Decision Date: May 8, 2001

Panel: Carol Quin

Keywords: Water Act — ss. 2, 5, 44; water license; unrecorded water; reservation of water; order in council.

Fritz Zens appealed the decision of the Assistant Regional Water Manager (“ARWM”) refusing to issue him a water license. The license sought was to authorize the diversion and use of water from McCoy Lake to irrigate the Appellant’s fields.

Mr. Zens appealed on several grounds including that the water level in the Lake was at record levels; the likelihood of the water level returning to its former level is remote; there had been a decrease in water use by existing water license holders; and that he should be compensated for the loss of arable land due to the high water level in McCoy Lake. He sought an order reversing the ARWM’s decision and granting him a water license.

The ARWM argued that there was insufficient water to support further licensed water demands and to maintain fish resources in the Lake, that Mr. Zens had not received permission to cross First Nations lands to access the lake, and that the water levels in McCoy Lake could return to former levels. He further submitted no further water licenses could be issued because of existing licenses on McCoy Lake and a 1922 Order in Council reserving all unrecorded water in the area that includes the Lake.

The Board found that they were unable to make a finding on the issue of whether the ARWM was prevented from issuing a license to the Appellant because of other licenses on the Lake and the Order in Council 842/22.

Assuming it may be possible to issue a license, the Board found that there were sufficient grounds for the ARWM to refuse the license. Any water that may be available due to decreased water use by current licenses can not be re-licensed until those licenses are abandoned or cancelled. Further, although the Lake was higher than historic levels, this increase was primarily due to blockages by beaver dams and natural deposits which, if removed, could return the Lake to its former lower level. The Board also agreed that there were concerns regarding the possible impact to fish and the absence of an easement over First Nations’ land to the Lake, and insufficient consultation with the First Nation.

The Board upheld the ARWM’s decision. The appeal was dismissed.