Decision Date: March 14, 2011

Panel: Gabriella Lang

Keywords: Water Act – ss. 12, 12.2; water storage licence; residential hydro power licence; domestic water licence; dam; culvert; flooding; notice

In this decision, the Board addressed three separate appeals that were heard together. All of the appeals were against decisions of the Assistant Regional Water Manager, Ministry of Environment (the “Ministry”) regarding applications for water licences on Holmes Creek, on Lasqueti Island. Tim Coertze and Sara de Rose appealed the refusal of their application for a water storage licence associated with a residential power project. Albion Samuel Tidler appealed the issuance of a domestic water licence and a water licence for residential power purposes to Mr. Coertze and Ms. de Rose.

The Appellants own adjoining property. Holmes Creek flows through the de Rose/Coertze property, and two swamps straddle the Appellants’ properties. In April 2009, the Ministry received a complaint that a dam constructed on the de Rose/Coertze property was affecting one of the swamps. The Ministry investigated and found that all of the Appellants had constructed works on Holmes Creek and were withdrawing water without authority. On their property, Mr. Coertze and Ms. De Rose had constructed a road, which ran atop a dam with a culvert in it, adjacent to one of the swamps. They also installed a water wheel to generate power for their home.

The Ministry directed the Appellants to submit applications for water licences to legalize their activities. The applications submitted by Mr. Coertze and Ms. de Rose led to the appeals. In 2009, they applied for licences authorizing water storage and power generation. They also applied for a domestic water licence to support a future dwelling. The applications submitted by Mr. Tidler were not part of the appeals.

Mr. Tidler appealed the issuance of the licences authorizing domestic water use and residential power use on the basis that: the licensing process was flawed; the licences should not have been issued because Mr. Coertze and Ms. de Rose were violating the Water Act; and, the licences do not protect Mr. Tidler’s property from flooding caused by the dam construction, the failure to keep the culvert clear and the failure to manage beaver activity in the swamp.

Mr. Coertze and Ms. de Rose appealed the refusal to issue the storage licence on the basis that water storage is part of their residential power project and is needed during the winter months only.

The Board found that Mr. Tidler received timely and sufficient notice of the licence applications, as indicated by the fact that he had time to provide written objections to the Assistant Regional Water Manager. In addition, the Board found that there were no irregularities or deficiencies in the licensing process, and even if there had been any procedural deficiencies, they would be cured by the Board conducting the appeals as new hearings of these matters.

The Board also considered whether the dam and plugging of the culvert was causing flooding on Mr. Tidler’s property. The Board found that there was evidence of flooding on Mr. Tidler’s property, but the dam and/or plugging of the culvert were not the likely cause. There was credible evidence of other likely causes, such as beaver activity in the area.

Next, the Board considered whether each of the licensing decisions were reasonable exercises of discretion.

The Board found that the Assistant Regional Water Manager had good reasons for refusing to issue the storage licence. In particular, the Ministry had concerns about the dam structure and had not yet decided whether the dam should be approved. In addition, the Assistant Regional Water Manager had requested that the Appellants sign a joint landowner agreement for managing the swamp, because the Appellants’ activities in the swamp affected each other’s properties, but they failed to reach an agreement. The Board held that the Appellants’ failure to reach a consensus on managing the swamp provided a basis for refusing the storage licence.

Regarding the residential power licence, the Board found that there is no requirement in the Water Act to refuse a licence just because water is being diverted or works have been constructed without authority. By requiring the Appellants to apply for licences, their water uses were brought into compliance and could be regulated. In addition, to address Mr. Tidler’s concerns about flooding and the dam, the Ministry had issued separate orders requiring Mr. Coertze and Ms. de Rose to keep the culvert clear, and requiring them to construct a spillway to temporarily secure the dam.

Finally, the Board found that there was sufficient water supply to support the domestic water licence, and there was no evidence that the licence would adversely affect Mr. Tidler’s property.

Accordingly, the appeals were dismissed.