Decision Date: August 29, 2003

Panel: Alan Andison

Keywords: Water Act – ss. 1 – definitions of “conservation purpose,” “domestic purpose,” 23; Local Government Act – s. 748; beneficial use of water; notice; order of cancellation; fisheries

David de Montreuil appealed an Order of Cancellation issued by the Assistant Regional Manager with regard to a licence for the diversion, storage, and use of water from a creek.  The licence was appurtenant to property owned by Mr. de Montreuil, but the initial decision to cancel the licence was made in October 1995, prior to his purchase of the property.  The previous property owners were notified of the proposed cancellation, but did not advise Mr. de Montreuil.  After purchasing the property in November 1995, he continued to receive invoices for annual licence fees, which he paid.  The Order of Cancellation was then issued in 2003.  Mr. de Montreuil requested that the Board reverse the Order and reinstate the licence.

The issues in this case were whether the water was being used beneficially at the time of the 1995 decision to cancel the licence, whether the licence should be cancelled for Mr. de Montreuil’s failure to make beneficial use of the water over 3 successive years, whether the Local Government Act affects the status of the licence, whether proper notice of cancellation was given to Mr. de Montreuil, and whether the licence should be cancelled because of fisheries issues.

The Board found that there was insufficient evidence to support a finding that the water had not been used beneficially for 3 successive years prior to the 1995 decision to cancel the licence.  The Board also determined that Mr. de Montreuil was making beneficial use of the water for a domestic purpose, as permitted by the licence, and, therefore, that the licence should not be cancelled due to lack of beneficial use.  The Board found that, although Mr. de Montreuil’s rights with regard to the creek were subject to the powers of the Improvement District under s. 748 of the Local Government Act to exercise rights under a water licence, the Improvement District had not exercised those rights, and Mr. de Montreuil could continue to make beneficial use of the water under the licence until the Improvement District chose to exercise it statutory power.  Therefore, the Board found that s. 748 of the Local Government Act did not provide a basis for cancelling the licence.  The Board found that Mr. de Montreuil should have been given notice of the cancellation before the Order was issued, but held that the proceedings before the Board corrected any irregularities in notification.  Finally, the Board found that, although there was evidence to show that Mr. de Montreuil was using the creek for fish conservation purposes not authorized by his licence, this does not negate Mr. de Montreuil’s beneficial use of the water for domestic purposes, and therefore is not sufficient grounds to cancel a licence.  

Accordingly, the Order was reversed, and the licence was reinstated.

The appeal was allowed.