Decision Date: May 15, 1997

Panel: Judith Lee, Helmut Klughammer, Laurie Nowakowski

Keywords: Water Act – ss. 2, 32, 39, 40, 41; “best use”; “natural flow”, riparian rights, trespass

This was an appeal against a decision of the Deputy Comptroller of Water Rights requiring Elkink Ranch Ltd. (“Elkink”) to remove an obstruction placed in a channel of Swartz Creek without authority, and to restore channel flow to its “natural course” towards the swamp. The Appellant, holder of water licences on Swartz Creek and Richter Lake, submitted that the obstruction was placed in the creek to allow it to flow in its “present natural direction” towards Richter Lake. It sought a determination from the Board that the natural surface water flow is towards Richter Lake and an order that the flow be allowed to proceed in that direction.

The Board found that the Appellant required approval for its actions and that the Respondent had acted within its authority in making the order. However, the Board found that the creek’s natural flow varies, so rescinded that part of the order requiring the Appellant to redirect the creek towards the swamp. The Board determined that the Appellant was the only “beneficial user” of the water from Swartz Creek and ordered the Respondent to either amend Elkink’s current licence or issue the appropriate authorization to allow the Appellant to divert 50% of the flow toward Richter Lake. Appeal allowed.