Decision Date: August 24, 2005

Panel: Alan Andison

Keywords: Water Act – ss. 20 (1) and (2), 27(1), (2), (5), and (6); water licence; apportionment; excessive allotment

Edgar and Louise McCarvill appealed the decision of the Regional Water Manager (the “Regional Manager”) to issue conditional water licence 120473 (the “Current Licence”) to Rolland and Betty Durocher in substitution for conditional water Licence 41567 (the “Former Licence”).

The Board found that listing Mr. Durocher, in a newspaper notice published by Land and Water British Columbia Inc. (“LWBC”), as the sole user of the right provided by the Former Licence did not constitute an error.  In addition, the newspaper notice was not misleading to the public, as it indicates LWBC’s intention to amend the Former Licence for the exclusive use of Mr. Durocher.  The Board noted that the possibility of unauthorized use of water by other parties was a matter of enforcement for LWBC, and therefore outside of the Board’s jurisdiction.

The Board held that the Appellants provided no evidence that any rights that they may hold as water licensees will be injuriously affected by the issuance of the Current Licence, or that they ever used water under the Former Licence.  Further, there was evidence that the Durochers were the only ones who had, until late 2004, expressed any interest to water officials in using the water.

With respect to whether the Appellants are entitled to share in the rights to the water under the Current Licence because part of the water works crosses their property, the Board found that the issuance of the Current Licence cannot be withheld, nor can rights to the water be apportioned, solely based upon that reasoning.  However, the Board acknowledged that the Appellants are entitled to some sort of compensation.  Additionally, the Board did not accept the Appellants’ claim that any future increase in the volume of water allowed by the Current Licence should be allocated to the Appellants.  The Board noted that such matter was outside of its jurisdiction and the scope of the present appeal.

The Board also found that there was no evidence to support the Appellants’ assertion that the amount of water authorized under the Current Licence is excessive or wasteful, nor did it find evidence of improper motives for the Regional Manager’s representative to recommend issuing the Current Licence.

The appeal was dismissed.