Decision Date: October 28, 2013

Panel: Gabriella Lang

Keywords: Water Act – s. 23(2); licence; cancellation; beneficial use; water source

Two groups of appellants appealed a decision of the Assistant Regional Water Manager (the “Water Manager”), Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), cancelling a water licence on Loveridge Spring, located near Penticton, BC. The Appellants are: Robert Ackerman, Julie Nurse, Kenneth Hampton and Alix Macdonald (the “Ackerman Appellants”); and Dieter Haubold and Swissterra Land Corporation (the “Haubold Appellants”).

The water licence was originally issued to Keith Loveridge in 1978. The licence authorized the diversion and use of 50 acre-feet of water per year from Loveridge Spring for irrigation purposes. Also, in 1978, Mr. Loveridge received a water licence authorizing the diversion and use of 500 gallons of water per day from Strutt Spring for domestic use. Sketch plans attached to each water licence showed the respective points of diversion on Loveridge Spring and Strutt Spring, both of which were on land owned by Mr. Loveridge.

In August 2012, the Ministry determined that the water licence on Loveridge Spring required amendment to reflect the subdivision of Mr. Loveridge’s original property, to which the water licence was originally registered. The Ministry identified properties owned by the Appellants and the Third Parties as being within the appurtenancy of the Loveridge Spring water licence. The Water Manager sent letters to the Appellants and Third Parties advising of the possible licence amendment, and requesting that they indicate whether they were using, and/or wanted the rights to, any water from Loveridge Spring.

In response, Mr. Ackerman and Ms. Nurse jointly requested 5 acre-feet of water per year. Similarly, Mr. Hampson and Ms. Macdonald jointly requested 5 acre-feet of water per year.

On behalf of the Haubold Appellants, Mr. Haubold advised the Water Manager that he objected to the other parties’ requests for apportionment of the water supply, and he disputed the location that the Ministry had identified as being the site of Loveridge Spring. He also requested a site inspection, which occurred in November 2012.

Meanwhile, in September 2012, the Ministry conducted two site visits at the area identified in Ministry records as the location of the Loveridge Spring license point of diversion, but the Ministry found no water at that site and no indication of any beneficial water use in accordance with the licence.

In October 2012, the Water Manager notified the Appellants and Third Parties that he intended to cancel the Loveridge Spring water licence due to the lack of water at Loveridge Spring. In the same letter, he advised that Ministry staff had identified a non-licensed water source approximately 110 metres southwest of Loveridge Spring, but this water source did not contain sufficient water to support irrigation.

In November 2012, the Water Manager cancelled the Loveridge Spring water licence under section 23 of the Water Act.

The Ackerman Appellants appealed to the Board on the basis that the Ministry records did not show the correct location of Loveridge Spring. They asked the Board to direct the Water Manager to confirm the location of Loveridge Spring through a survey, and then determine whether there is sufficient water available for licensing.

The Haubold Appellants appealed to the Board on the basis that the Ministry records did not show the correct location of Loveridge Spring. They asked the Board to direct the Water Manager to amend the Loveridge Sring licence to show the point of diversion that the Ministry had identified as Strutt Spring, and to deny the Ackerman appellants’ applications for water rights. They submitted that the Ministry had re-named Loveridge Spring to be Strutt Spring.

The Water Manager submitted that the decision cancelling the licence should be confirmed, because there was inadequate water at Loveridge Spring to support any licensed use, and there had never been any water use at that location pursuant to the licence.

The Board considered detailed map information, field notes, and document evidence regarding the locations of Loveridge Spring and Strutt Spring. Also, the Parties and the Board conducted a site visit. Based on the evidence, the Board found that the Ministry’s records correctly identified the location of Loveridge Spring, and that Strutt Spring is a separate water source located a significant distance away from Loveridge Spring.

The Board also found that no water works were ever constructed at Loveridge Spring, even though the licence required works to be constructed and in use by the end of 1981. Under section 23(2) of the Water Act, a licence and all rights under it are subject to cancellation if certain requirements are not met, including: failure by the licensee for three successive years to make beneficial use of the water; failure to construct the works authorized under the licence; and, failure to comply with a term or condition of the licence. In these circumstances, the Board found that it was reasonable to cancel the licence pursuant to section 23(2) of the Water Act.

Accordingly, the appeals were dismissed.