Decision Date: June 29, 2007

Panel: Robert Wickett, Bruce Devitt, David Thomas

Keywords: Water Act – s. 1, s. 13(b); water license; land improvement purpose; “no evidence” motion.

In 2006, the Regional Water Manager, Ministry of Environment, granted a conditional water license (the “License”) to the applicant, Teresa Erb.  The License permitted the construction of a dugout and dam on Ms. Erb’s property and the diversion of water from Oasis Creek to be stored in the dugout.  Oasis Creek drains into Shawnigan Creek, which drains into Shawnigan Lake.  The dugout was to become a water ski pond, and Ms. Erb sought to develop the land around the proposed dugout for the construction of homes.

The Appellants are all owners of land adjacent to Shawnigan Lake who are concerned that the construction of the water ski pond will result in the degradation of their community.

The Board considered two issues.  The first one pertained to the “no evidence” motion made by Ms. Erb, requesting that the appeals of Ms. Desmond and the estate of Mr. Bradbury be dismissed for lack of evidence.  The second issue was whether the Regional Water Manager had jurisdiction to issue the License on the basis that it was for a “land improvement purpose” within the meaning of section 1 of the Water Act (the “Act”).

Turning to the first issue, the Board noted that Appellants bear the burden of evidence in an appeal.  Appellants must lead evidence that either the decision was flawed in law or fact, or that the process leading to the decision was flawed.

Ms. Desmond argued that the proposed plan for the development had changed from the date of the original application and, therefore, that a new license application should be made.  She also submitted that the License lacked conditions requiring monitoring of quality and quantity of water in the water ski pond.

The Board found that there was nothing in the evidence to suggest that the License was materially different from the original application.  Similarly, the Board found no evidence to support her claim that the dugout could become contaminated and that contaminated water could discharge into Shawnigan Lake.  Therefore, there was nothing in her evidence or submissions to establish that there was a legal error, that the decision was wrong in fact, or that there was a flaw in the process leading to the decision.  As a result, her appeal was dismissed.

Mr. Damant, on behalf of the estate of Mr. Bradbury, expressed concerns about the diversion of Shawnigan Creek for use in the water ski pond, and with the lack of provisions in the License for preventing harm to Shawnigan Lake residents.

The Board found that the complaints contemplated future events which could not be the foundation of an appeal.  Moreover, no evidence was adduced to support the assertion that there was an appreciable risk to the downstream owners that the Regional Water Manager should have considered.  Therefore, the appeal was dismissed.

The Board then turned to the second issue, which was raised in the remaining appeal, that of Mr. Avren.  Mr. Avren noted that the License was purported to be granted for a “land improvement purpose”, and he argued that a water ski pond is not a “land improvement purpose” as defined in section 1 of the Act.  In reaching this conclusion, Mr. Avren deemed the term “land” to refer only to the land immediately impacted by the impoundment of water, and not to the surrounding land.  Therefore, the License, which was under section 13 of the Act to be granted for one of the purposes defined in section 1, was not authorized by the Act.

The Board found that there was nothing in the Act to give effect to Mr. Avren’s restrictive reading of the word “land” in the phrase “land improvement purpose.”  The legislature intended to give the Regional Water Manager sufficient latitude to grant a license in circumstances where the purpose of the license is for the improvement of land, whether that land is the land to be flooded by the impoundment, or whether it is other land owned by the applicant.  Turning to the final question of whether the water ski pond constitutes an “improvement” of the land, the Board found that, insofar as the water ski pond would increase the utility of Ms. Erb’s land, it is an improvement and serves as a valid purpose for the granting of a license.  Therefore, the Regional Waste Manager’s decision to issue the License was confirmed and Mr. Avren’s appeal was dismissed.