Decision Date: September 28, 1998

Panel: Judith Lee, Elizabeth Keay, Helmut Klughammer

Keywords: Water Act – s. 37, 41; Fisheries Act – s. 35(1); changes in and about a stream; meaning of “natural boundary”; Westwood Plateau Partnership v. WSP Construction Ltd. [1997] B.C.J. No. 1294, p. 92 (B.C.S.C.); Charter of Rights and Freedoms

Raymond Creed appealed a decision of the Deputy Comptroller of Water Rights, upholding an Engineer’s Order requiring Mr. Creed to cease depositing materials into, and to restore and remediate changes in and about a stream channel (Shawnigan Lake). Mr. Creed did not dispute that he failed to obtain approval for the retaining wall he built on the lake foreshore. However, he argued that the works were not performed in a “stream channel”: they were above the “natural boundary” of the channel as it was prior to manipulation of the lake level. He also argued that the construction had no impact on the lake, that the Deputy Comptroller had breached the rules of natural justice, and that his Charter rights had been violated. The latter argument was subsequently dropped.

The Panel found that the best evidence of the natural boundary of the lake was the winter lake level, and that Mr. Creed’s works were constructed below that boundary (i.e., within the channel). It stated that his property survey showing a different natural boundary was not relevant to this determination. The Panel further found that the construction would have some impact on the lake as it had damaged riparian vegetation and resulted in debris in the lake. The Panel found no breaches of natural justice at the first level of appeal, and that the hearing before the Board cured any deficiencies in that process in any event. The Panel found that the Engineer had jurisdiction to issue the Order and that its terms were appropriate in the circumstances. The appeal was dismissed, and the Engineer was directed to set a new date for completion of Order.