Canada: Water Rights And The Importance Of Due Diligence

Last Updated: August 25 2015
Article by Olga Rivkin

A recent decision of the British Columbia Environmental Appeal Board in Michael and Joaney Lindelauf; Jill Fitzpatrick; William Switzer v. Assistant Regional Water Manager (issued on August 15, 2015) serves as a reminder that (quoting the Board): "any person buying rural property must do their research regarding water rights and water availability, just as they must investigate and confirm where the property boundaries are".

In this case, the appellant property owners did not do their research.  They admitted to the Board that they bought their properties assuming that if there was a stream on the property, it would always be there, and they could always use it for domestic purposes whenever they liked.  They did not acquire water licenses to the stream.

It turned out that the stream in question was an unauthorized diversion of a creek called Robbins Creek, which did not originally flow through the appellants' properties.  After numerous complaints from property owners who benefitted from the original Creek, the Ministry of Environment decided to re-divert the Creek to its original route.  The Ministry obtained an approval pursuant to section 9 of the Water Act (changes in and about a stream) to carry out the diversion (the "Approval").

The proposed diversion meant that the appellants would lose the benefit (and the aesthetic value) of the stream.  They appealed the Approval on a number of grounds, including merits of the Approval, the constitutionality of the Water Act, and institutional bias of the Regional Water Manager in issuing the Approval (i.e., the Ministry applying to the Ministry for an approval). The Board sided with the Ministry on all grounds and upheld the Approval.

Below are a few notable points from the decision:

1. The appellants argued that the only reason for the works and the Approval was to benefit the property owners who held licenses for the original Robbins Creek, which – the appellants argued – was an improper motive.  They also argued that the diverted stream was man-made and, therefore, was not a stream for the purpose of the Water Act.

The Board disagreed with the appellants stating that section 9 of the Water Act "provides broad discretion to the statutory decision-maker.  There is nothing in the wording of section 9 that restricts the decision-maker's authority to any specific purpose....''  Furthermore, in the Board's view: "it would lead to absurd results if an approval could not be issued under section 9 to restore the flow of water from a stream that has been diverted without authorization to a man-made channel."

2. The appellants argued that they were prejudiced by delays in dealing with the diversion of Robbins Creek.  Based on the evidence, the diversion was created sometime in the 1960s.  The complaints about the shortage of water in the original Creek bed started in the 1970s.  The Ministry initiated the investigation into the matter in 2011, which resulted in the Approval being issued in 2013.  The appellants asserted that the passage of time prevented the Ministry from applying for a section 9 approval.

The Board rejected this argument, stating that: "... the Water Act provides no time limitation for section 9 applications or approvals.  Moreover, the Panel finds that the Ministry witnesses reasonably explained the history of problems and investigations in the Robbins Creek watershed, and why thorough investigation of the section 9 application took time to complete."  The Board also found that the appellants failed to establish that they have been prejudiced by what they considered to be the Ministry's delay. 

3. The appellants argued that they were negatively impacted by the Approval and that the Ministry should have considered alternatives.  To that effect, section 38(2) of the Water Regulation requires that works in and about a stream must be constructed in a way that does not pose a significant danger to life, property or the environment.

The Board found that the appellant did not establish that the diversion works would pose a significant danger to life, property or the environment.  They only speculated about what might happen.  Also, the Board found that the Ministry carefully considered its options and selected the course of action they considered most appropriate. 

4. The appellants argued that the ability to govern water rights in British Columbia was not within the legislative competence of the Province and that the Water Act did not recognize rights to water that existed at common law.  They alleged that they had a common law right to use the diverted stream.

The Board rejected this argument stating that riparian owners have no constitutional right to the use or ownership of water in the Province, and the common law rights that riparian owners enjoyed historically have been abrogated by the Water Act.

5. The appellants argued that employment within the same ministry by the applicant for the Approval and by the decision-maker created an institutional bias. 

The Board rejected this argument stating that a plurality of functions in a single administrative agency was not necessarily problematic.  "Although that would mean that ... 'the Ministry applied to the Ministry,' that does not automatically mean that there is a reasonable apprehension of bias, actual bias or institutional bias."  The Board found that the facts in this case did not support a finding of bias.

Aside from illustrating the wide range of legal and factual issues which may arise in water disputes, this case emphasizes the importance of researching water rights when buying property, especially if water is an important factor in the acquisition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Olga Rivkin
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