Decision Date: December 3, 1999

Panel: Toby Vigod, Cindy Derkaz, Katherine Hough

Keywords: Water Act – s. 23; Environment Management Act – s. 11(14.2); cancellation of water licence; onus of proof of beneficial use; economic development; fishery conservation; costs

This was an appeal of a decision of the Assistant Manager refusing to cancel a number of water licences held by Kamlands. The licences authorized the diversion, storage and use of water for irrigation purposes on property commonly known as Six Mile Ranch, near Savona, B.C. The Appellants sought an order cancelling the licences pursuant to section 23(2)(a) of the Water Act on the grounds that Kamlands, and previous licence holders, failed to make beneficial use of the water for more than eight years.

The Panel considered the definition of “licensee” in the Act and found that the question is whether the current owner of the property (Kamlands) has made beneficial use of the water. Based on the evidence, the Panel concluded that Kamlands had not established that it made beneficial use of the water for three successive years in accordance with the terms and conditions of the licences. However, the Panel noted that section 23 of the Act does not require cancellation in these circumstances – the decision to cancel is discretionary. The Panel found that economic factors (including the viability of a development), as well as fishery conservation and the public interest are proper criteria upon which to base a decision, and that the Assistant Manger’s decision was appropriate. Although Ministry policy was persistently ignored in this case, it was a hearing de novo, and the Panel arrived at the same conclusion on the facts.

Kamlands applied for costs against the Assistant Manager and the Appellants, submitting that they failed to advise it in a timely manner about the issue of non-beneficial use of the licences. Kamlands asserted that, if it had been advised about this issue, it could have moved expeditiously to use the licences and avoided the expense of the appeal.

The Panel found that there were no special circumstances in this case that warranted the awarding of costs. The application for costs was denied. The appeal was dismissed.