, s. 15(3) provides: 15

(3) Where an area includes two or more drainage or subdrainage basins each requiring principal works or more than one system of works extending from or leading to principal works, the minister may, for the purpose of providing for representation of the owners of land in any such basin, cause the area to be divided into divisions by an engineer employed in the department and in such case, without altering the total number of members required by subsection (1), there shall be such number of representatives on the area authority from

each division as the minister may by order specify. [14] Under ss. 34(2) and 34(4), the power to assess land and to levy a rate on “assessed benefitted acres” in an area resides at firstinstance with the area authority.

While not express in those sections, the fact the power resides with an area authority is clear if referenceis had to s. 34(6), which contains the phrase “lands in respect of which the area authority proposes to levy a rate” (emphasis added).Interpretational assistance is also found by reference to ss. 58 to 73 and ss. 78 to 86, which pertain to assessment, taxation and assessmentappeals, because those sections cannot be read as being consistent with the overall scheme of The Conservation and Development Act, orwith the supervisory jurisdiction under The Municipal Board Act in local authority tax assessment matters, unless an area authority has thepowers set forth under ss. 34(2) and 34(4).

This is a complete answer to Question 4 as it relates to the authority of an area authority toexercise the power to assess a levy under s. 34(4). [15] What then are the specific powers of an area authority under ss. 34(2) and 34(4)? The sections authorise an area authority todetermine what land in the area benefits from the construction, operation, maintenance and repair of works and otherwise from thebusiness and affairs of the area. In the terminology of The Conservation and Development Act, the lands so assessed are the “assessedbenefitted lands”.

The sections also authorise an area authority to assess a levy on assessed benefitted lands. Under ss. 81 to 85, the levy iscollected as a municipal tax through the auspices of the rural municipality in which the assessed benefitted lands are located. [16] However, there are a number of fetters on an area authority’s powers under ss. 34(2) and 34(4).

First, an area authority’spowers under s. 34(4), and its decisions taken in exercise of those powers, are expressly subject to s. 34(5), meaning the LieutenantGovernor in Council (i.e., in practical effect, the provincial cabinet) may override an area authority’s exercise of its s. 34(4) powers usingthe power under s. 35(5) (see our answer to Question 5 below). [17] Second, the area authority’s powers under ss. 34(2) and 34(4) must be exercised in accordance with the broader requirements ofThe Conservation and Development Act. The Court has already addressed this constraint in

part in Haas v Langenberg East Conservationand Development Area Authority No. 171, 2000 SKCA 66, 199 Sask R 34 [Haas], where we opined: Having regard for these provisions, we are of the opinion an area authority does not have the power under subsection 34(2) to impose alevy upon all lands situated in a conservation and development area on the basis alone they are situated within the area.

There are several indications to that effect in these provisions, some softer than others, but all pointing to the conclusion that by “assessedbenefitted lands” the legislature meant only land actually or potentially benefited by works undertaken or to be undertaken by an areaauthority, not all land, as though all benefited from mere inclusion in an area. … Then there is the phrase “assessed benefitted lands” appearing in subsection 34(2).

The object of the subsection is to enable an areaauthority to raise money by way of taxation for the purpose of carrying out its basic mandate—to construct, operate, and maintain works.This phrase, especially when read in conjunction with subsection 3(1), implies an authority may only impose a levy on lands benefitted bymeans of a work, not on all lands generally. The legislature might more easily have said all lands within the area are subject to levy, if thatis what it intended—or if it meant to act on the assumption all land included in an area is benefitted by reason alone of inclusion.

But itdid not say that; it said all “assessed benefitted lands,” a selective rather than a blanket expression, implying no such assumption, butsuggesting instead that only lands benefitted by means of works are subject to such levy. Subsections 34(3), (4) and (5) reinforce this notion. They make it clear that not all works will necessarily benefit all land located within aconservation and development area. They also make it clear that not every work that benefits land in this sense will necessarily do soequally.

They recognize that a work constructed in one locale may be of no benefit to land situated in another—and that a work may be ofless benefit to one parcel within the locale than to others.

This is to be expected, since these areas may embrace thousands of acres. [18] After the Court reviewed a number of other sections of The Conservation and Development Act relevant to the question inHaas, namely, “whether, as a matter of law, [lands] could have been assessed as ‘benefitted lands’ by reason alone of their inclusion in theArea”, the Court concluded: Read in the context of the whole of these provisions, we are of the view the expression “assessed benefitted lands in the area,” appearingin subsection 34(2), must be taken to mean only those lands assessed as benefiting from the works undertaken or assumed by the areaauthority, as distinct from those that are not benefitted by such works.

That being so, we are of the opinion subsection 34(2) does notempower an area authority to impose a blanket levy on all lands irrespective of whether they are benefitted by a work. [19] Third, the power of an area authority to levy a rate on assessed benefitted lands is statutorily circumscribed by the terms of s.34(4) itself.

Any rate levied by an area authority under s. 34(4) must be levied equally on each assessed benefitted acre. [20] Fourth, where an area authority has placed benefitted acres into groups on the basis of the benefits derived from worksconstructed, operated or maintained by the area authority, any rate levied under s. 34(4) must be levied equally on each assessed benefittedacre in an assessment group. [21] Fifth, the determination of the acres that benefit from a work must be logically based on empirical or objective evidence, suchas an engineering certificate, showing that a parcel of land is benefitted by the work or will be benefitted by works to be constructed or isotherwise properly liable to an assessment for the costs of operating, maintaining or repairing works or of conducting the affairs andbusiness of the area, as the minister must under ss. 7 to 11 of The Conservation and Development Act. [22] In short, an area authority’s powers under s. 34 are broadly constrained by law.

Fundamentally, the fact an area authority hasthe statutory power to levy benefitted lands in an area does not entitle it to do whatever it sees fit to do in the exercise of that power.

Allstatutory powers must be exercised in accordance with the scope of the authority granted to the delegate by the Legislature, consistent withthe objects and purposes of the legislation, and in accordance with the principles of administrative law (Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 56 [Baker]; Comeau’s Sea Foods Ltd. v Canada(Minister of Fisheries and Oceans), (SCC), [1997] 1 SCR 12 at para 36).

[ 23 ] With these restrictions in mind, we turn to the Committee Decision , where, after a very thorough analysis of the issues before it, the Committee summarised its conclusions in these terms (at para 7):

a) The Committee finds the [Kingsley COR] did not provide sufficient reasons in its decisions.

b) The Committee finds the 2016 assessment roll was prepared and notice of assessment given in accordance with the intent of the Act . Further, the Committee finds the errors and omissions alleged by the appellants to have been made by the [Kingsley Authority] do not invalidate the 2016 assessment and levies.

c) The Committee finds no action or inaction of the [Kingsley Authority] in 2016 or previous years invalidates the 2016 assessment and levies.

d) The Committee finds the [Kingsley COR] did not make a mistake in denying the appeals to exclude lands or acres from assessment because the lands receive no benefit under the Act . [ 24 ] Although not directly impugned by the Questions, we are in complete agreement with the Committee’s first conclusion. The Kingsley COR did not provide sufficient or, in respect of several assessment complaints, any reasons for denying a complaint.

In remedy of this, the Committee conducted de novo hearings of the assessment complaints of Kingsley area owners, which led to the three other conclusions in the Committee Decision . [ 25 ] However, we find the Committee erred in law by proceeding as it did without appreciating that the failure of the Kingsley COR to provide reasons was part of a systemic and pervasive failure by the membership of the Kingsley Authority to exercise an area authority’s statutory powers under ss. 34(2) and 34(4) in accordance with the law including the principles of natural justice.

Indeed, we might go further than the Committee and say the membership, acting as the Kingsley COR, appears to have abdicated its statutory responsibilities as a court of revision. [ 26 ] While we commend the Committee on the thoroughness of its analysis and recognise the jurisdictional limitations imposed on the Committee, we respectfully find our opinion is at variance with the Committee’s conclusion that the 2016 assessment roll for the Kingsley Authority had been prepared in accordance with the intent of The Conservation and Development Act .

By narrowly focusing on the preparation of the 2016 assessment roll , the Committee did not address the fundamental question of law put before it, namely, whether the Kingsley Authority had assessed and levied lands in accordance with the constraints on its power to do so under The Conservation and Development Act .

We find ample evidence to conclude it did not. [ 27 ] Although there are few findings of fact in this regard at any level below us, we are entitled to make such a broad statement because the owners’ evidence of abuse of the statutory authority to assess and impose a levy under ss. 34(2) and 34(4) has gone uncontradicted by the Kingsley Authority, which did not participate in this stated case appeal and did not address the evidence when appearing before the Committee ( Committee Decision at para 44).

Without delving too deeply into the details, the evidence before us strongly indicates the Kingsley Authority has, for several assessment cycles since 2012, ignored conflicts of interest arising in its membership, substantially altered assessment areas, imposed new assessments and adjusted rates of levy without having the necessary or evidentiary basis to do so, constructed works to benefit acres lying outside its jurisdiction (and, therefore, not liable to assessment and levy by the Kingsley Authority), allowed individuals unelected to its membership to put forward resolutions on assessment and levy rates, and appropriated levy revenue designated for the maintenance of one work to the maintenance of another work.

Moreover, many of these activities may have directly benefited the membership of the Kingsley Authority or persons not at arms-length to its membership. Recall, the membership is the governing board of an area authority—i.e., the individuals who make the decisions. Compounding this, the Kingsley Authority has failed since 2012 to notify the ratepayers of any of the changes it made to the assessment roll. It is an extreme understatement to say that this is troubling.

However, the way in which this matter has come before us means we lack the jurisdiction to address the concerns we have in any concrete way. [ 28 ] On the record before the Committee and this Court, we find there is no evidentiary basis for the decisions taken by the Kingsley Authority in respect of the 2016 assessment roll. The Legislature has delegated a restricted taxing power to area authorities.

The power is delimited by the conditions and requirements of The Conservation and Development Act and the law, such that it may only be exercised in accordance with those rules and the principles of law that bound the exercise of all statutory powers.

As the Kingsley Authority failed to exercise its statutory powers accordingly, it is our opinion the 2016 assessment is invalid, having been assessed contrary to law. [ 29 ] In this respect, our opinion is “at variance with the conclusion at which [the Committee] had arrived” in the Committee Decision and the Board shall direct the secretary treasurer of the Kingsley Authority to amend the 2016 assessment roll in accordance with our opinion. B. Does the Committee have the authority to consider what evidence is relevant or irrelevant? [ 30 ] Yes.

Leaving aside questions as to the standard of review, we note the Court observed in Corman Park (Rural Municipality) v 618421 Saskatchewan Ltd. , 2018 SKCA 29 at paras 56–67 , 73 MPLR (5th) 1, that the Committee has authority under s. 20(1) of The Municipal Board Act , to determine questions of fact in assessment appeals that are within its jurisdiction and are properly brought before it: Determining matters of fact or law 20

(1) The board has authority to hear and determine any question of fact or law as to matters within its jurisdiction. …

(7) In any hearing, appeal, investigation or other proceeding before the board, the board is not bound by the technical rules of legalevidence.

(8) The board may, in its discretion, accept and act on evidence by affidavit or written statement or by the report of a member of the board,other person or technical adviser appointed by it or obtained in any other manner that it may decide, provided that for an appeal thosedocuments are provided at the hearing to both appellant and respondent.

(9) The members of the board have all the powers conferred on a commission by sections 11, 15 and 25 of The Public Inquiries Act, 2013with respect to any hearing, inquiry or other proceeding before the board. See also City Centre Equities Inc. v Regina (City), 2018 SKCA 43, 75 MPLR (5th) 179. [31] However, the Committee has no jurisdiction to hear and determine matters of fact and law outside a properly constitutedassessment appeal. The Board has no inherent jurisdiction, being a statutory body imbued by the Legislature with specific statutoryjurisdiction and statutory powers.

Under s. 16(1) of The Municipal Board Act, the Board has clear statutory jurisdiction to hear anddetermine assessment or classification appeals brought pursuant to The Conservation and Development Act. The Board’s powers in thisregard have been delegated to and are exercisable by the Committee, as the Assessment Appeals Committee of the Board (The MunicipalBoard Act, ss. 12(1)(a), 12(6), and 14(1)). However, there is no free-standing right to appeal against an assessment under TheConservation and Development Act, nor against a decision of any court or tribunal.

All rights to appeal are provided by statute (R vMeltzer, (SCC), [1989] 1 SCR 1764; Kourtessis v MNR, (SCC), [1993] 2 SCR 53; Dagenais v CanadianBroadcasting Corp., (SCC), [1994] 3 SCR 835; R v S.(T.), (SCC), [1994] 3 SCR 952). [32] In that respect, s. 62(1) of The Conservation and Development Act provides ratepayers with the right to appeal assessments butthey must exercise the right within 20 days from the date of the mailing of the notice of assessment.

Where the right to appeal is not soexercised, there is simply no complaint to be heard by the court of revision (s. 62(1)) and no assessment appeal to be heard and determinedby the Committee (s. 74). Moreover, there is no continuing right to complain to a court of revision under s. 62(1) and no decision by acourt of revision to appeal to the Committee under s. 74. That is, where a ratepayer has failed to exercise the right to appeal under s. 62(1)in respect of an assessment, the Committee has no jurisdiction to hear and determine matters of fact or law related to that assessment.

Weagree with the Committee’s conclusion (at para 45): As stated previously in this decision and at the hearing, we are empowered only to deal with this matter as it relates to 2016, as that is theyear for which complaints were lodged with the [Kingsley COR] and appeals with the Committee. References to years prior to 2016 areonly made relative to the 2016 levy. C. Does the Committee have the authority to consider issues of funds andaccounts under s. 34(7) of the Act? [33] No.

The Committee, in its capacity as the Assessment Appeals Committee of the Board, does not have jurisdiction to superviseand inquire into compliance by an area authority with the financial accounting requirements of s. 34(7) of The Conservation andDevelopment Act. While the Board has general supervisory jurisdiction in such matters under s. 19 of The Municipal Board Act, theCommittee does not. [34] The Board’s supervisory jurisdiction, and its powers in this respect, have been delegated under s. 12(

c) of The Municipal BoardAct to the Local Government Committee of the Board. Moreover, the Local Government Committee’s powers of inquiry into the affairs ofa local authority under ss. 15 and 19 of The Municipal Board Act do not apply to the affairs of an area authority established under TheConservation and Development Act.

The Board’s supervisory jurisdiction over financial affairs of conservation and development areaauthorities is specifically excluded under s. 19(2) of The Municipal Board Act, which provides that the Board “shall conduct an inquiryinto the affairs, financial or otherwise, of any local authority, except a conservation and development area” (emphasis added). [35] Ratepayer concerns regarding an area authority’s compliance with s. 34(7) of The Conservation and Development Act may beaddressed through the minister responsible for Saskatchewan Water Security Agency, as the minister responsible for the administration ofthat Act, by complaint to the Local Government Committee of the Board, or by an originating application for judicial review under Rule 3-56(1) of The Queen’s Bench Rules.

D. Does anything in The Conservation and Development Act suggest theauthority granted in ss. 34(4) and (5) applies to the Kingsley Authority? [36] We have answered this Question, as it relates to s. 34(4), in our opinion under Question 1 and, as it relates to s. 34(5), in ouropinion under Question 5. E. Is the intent of The Conservation and Development Act that the authority ins. 34(5) is given to the Lieutenant Governor in Council? [37] Yes. The authority and powers under s. 34(5) of The Conservation and Development Act are conferred on the LieutenantGovernor in Council.

However, the Lieutenant Governor, by and with the advice and consent of the Executive Council of the Province ofSaskatchewan, has assigned responsibility for The Conservation and Development Act to the minister responsible for Saskatchewan WaterSecurity Agency. [38] Subsection 34(5) provides:

(5) The Lieutenant Governor in Council may, if he considers that the lands to be taxed are not or will not be benefitted equally, prescribe the basis on which the lands shall be taxed so that each parcel of land will be taxed equitably in relation to the assessment of each other parcel having regard to the varying degrees to which the respective parcels of land are benefitted or to be benefitted, and thereupon the land shall be taxed on the basis so prescribed. [ 39 ] Section 27(1) of The

Interpretation Act, 1995 , SS 1995, c I-11.2 , provides most of the relevant

definitions that aid in the

interpretation of s. 34(5) of The Conservation and Development Act : “Executive Council” means the Executive Council appointed pursuant to The Executive Government Administration Act ; (« conseil exécutif ») … “Lieutenant Governor” means the Lieutenant Governor of Saskatchewan and includes the Administrator of Saskatchewan; (« lieutenant- gouverneur ») “Lieutenant Governor in Council” means the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent of, or in conjunction with, the Executive Council; (« lieutenant-gouverneur en conseil ») [ 40 ] Sections 2 to 5 of The Executive Government Administration Act , SS 2014, c E-13.1 , provide additional

interpretational assistance:

Interpretation 2 In this Act: (a) “executive council” means the Executive Council of the Province of Saskatchewan continued pursuant to

section 3; (b) “executive government” means the executive government of Saskatchewan; … (e) “minister” means a member of the executive council and includes the President of the Executive Council; (f) “ministry” means a ministry, department, secretariat, office or other similar agency of the executive government; … Executive council continued 3 The Executive Council of the Province of Saskatchewan is continued and consists of its present members and any other persons that the Lieutenant Governor may appoint. Ministerial appointments 4

(1) The Lieutenant Governor may appoint, under the Great Seal, from among the members of the executive council, the following officers to hold office during pleasure: (

a) a President of the Executive Council; (

b) ministers to preside over the ministries of the executive government and to exercise any powers and perform any duties or functions that the Lieutenant Governor in Council may assign or transfer pursuant to

section 5 ; (

c) ministers, in addition to those appointed pursuant to clause (b), to exercise any powers and perform any duties or functions that the Lieutenant Governor in Council may assign or transfer pursuant to

section 5 .

(2) The Lieutenant Governor in Council may determine the titles by which the ministers appointed pursuant to subsection (1) are to be known. Transfer of powers, etc. 5

(1) The Lieutenant Governor in Council may, on the recommendation of the President of the Executive Council: (

a) assign to any minister any power, duty or function conferred or imposed by law on a minister; (

b) transfer any power, duty or function assigned to a minister pursuant to clause (

a) to any other minister; or (

c) transfer any power, duty or function that is conferred or imposed by law: (

i) on any minister, to any other minister; or (ii) on any ministry, to any minister or other ministry.

(2) Without limiting the generality of subsection (1), the Lieutenant Governor in Council may assign to any minister or transfer from one minister to another the administration of:

(

a) any Act or portion of

an Act; or (

b) any part of the public service.

(3) An assignment or transfer pursuant to subsection (1) or (2) may be made either absolutely or limited for any period and with respect to any purpose or area of Saskatchewan that may be specified by the Lieutenant Governor in Council.

(4) If the administration of

an Act or portion of

an Act or a part of the public service is transferred to a minister pursuant to subsection (2), the Lieutenant Governor in Council may also transfer to the minister for administration the whole or any part of the moneys appropriated with respect to that Act or part of the public service. [ 41 ] Lastly, under

Schedule S to Order in Council 318/2018 of the Province of Saskatchewan, the Lieutenant Governor in Council has assigned responsibility for the administration of The Conservation and Development Act to the minister responsible for The Saskatchewan Water Security Agency, but this would not include, in our opinion, such powers as the power to pass regulations under s. 34(5) , which clearly remain with the Lieutenant Governor in Council. [ 42 ] Therefore, the Legislature has vested the Lieutenant Governor in Council with the authority and powers set forth under s. 34(5) . V.

CONCLUSION [ 43 ] In the language of s. 78 of The Conservation and Development Act , we find our opinion under Question 1 is “at variance with the conclusion at which [the Committee] had arrived” in the Committee Decision . We direct the Registrar of the Court of Appeal for Saskatchewan to forward our opinion to the Board. In accordance with s. 78, the Board shall direct the secretary treasurer of the Kingsley Authority to amend its 2016 assessment roll in accordance with our opinion. [ 44 ] We make no order as to costs. “Jackson J.A. Jackson J.A. “Caldwell J.A.” Caldwell J.A. “Schwann J.A.” Schwann J.A.