Decision Date: February 28, 2000

Panel: Katherine Hough, Ken Maddox, Carol Quin

Keywords: Water Act – s. 3, 23; Conditional Water Licence; suspension; cancellation; application of the Water Act to ground water; failure to make beneficial use of licence; easement

Two appeals were filed against an order by the Deputy Comptroller of Water Rights upholding the suspension of a Conditional Water Licence (“CWL”) on Marlow Spring, and finding that certain water works said to be constructed pursuant to that CWL were not authorized under the licence. The appeals were filed by the licensee, the Minister of Indian Affairs and Northern Development, and William Berscheid, the owner of the property on which the works are located. Mr. Berscheid sought to have the CWL cancelled on the grounds that the existing works neither comply with the licence nor the Act. The Minister sought to have the order reversed on the grounds that there were procedural errors in the decision-making process, and that the licence and works are valid.

On the procedural issues, the Panel noted that, as the appeal was conducted as a hearing de novo and the parties were given the opportunity to make full submissions, any procedural errors made by the Deputy Comptroller were cured by the hearing process.

On the other issues, the Panel found that the existing works did not comply with the CWL. The type of structures were not authorized, and they were not located on Marlow Spring. The Panel also found that the existing works did not comply with the Act. The existing works were drawing ground water, which cannot be licensed under the Act. The Panel found that neither underground streams nor ground water that is part of a “flow regime”, may be licensed under the Act. The Panel also concluded that the licensee had, for thirty successive years, failed to make beneficial use of the water licensed under the CWL, without providing a reasonable explanation for this. The Panel noted that each of these findings are, individually, a reason to cancel the CWL under section 23(2) of the Act. As the Panel also found that the Minister had no way of accessing the property to restore beneficial use of the water licensed under the CWL, since it had not previously pursued expropriation proceedings, and showed no real intention of doing so, the Panel found it appropriate to cancel the CWL. The appeal by Mr. Berscheid was allowed. The appeal by the Minister was dismissed.