Decision Date: February 19, 1998

Panel: Katherine L. Hough, Helmut Klughammer, Harry Higgins

Keywords: Conditional Water Licence; cancellation of licence; water for industrial use; fish culture; fish salvage; works; beneficial use; Fishery General Regulations – s. 55(1), (2); Fisheries Act – ss. 55, 56; Water Allocation Guidelines

Mike O’Neill appealed the decision of the Deputy Comptroller of Water Rights to cancel the industrial portion of Conditional Water Licence (CWL) 72693 Biggs Creek. The industrial portion of the CWL was cancelled because Mr. O’Neill failed to construct the fish-salvage works authorized under the license, and to make beneficial use of the water under the industrial portion of the licence, within the time period specified in the licence. The grounds for his appeal were that he had used the water beneficially but that there was insufficient water in the creek to make the original industrial use plan feasible. He maintained that the issuance of four additional domestic water licences for the creek, plus the removal of water by two unlicensed users, adversely affected the supply. He also argued that he had paid all necessary fees and abided by the laws and guidelines.

The Board found that there was no evidence that the salvaging of fish was taking place or that the existing works, in the form of a single pond, were suitable for that purpose. It also found that the industrial portion of the licence greatly exceeded the total average daily flow of Biggs Creek, a fact that was not established until other potential water users requested domestic licences for water from the creek. Furthermore, the Board found that no permits had been obtained under sections 55 and 56 of the Fisheries Act either to possess live fish or discharge the waste produced by harbouring them, and that he was therefore not in a position to use the industrial portion of his licence. Based on this finding and on the finding that Mr. O’Neill did not comply with the terms for the construction of works in the industrial portion of CWL 72693, the Board upheld the cancellation of that portion of the licence. The appeal was dismissed.