Decision Date: September 18, 1998

Panel: Carol Quin, Christie Mayall, Cindy Derkaz

Keywords: Water Act – s. 2, 15; riparian rights; authority of Manager to divert entire flow

The Appellants sought an order that a Conditional Water Licence (“CWL”), issued by the Regional Water Manager (the “Regional Manager”), be amended to allow some water from a diverted creek to flow down its original channel which flows through their property. The CWL authorized diversion of the entire flow of the creek into a pond for wildlife and waterfowl habitat conservation. An earth plug had been diverting the flow of the creek, under various licences, since 1939. The CWL did not change this structure. The Appellants argued that none of the previous licences for the structure had authorized diversion of the entire flow and that, since the last licence had been abandoned, the diversion structure was illegal at the time the CWL was issued. They further argued that some of the flow from the creek had previously made its way into the original channel and an amendment to the CWL was needed to ensure that this remained the case.

The Board found that the Regional Manager had the authority to licence the complete diversion of a creek for beneficial use. Even though the diversion had been unauthorized for a period of time, the Regional Manager was not restricted from later licensing the diversion. The Board found that although people may “object” when their rights would be prejudiced by the granting of a licence, the Appellants were not licensees and did not have any “right” to continued flow of the water under the Act. On the evidence, the Board concluded that the existing diversion structure had been diverting the entire flow for some time. Any flow experienced by the Appellants was likely due to seepage and local runoff, which would not change. Given the flow of the creek had been fully diverted for almost 60 years, the CWL reflected the status quo by permitting, but not requiring, full diversion, and an increase of flow into the original channel could cause problems for other residents living along the original channel, the Board upheld the Regional Manager’s decision. The appeal was dismissed.