Decision Date: December 29, 2005

Panel: Don Cummings

Keywords: Water Act – ss. 2(1), 9(1)(a), 88(1)(e); high water mark; change in and about a stream; unauthorized works

Kenneth Basso and Suzan Basso appealed an order of the Regional Manager directing them to remove the fill they had deposited on the foreshore of Red Lake fronting their property.

The Appellants raised two grounds for the appeal.  One was that there had been a number of placements similar to the fill on the property without previous complaints.  The Board found the question of other contraventions beyond the purview of this appeal, as its authority is limited to that set out under section 92(8) of the Water Act – namely to consider the Order under appeal.

Their second ground for appeal was that the fill was not placed below the high water mark, as the lake level had artificially been raised due to a dam that was constructed by Ducks Unlimited several years prior to the placement of the fill.  The Board had to decide where the natural boundary between the lake and the property was, whether the placement of fill, if within this lake’s boundary, constituted “a change in and about a stream”, and whether the fill placement constituted “works” within the meaning of the Water Act.

The Board found that lakes and rivers fluctuate as a result of human and natural factors.  The Board concluded that natural boundaries are a question of fact to be determined in each case, and that natural boundaries are ambulatory in nature and not fixed by surveys.  Thus, the Board found that the edge of an area of bullrushes between the Appellants’ property and Red Lake defined the “natural boundary” of the lake property, as defined in the Water Act.

The Board further found that some of the fill material was placed on and below this boundary, constituting an unauthorized change in and about a stream, which is an offence under the Water Act.

Finally, the Board found the discontinuity created by the gravel placement is an obstruction in the stream, and thus concluded that the fill constituted “works” as defined under the Water Act.

Therefore, the Board found that it was reasonable for the Regional Manager to order removal of the fill and restoration of the foreshore.  The Regional Manager’s order was confirmed.

Accordingly, the appeal was dismissed.