Decision Date: July 16, 2018

Panel: Gabriella Lang, Lorne Borgal, Reid White

Keywords: Water Sustainability Act – ss. 26(1), 105; water licence; licence amendment; point of diversion

Jack and Linda Chisholm (the “Appellants”) appealed a decision issued by the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development. In the decision, the Water Manager denied the Appellants’ request to amend their Conditional Water Licence C68000 (the “Licence”).

The Appellants own a large ranch, with four water licences attached to their property. The Licence was issued in 1988, but the water rights in the Licence were originally issued in 1904 through a water grant. The Licence authorized the use of up to 57 acre feet of water per annum for irrigation purposes. The Licence stated that the water source was “Cameron Creek, with a re-diversion of water from Thos Creek”. Attached to the Licence was a map indicating a point of diversion (“POD”) on “Cameron Creek” and a point of re-diversion on Thos Creek. The Licence also stated that the authorized water works were “diversion structures, pipe and sprinkler system, which shall be located approximated as shown on the attached plan.”

The Appellants applied for an amendment to the Licence to correct alleged errors. The Appellants maintained that historical mapping errors and renaming of streams had led to their water rights on Cameron Creek being usurped. They alleged that the Licence did not reflect the correct location of their authorized POD, as authorized by the water grant in 1904. The Appellants also requested an amendment to authorize works that had historically been used for irrigation on their property.

The Water Manager denied the Appellants’ application to amend the Licence. He concluded that there was no error to correct, because the re-naming and re-mapping of water sources and PODs occurred in conjunction with water licence amendments in 1988, and the source locations were confirmed in an appeal to the Comptroller of Water Rights in 1993. In addition, he found that the historical POD was now on a different source, Heldon Brook, and amending a licence to a different source is not permitted under section 26(1) of the Water Sustainability Act.

The Appellants appealed the Water Manager’s decision on several grounds. They argued that the Water Manager: erred by refusing to correct stream naming and mapping errors associated with the Licence; failed to acknowledge that those errors usurped the Appellants’ historic water rights; erred by considering their application as an attempt to seek new or additional water rights; relied on the outcome of the 1993 appeal without advising them that he would be considering it; and, demonstrated bias. The Appellants asked the Board to reverse the Water Manager’s decision, amend the Licence by moving the POD back to its historic location on Cameron Creek as shown on maps before 1977, and authorize the existing water works on the Appellants’ property.

First, the Board considered the Appellants’ allegation that the Water Manager was biased. The Board held that any potential bias was cured by the appeal hearing, which was conducted as a new hearing of the matter. Furthermore, even if the hearing did not cure those defects, there was inadequate evidence to support the allegation of bias.

Next, the Board considered whether the Water Manager had the jurisdiction to make the requested amendments to the Licence. The Board found that the Water Manager had the authority to amend the Licence to fix an error under section 26 of the Water Sustainability Act. Under that section, the Water Manager may, on application of a licence holder or on his own initiative, amend an “authorization” to correct an error in the authorization. The “authorization” in this case was the Licence.

Finally, the Board considered the merits of the Water Manager’s decision. The Board reviewed historical maps, sketches, and water licences. In 1904, the Ministry granted the then property owner the right to divert water from Cameron Creek. Water licences from 1914, 1925, and 1977 identified Cameron Creek as the water source, and their maps showed the POD on Cameron Creek. The maps showed a stream named Cameron Creek, and not Heldon Brook. Based on the evidence, the Board concluded that since 1904, successive owners of the property held water rights on Cameron Creek, which always flowed through the property. The stream that the Water Manager referred to as Heldon Brook was a historical portion of Cameron Creek, as shown on historical licensing maps. Thus, in applying for the amendment, the Appellants were not asking for new or additional water rights; they were asking for the Licence’s POD to be put back to where it was from 1904 to 1977. The Board also found that the 1993 appeal to the Comptroller of Water Rights settled nothing related to Cameron Creek, and may have contributed to the confusion about the location of water rights identified in this appeal.

For these reasons, the Board directed the Water Manager to amend the Licence map by showing the POD at its pre-1977 location, and by amending the Licence so that it listed the existing irrigation works.

Accordingly, the appeal was allowed.