Decision Date: December 27, 2012

Panel: Cindy Derkaz

Keywords: Water Act – ss. 13(c), 16(1), 18(1); licence; appurtenant; tenant in common; owner of land; licensee

Daniel Boyd Fretts appealed a decision of the Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), to issue a water licence to Mr. Fretts and 4 other co-owners of land on Cortez Island. The co-owners hold the land as tenants in common, which means that they each own an undivided interest of the entire parcel of land. Mr. Fretts owns an undivided 28/122 interest in the land.

Since 1977, Zephyr Creek has been used as an unlicensed water source by the co-owners. In 2011, Mr. Fretts applied for the licence to supply water to his cabin. After applying for the licence, he installed a pump, pipes, and valves to divert water from the existing shallow well on Zephyr Creek to his cabin.

The Ministry notified the other co-owners of Mr. Fretts’ application. Two of the co-owners objected to the application.

In March 2012, the Water Manager and other Ministry staff conducted a site visit, and estimated the flow of water in Zephyr Creek. Subsequently, the licence was issued.

The licence states that it is appurtenant to the co-owners’ land, and all co-owners are licensees. The licence authorizes the co-owners to divert and use 500 gallons per day of water from Zephyr Creek for domestic purposes.

Mr. Fretts appealed to the Board on the basis that he should be the sole licensee, because he applied for the licence in his name only, and the licensed volume of 500 gallons per day is sufficient for his domestic use only. He submitted that it is absurd for people who have separate dwellings, served by separate water works, to share water rights that were intended for use at only one dwelling. Mr. Fretts requested that the Board amend the licence, either by making it appurtenant only to his interest in the land, or by naming him as the sole licensee.

The Board found that the crux of the appeal is the co-ownership of the land as a tenancy in common, and the nature of that form of land ownership. The Board noted that section 13(c) of the Water Act provides that every water licence must be appurtenant to “land, a mine or undertaking” that is located in British Columbia. Also, under section 16 of the Water Act, a water licence, and any rights and obligations granted and imposed under the licence, pass with a conveyance or disposition of the land. As such, a licensee holds rights under a water licence in his or her capacity as an owner of the land to which the licence is appurtenant. The rights under a water licence pass with the land, and are not the licensee’s personal property.

The Board held that, as tenants in common, Mr. Fretts and the other co-owners are entitled to possess the whole parcel of land, including all buildings. Mr. Fretts has a distinct, but not separate, interest in the land, and no co-owner owns any particular part of the land. Mr. Fretts cannot hold exclusive rights under the licence, because all of the co-owners have equal rights to possess the entire parcel of land to which the licence is appurtenant. Consequently, the Board found that the Water Manager correctly issued the licence to the co-owners of the land.

Accordingly, the appeal was dismissed.