• Gordon and Cynthia James v. Engineer under the Water Act

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    Decision Date: April 13, 1999

    Panel: Jane Luke

    Keywords: Water Act – s. 41(1)(s); “natural boundary”; “changes in and about a stream”

    Gordon and Cynthia James appealed an order of an Engineer under the Water Act that they remove a tarp and sand fill from the foreshore of their leasehold property on Paul Lake. They argued that the order should be overturned on the grounds that the current high water mark of Paul Lake was not the natural boundary of the lake, and the tarp and sand they placed on their property was well above the natural boundary of the lake.

    The Panel referred to the Water Act and found that the natural boundary of Paul Lake was the current high water mark of the lake and not the level that existed prior to the construction of a dam forty years earlier. The Panel did not agree with the Appellants that the impact of their tarp and sand beach was minimal, and found that the fact that the natural environment of the lake has not always been protected from human impact was no reason to allow habitat destruction in this case. While the area of the tarp was only 40 square metres, the Panel noted that the natural vegetation and invertebrate life under the tarp had been completely destroyed. The Panel found that the construction of a sand beach at a park on the lake was no reason to permit similar changes at other sites on the lake. The Panel concluded that the Appellants’ sand covered plastic tarp constituted unauthorized “changes in and about a stream” under the Water Act, and that the Engineer’s order was reasonable and appropriate. The appeal was dismissed.