Decision Date: June 19, 2018

Panel: Alan Andison

Keywords: Water Sustainability Act – s. 105(1); water licence; groundwater; riparian owner; preliminary decision; standing

In November 2017, the Assistant Water Manager (the “Water Manager”), Ministry of Forests, Lands, Natural Resources and Rural Development, issued a groundwater licence (the “Licence”) to Christopher MacKenzie and Regula Heynck (the “Third Parties”). The Licence authorized the Third Parties to divert and use up to 10 cubic metres per day of water from Aquifer 408 for industrial purposes; i.e., fresh water bottling. The Third Parties own a small acreage in a rural area, and a groundwater well was drilled on the property before the Licence was issued. Bruce Gibbons owns land approximately ¼ mile away from the Third Parties’ property. His land also has a groundwater well.

When the Licence was issued, no other licences had been issued for Aquifer 408, and only one licence application was outstanding. The Province did not begin to regulate non-domestic groundwater use until 2016. A three-year transition period for existing domestic groundwater wells allows land owners to receive groundwater licenses if applications are filed by March 1, 2019.

Mr. Gibbons was not notified when the Licence was issued. He found out about the Licence a few months later, when the Third Parties applied to re-zone their property to permit “water and beverage bottling”.

In March 2018, Mr. Gibbons appealed the Licence on a number of grounds. He argued that: the Licence was approved without adequate baseline data; Aquifer 408 is located in a rural area where residents, farmers and agricultural operations rely on the aquifer for water; and, fish habitat in local creeks and rivers depends on the Aquifer during droughts. He also submitted that he was directly affected by the Licence, because he relies on a groundwater well for drinking water.

Before the appeal was heard, the Water Manager challenged Mr. Gibbons’ standing to appeal the Licence. Specifically, the Water Manager submitted that Mr. Gibbons did not qualify as an appellant under section 105(1) of the Water Sustainability Act (the “Act”), because he was not “an owner whose land is or is likely to be physically affected by” the Licence, a “riparian owner”, an authorization holder, or an applicant for an authorization. Since Mr. Gibbons was not an authorization holder or an applicant for an authorization, the Board focused on whether Mr. Gibbons was an owner whose land was or was likely to be physically affected by the Licence, or was a riparian owner.

The Board held that Mr. Gibbons was not “an owner whose land is or is likely to be physically affected” by the Licence within the meaning of section 105(1)(b) of the Act. The Board found that there was insufficient evidence to establish, on a prima facie basis, reasonable grounds to conclude that Mr. Gibbons’ land was, or would likely be, physically affected by the Licence. Mr. Gibbons provided no information about his well, such as its depth, the amount of water he draws, or how any impact on the flow of water from his well might “physically affect” his land. The Board noted that, based on the language in section 105(1)(b) of the Act, it is his land that must be affected, or be likely to be affected, as opposed to his water supply.

The Board also found that there was insufficient evidence to conclude that Mr. Gibbons was “a riparian owner” within the meaning of section 105(1)(d) of the Act. The phrase “riparian owner” is not defined in the Act, but under common law principles it means a person who owns land that is abutting, adjacent to, or bordering on and in contact with a stream that has a defined channel. The phrase has not been used in relation to groundwater. The Board found that Mr. Gibbons provided no evidence that his land is adjacent to any particular stream, especially a stream that is hydraulically connected to Aquifer 408. In addition, the Water Manager’s evidence showed that Aquifer 408 is probably a confined aquifer, and is unlikely to be connected to a stream.

For all of those reasons, the Board concluded that Mr. Gibbons had no standing to appeal the Licence, and therefore, the Board had no jurisdiction over the appeal.

Accordingly, the appeal was dismissed.