Decision Date: October 25, 2002

Panel: Joan M. Young

Keywords: Water Act – ss. 1 – definition of “conditional licence”, 2, 5, 6, 10, 11, 12, 13, 15, 21; Water Regulation – ss. 2, 3; precedence; posting; notice

Terrence Martinich appealed the Assistant Regional Water Manager’s decision to issue a licence on Grimmer Bay Creek to the Pender Island Golf and Country Club with a precedent date of October 10, 1989.

Mr. Martinich requested an order revoking the licence, or, alternatively, setting aside its precedent date. Mr. Martinich argued that he has been a licencee on the creek since 1994, and it was unfair and arbitrary to give the Club’s licence an earlier date of precedence than his licence. He also argued that the Club had serious deficiencies in its posting and service of the licence application to warrant rescinding the licence. Further, he argued that the licence permits the Club to build a dam and reservoir on the creek which would have a negative impact on the amount and duration of the creek’s downstream flow across his property. Mr. Martinich argued that there were concerns that the dam and spillway were inadequately constructed and maintained, and that the Club had not been diligent in fixing these deficiencies.

The Board found that it was reasonable and fair for the Assistant Manager to follow Water Management policy and set the date of precedence as corresponding to the date the Club applied for the licence. The Board found that to set the date of precedence as the date of issuance would mean that a complicated application, which takes longer to process, would get a later precedence than a shorter application that may have been filed after it. The Board also found that Mr. Martinich had not been prejudiced by any deficiency in the posting of the licence application. Finally, the Board found that Mr. Martinich’s water rights would not be injuriously affected by the Club’s licence.

However, the Board found that there were many deficiencies with the dam and spillway. The Board ordered that the licence be amended to include a condition requiring the Club to implement a work plan to remedy the problems, to the satisfaction of a professional engineer, by November 1, 2003.

The appeal was allowed, in part