Decision Date: June 5, 1997

Panel: David Perry, Gary Robinson, Helmut Klughammer

Keywords: Water Act, 1996 – s. 23 (2)(a); historical priority of water use; purpose of the Act; aboriginal rights

This was an appeal of a decision by the Deputy Comptroller of Water Rights to cancel a final and two conditional water licences held by the Appellants. The licences permitted diversion of water from Marshall Brook for irrigation purposes. These licences were previously the subject of a 1989 EAB appeal. As at that time, cancellation was for failure to make beneficial use of the water for 3 successive years.

The Appellants argued that they did not use the licences because they were under the mistaken impression that part of the works were on Mr. Berscheid’s property and, due to threats from him, they did not rehabilitate the works. They further argued that there was a duty on the Water Branch to advise them of their error and, alternatively, that they had an aboriginal right to water outside of the structure of the Water Act.

The Board found that neither Appellant took any care to use the licences beneficially. It rejected the argument that the Water Branch was under a positive obligation to inform the Appellants of facts regarding neighbouring landowners and, in any event found that, even if there was such an obligation, the Water Branch had met it by providing detailed maps and aerial photos in the course of the 1989 EAB hearing. The Board held that it had no jurisdiction in this case to make findings as to aboriginal rights, and found that the 1888 “Minutes of Decision” which created Reserve No. 9 were of no assistance. The Board upheld the cancellation of the licences. Appeal dismissed.