Decision Date: November 10, 2003

Panel: Alan Andison

Keywords: Water Act – ss. 15(1), 27(6), 29, 32, 33, 35, 36, 39(1)(g); Water Regulation – s. 5, 9, 28, 29; Land Act – ss. 40, 50; Land Title Act – s. 23; Crown land grant; easement; expropriation; water bailiff

The Appellants appealed three orders issued by the Comptroller of Water Rights; two of the orders were for joint use of a dam and a reservoir on each of two lakes, and the other was for the appointment of Edward Salle as the water bailiff for the purpose of regulating the storage and use of water from the reservoirs of those lakes.  The Appellants also appealed an order of the Engineer issuing directions to Edward Salle in his capacity as water bailiff.

The issues in this case were:  whether the Comptroller’s order for joint use allows the unlawful use by other licensees of the Appellants’ property; whether the other licensees have failed to diligently prosecute the expropriation proceedings under the Act; whether the Comptroller’s orders for joint use of the dams and reservoirs should be reversed because they allow the works to be operated in a manner which damages the Appellants’ property; whether the order appointing Edward Salle as water bailiff was reasonable in the circumstances; and, whether the Engineer’s directions to the water bailiff are reasonable in the circumstances.

The Board found that the Comptroller’s orders do not permit the unlawful use of the Appellants’ property by other licencees; there are Crown grants for the property that preserve the rights of licensees to access and use the land for purposes contemplated by their licences.  The Board also found that the Third Parties have diligently prosecuted the expropriation proceedings as required under the Act.  With regard to the water bailiff, the Board held that the Engineer is unable to regulate the diversion and use of water in person in this case, and that the order appointing Edward Salle as the water bailiff is reasonable in the circumstances.  Furthermore, the Board held that the Engineer’s directions to Edward Salle were reasonable in the circumstances.

Accordingly, the orders and directions were upheld.

The appeals were dismissed.