Decision Date: February 27, 2004

Panel: Cindy Derkaz

Keywords: Water Act – s. 12, 35, 40; water licence; irrigation; water bailiff; bias

John W. Zahradnik appealed the Assistant Regional Water Manager’s (the “Manager”) decision to refuse his application for a water licence authorizing the use of 21 acre feet of water for irrigation purposes on Twaal Creek.  Mr. Zahradnik sought an order to reverse the decision and another order to have a water bailiff appointed to manage Twaal Creek.

The issues in this appeal were:  whether the Manager acted unfairly in reaching the decision to refuse Mr. Zahradnik’s application for a water licence; whether there was sufficient flow in Twaal Creek to support Mr. Zahradnik’s application for a water licence; and, whether the appointment of a water bailiff for Twaal Creek was appropriate in the circumstances.

The Board held that the evidence did not support the conclusion that the Manager’s refusal of the application was in any way biased, prejudicial or unfair.  The Board found that Mr. Zahradnik failed to establish that the Manager acted unfairly in reaching the decision to refuse the application.

The Board held that Mr. Zahradnik failed to prove, on a balance of probabilities, that there was a sufficient flow of water in Twaal Creek to support the issuance of a licence.  The Board found that the cancellation of a previous licence could not be held as proof of sufficient water flow in Twaal Creek.  In addition, the Board found that the Manager was not required to re-licence amounts that had been previously surrendered or cancelled.  Furthermore, the Board held that the engineer’s report relied on by the Manager and the visual estimates of water flow made by an experienced science technologist were compelling in identifying that there was insufficient water flow in Twaal Creek to support the issuance of a licence.

The Board held that it did not have the jurisdiction in this appeal to appoint a water bailiff for Twaal Creek, because this was an appeal of a refusal of a licence under section 12 of the Water Act.  The Board found that the Manager, and thus the Board, in this appeal, did not have the authority under section 12 to appoint a water bailiff.  In addition, the Board held that the comptroller was the only entity with the authority to appoint a water bailiff under section 35(1) of the Water Act.  The Board found that this authority did not extend to the Manager, nor to the Board in the present appeal.

The appeal was dismissed.