Q: Several years ago, a Saskatchewan municipality rebuilt a road and there have been flooding problems on my land since. When the road was built they put a culvert under the road, which has resulted in several acres of my hay land flooding regularly. I have taken it up with the reeve and local council, but they have taken no action.
A: In all provinces, before a person can do water drainage or diversion projects, he must first obtain permission from the appropriate provincial authority. The Rural Municipality Act provides that council may construct any drains “the council may consider expedient to secure the proper drainage.” However, the same section, 204, makes it clear that this power can only be exercised subject to the Saskatchewan Watershed Authority Act. If water is being diverted or dammed, the municipality must obtain permission for any drainage.
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The watershed authority is also authorized to deal with complaints as a result of a water drainage project. First the complainant must try to resolve the issue with the person or organization responsible. The authority can attempt mediation, hold a formal hearing or order the closure or alteration of any drainage works, but it cannot award damages. Decisions of the authority can be appealed to the Water Appeal Board. Such appeals must be launched within 30 days.
As an alternative or in addition to complaint to the authority, you may be able to advance a civil claim. However, Section 410 of the Saskatchewan Rural Municipality Act provides that a municipality is not liable for damages suffered from the overflow of water in ditches if the overflow is caused by an “extraordinary natural event.”
This section does not exempt negligence. If a municipality constructs a road knowing that it may cause water flow problems, then this section would not protect a municipality.
Section 404 provides that a municipality cannot be sued for damages arising from flooding unless notice is given to the administrator within 60 days of the flooding and a civil action commenced within one year. This might preclude claims for past flooding.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
