Decision Date: March 25, 2011
Panel: Tony Fogarassy
Keywords: Water Act – ss. 12, 18, 19, 20; water storage licence; irrigation licence; transfer of appurtenancy; apportionment of water rights; substitution of water licence; abandonment of water rights; notice
The Campbell Creek Water Users’ Community Association (the “Association”) appealed the decisions of the Assistant Regional Water Manager, Ministry of Environment (the “Ministry”) to issue two conditional water licences authorizing the use of water from Campbell Creek, near Kamloops. Together, the two licences authorized the use of 35 acre feet of water per year for irrigation purposes. The licences were issued in partial substitution for a previous licence that authorized the use of 50 acre feet of water per year from Campbell Creek for irrigation purposes. When the two new licences were issued, the remaining 15 acre feet of water authorized under the previous licence was declared to be abandoned. Also, one of the new licences was appurtenant to the property that was appurtenant to the previous licence, whereas the other licence involved a transfer of appurtenancy to a different property. Both licences involved the use of water stored under a storage licence held by the Association, which owns and manages dams on Campbell Creek to support numerous irrigation licences in the area.
The Association appealed the issuance of the two licences on the basis that it was entitled to receive notice of the applications for the licences, and it received no such notice.
In contrast, the Assistant Regional Water Manager argued that he was not obligated under the Water Act to provide notice of the applications to the Association, because the Association’s rights would not be injuriously affected by his decisions.
The Board found that sections 18, 19 and 20 of the Water Act apply in this case, and all of those sections provide the Assistant Regional Water Manager with the discretion to dispense with providing notice of the licensing decisions if no rights would be injuriously affected by the decisions being contemplated. The Board found that no rights of the Association would be injuriously affected by the issuance of the licences in partial substitution for the previous licence, or the transfer of appurtenancy and the abandonment of the remaining rights under the previous licence, because the result was a net reduction in water use of 15 acre feet per year. In addition, the Board found that there was no evidence that the rights of the Association, any other licensee or person would be injuriously affected by the licensing decisions. Moreover, the Board held that the decisions actually benefit the Association, because an additional 15 acre feet of water became available for storage. Finally, the Board noted that the Ministry is not obligated under the Water Act to seek the Association’s approval before making decisions of this nature.
Accordingly, the appeals were dismissed.