Decision Date: September 5, 2003

Panel: Cindy Derkaz

Keywords:  Water Act – ss. 1- definition of  “irrigation purpose,”5, 7, 12; Fish Protection Act – ss. 3(2), 6(2); fish habitat; aboriginal interest assessment report; agreement

Tom Redl appealed the decision of the Assistant Regional Water Manager (the “Regional Manager”) to refuse an application for a water licence for irrigation purposes.

The issues in this case were whether the provincial government entered into an agreement to provide the Appellant with the irrigation licence, whether the Regional Manager erred in considering the minimum flow required for fish in the creek, and whether there is sufficient flow from April to June to support the licence in question, and whether the licence should be issued.

The Board found that the evidence did not support a finding that there was a binding agreement between the provincial government and the Appellant to provide the Appellant with a water licence.  The Board noted that the communication from the Ministry of Water, Land and Air Protection made it clear that the Regional Manager has the unfettered authority to issue a licence.  The Board also held that it was appropriate for the Regional Manager to consider regional policy regarding minimum fish flows when he evaluated the Appellant’s water licence application.  The Board found that there would be, in most years, sufficient flow to support a water licence without adversely affecting prior rights or minimum fish flows.  However, the Board found that there was no aboriginal interest assessment report completed for this licence application and it would be necessary to consider the impact of the licence on traditional aboriginal activities in the area.  The Board held that the matter should be referred back to the Regional Manager, with directions to issue a licence to the Appellant as long as it would not unreasonably infringe on aboriginal interests.

The appeal was allowed, in part.