Decision Date: May 15, 2003

Panel: Cindy Derkaz

Keywords: Land Act – ss. 1 – definition of “natural boundary”, 55, 56(1); Water Act – ss. 1 – definition of “natural boundary”, 23(2), 26; high water mark; order of cancellation

Bernard Wohlleben appealed an Order of Cancellation (the “Order”) issued by the Assistant Regional Water Manager (the “Assistant Manager”) that cancelled a Conditional Water Licence (the “Licence”) for the diversion, storage and use of water from Martin Brook which flows into Degnen Bay.  This Licence was appurtenant to property owned by Mr. Wohlleben.  The Order also required Mr. Wohlleben to remove a dam constructed on the foreshore at the mouth of Martin Brook.  Mr. Wohlleben requested that the Board reverse the Order and reinstate the Licence.

The three issues in the appeal were whether the dam was illegally flooding Mr. Lenko’s property and/or Crown land without authorization, whether the Assistant Manager had the jurisdiction to order the removal of the dam, and whether the Assistant Manager had acted unfairly and failed to protect groundwater quality.

Mr. Wohlleben argued the dam did not cause flooding on private land because the flooded area is tidal and is therefore Crown land.  He further argued that he possessed a permit under the Water Act that authorized the flooding.

The Board found that at law the area below the “natural boundary” of Degnen Bay is Crown land.  The Board referred to the British Columbia Supreme Court decision of Westwood Plateau Partnership v. WSP Construction Ltd., (1997) to find that water boundaries are not established by survey.  The Board held that the visible high water mark is determinative of the boundary between the Crown foreshore and Mr. Lenko’s property.

The Board found that some parts of Mr. Lenko’s property were being regularly subjected to tidal activity, and were thus below the natural boundary.  However, the Board also found that there was insufficient evidence to determine the precise location of the natural boundary in this case.  Ultimately, the Board found that the Assistant Manager had made an error of law in determining the natural boundary, and had failed to address whether the permit that authorized flooding should have been extended to cover the entire flooded foreshore.

Taking into account the dam’s function in supplying fresh water to Mr. Wohlleben, as well as the Assistant Manager’s error of law, the Board decided to reverse the Order.  However, the Board noted that the Assistant Manager has discretion to reconsider this matter to determine whether the dam causes flooding above the natural boundary (and on private property), and whether the permit should be amended to extend to all Crown land flooded by the dam.

For the latter two issues, the Board found that Mr. Wohlleben provided no legal argument for the matter of the Assistant’s Manager’s jurisdiction and that there was no evidence his decision was based on anything but an honest mistake.  Concerning the groundwater quality, the Board found the matter was beyond its’ jurisdiction because the claim involved an alleged incident beyond the parameters of the appeal.

The appeal was allowed.