Decision Date: June 12, 2000

Panel: Cindy Derkaz

Keywords: Water Act – ss. 2(1), 32(1), 42; domestic use; fire prevention; extinguishing a fire; unrecorded water; works; Charter; search and seizure.

This was an appeal of an order by the Engineer requiring Earl Devlin to drain impounded water and to remove two earthen dams located in an unrecorded stream on his property. The order was issued because Mr. Devlin had not obtained a licence prior to constructing the works, and the Engineer believed that the works were of inferior construction and could be subject to failure. Mr. Devlin asked that the order be cancelled on the grounds that the works were safe and the water would be used for fire prevention purposes (domestic use). He also argued that the Board should not consider evidence obtained by Water Branch employees because their entry onto his property and their taking of photographs constituted an unreasonable search and seizure, contrary to section 8 of the Charter of Rights and Freedoms.

The Board found that the Water Branch officials had statutory authority to enter onto his lands, and that the act of inspecting lands for administrative or regulatory purposes did not constitute a search within the meaning of the Charter. Likewise, the taking of photographs did not constitute a search or a seizure. The Board also found that, while it is not an offence to divert unrecorded water for domestic purposes, it does not create any right to use the water or to construct works, and does not authorize the permanent storage of water. Therefore, Mr. Devlin’s works were unauthorized. The Board accepted the Engineer’s evidence that the works were not safe and upheld the order. The appeal was dismissed.