Decision Date: September 17, 2012

Panel: Gary Robinson

Keywords: Water Act – definition of “works”; s. 18(1)(d); licence amendment; fence; irrigation; Crown range land

David Clarke appealed a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Environment (the “Ministry”), denying an application to amend Mr. Clarke’s water licence. Mr. Clarke sought an amendment to authorize the construction of additional “works”; namely, a fence. He wanted to build a fence on Crown range land, adjacent to his land, to keep neighboring cattle out of his land.

Mr. Clarke’s licence authorizes the diversion of water from a creek for irrigation purposes. A ditch was built approximately 40 years ago on Crown range land, adjacent to Mr. Clarke’s property line, to deliver water toMr. Clarke’s land, as part of the “works” authorized under the water licence. However, the ditch had not been used to convey water for irrigation in recent years.

Mr. Clarke wanted to build the fence on the Crown range land adjacent to his land, because the Crown land was easier to build on. He initially sought approval to either purchase or gain tenure over the Crown land where he wanted to build the fence, but government staff suggested that he instead submit an application for a “change in works” under the Water Act, which he did. The area of Crown range land that he proposed to enclose, between the fence and his own property, was approximately 19 hectares.

The amendment application was referred to potentially affected stakeholders, including the existing Crown range tenure holders. One of the tenure holders objected, as did the Ministry of Forests and Range, which was responsible for managing Crown range land. Subsequently, the Water Manager refused the application, partly due to the objections.

Mr. Clarke appealed to the Board on several grounds.

The Board considered the definition of “works” in the Water Act, and noted that works may be capable of, or used for, “conserving” water, among other things. Thus, the question was whether the proposed fence was capable of, or would be used for, conserving water. The Board found that the ditch had not been used in recent years to convey water for irrigation, and there was no evidence that the ditch had been damaged by grazing cattle, so there was no evidence that the fence was needed to prevent water loss. The Board also found that the fence would result in the existing range tenure holder losing the use of some Crown range land, although there was no information as to what impact, if any, that would have on the tenure holder.

There was evidence that a fence could be safely built along Mr. Clarke’s properly line, with a couple of exceptions. However, based on all of the evidence, the Board found that a fence along his property line was not needed to protect the ditch from damage by cattle, and in any case, the ditch was no longer being used for irrigation. The Board held that the real motivation for wanting the fence was to keep neighboring cattle out of Mr. Clarke’s property, and not to “conserve” water. The Board concluded, therefore, that the fence could not be considered “other works” under section 18(1)(d) of the Water Act, and that a water licence amendment was not an appropriate vehicle for obtaining approval for the fence.

Accordingly, the appeal was dismissed.