Decision Date: April 2, 2002

Panel: Alan Andison

Keywords: Water Act – s. 1, 23, 40(5); conditional water licence; cancellation; procedural fairness

White Bear Water Ltd. (“White Bear”) appealed the order of the Deputy Comptroller of Water Rights (the “Deputy Comptroller”) cancelling a conditional water licence that authorized White Bear to build certain water works and export bulk water. White Bear requested that the Board reverse the cancellation order, and order an extension of time for constructing the works and making beneficial use of the water authorized under the licence.

The Board first considered whether White Bear was given a fair opportunity to be heard before the order was issued. The Board found that the opportunity to make written submissions met the requirement of procedural fairness. Moreover, the Board found that the oral hearing before it cured any procedural defects that may have occurred in the proceedings below.

The Board next considered whether the Deputy Comptroller failed to take into account relevant considerations. The Board accepted his testimony that he reviewed all of the information in the file pertaining to the licence, and considered all of the submissions provided by White Bear, before issuing the order. The Board found that there was no evidence that the Deputy Comptroller failed to consider White Bear’s submissions, the interests and efforts of White Bear and its principals, or the interests of the Hartley Indian Band.

The Board also found that cancelling the licence was an appropriate exercise of the Deputy Controller’s broad discretionary powers. The Board found that White Bear had never constructed the works authorized under the licence, and had never made beneficial use of the water, despite being granted extensions of the deadline by which it was to have done so. Further, the Board found that White Bear’s claims that its efforts to obtain purchasers for its water were frustrated by a perception that the provincial government had banned all water exports, was contrary to the Water Protection Act, which expressly exempted White Bear’s licence from the export ban. Additionally, the Board was not prepared to order that the outstanding licence rental fees and penalties be forgiven. The Board found that it was unclear whether it had the jurisdiction to make such an order and, even if it did, the facts did not support such a finding. Accordingly, the appeal was dismissed.