Decision Date: August 19, 2009

Panel: Alan Andison

Keywords:  Water Act – ss. 18(1)(c), 23(2); water licence; beneficial use; precedence date

Earl Tourangeau appealed a decision issued on March 26, 2009, by the Assistant Regional Water Manager (the “Assistant Manager”), Cariboo Region, Ministry of Environment (the “Ministry”), denying Mr. Tourangeau’s request to cancel a water licence held by Dan Moorhead on Otto’s Spring, which is located on Mr. Tourangeau’s property near Quesnel.

Mr. Tourangeau and Mr. Moorhead both hold water licences on Otto’s Spring which allow each of them to use 500 gallons of water per day for domestic purposes.  Mr. Moorhead’s licence was issued before Mr. Tourangeau’s, and therefore Mr. Moorhead’s water rights have precedence over Mr. Tourangeau’s water rights.  When Mr. Tourangeau purchased his property in 2002, he was unaware of Mr. Moorhead’s water licence on Otto’s Spring, and Mr. Moorhead had not used water from Otto’s Spring since at least 2001.  Shortly after Mr. Tourangeau moved onto the property, Mr. Moorhead advised him that his water rights on Otto’s Spring had precedence over Mr. Tourangeau’s, but he hadn’t used the water for some time due to a problem with his water line near where it crosses some oil and gas pipelines.  Both parties have other sources of water.

In 2008, Mr. Tourangeau provided a sworn declaration to the Assistant Manager stating that Mr. Moorhead had not used the water from Otto’s Spring for more than 5 years.  Mr. Tourangeau requested that the Assistant Manager cancel Mr. Moorhead’s water licence on Otto’s Spring for failure to make beneficial use of the water for 3 successive years, pursuant to section 23(2) of the Water Act.  In or about the same time, Mr. Moorhead’s water line from Otto’s Spring was being excavated and reconnected.

In his appeal to the Board, Mr. Tourangeau submitted that, other than testing the new water line, Mr. Moorhead has not used the water from Otto’s Spring, and Mr. Moorhead does not have an easement or right-of-way for his water line over Mr. Tourangeau’s property.  Mr. Tourangeau argued that he has greater need for the water than Mr. Moorhead, and he requested that the Board cancel Mr. Moorhead’s licence so that Mr. Tourangeau would have “first right” to the water in Otto’s Spring.

The Board held that there is no authority under the Water Act to change the precedence date of a licence in order to give another licensee “first rights” to the water.  Section 23(2) of the Water Act provides authority to cancel a licence for failure to make beneficial use for 3 successive years, but section 18(1)(c) of that Act provides authority to extend the time set for making beneficial use of the water.  The Board found that, in the circumstances, Mr. Moorhead was properly given more time to make beneficial use of the water.  The Board found that Mr. Moorhead lost the use of water from Otto’s Spring through no fault of his own.  Rather, it was caused by the activities of oil and gas companies, who made it difficult for Mr. Moorhead to excavate his water line and make repairs.  The Board further held that his non-use of the water since the water line was reconnected appears to have been due to a dispute between himself and Mr. Tourangeau regarding a right-of-way or easement over Mr. Tourangeau’s property.  The Board found that the absence of a right-of-way or easement is not a ground for cancelling the licence at this time.  The Board concluded that the parties should be given time to negotiate access to Otto’s Spring and joint maintenance of the water works, or to proceed with expropriation and compensation under section 27 of the Water Act.

For those reasons, the Board confirmed the Assistant Manager’s decision.

Accordingly, the appeal was dismissed.