Q: A dam was built in the 1950s on a Saskatchewan farm to provide water for a market garden. The proper authority was obtained for the construction of the dam. Years later the owner of the land, A, sold the land to B. However, A retained approximately 10 acres, which contained the dam, and gifted it to his son C. All of this happened 15 years ago.
Recently, B and D, a farmer downstream from the dam, have complained that the dam is causing them problems. B says the dam has flooded some of his land; D complains that seepage from the dam is preventing him from accessing some of his land.
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Both B and D acquired their interests after the dam was in place so they should have been aware of the potential problems. However, they both complained to Sask Water. C would like to preserve the dam as it is. C lives near the dam in the summer and considers it a family heirloom.
Sask Water indicates that as the dam is no longer used for the purposes for which it was originally intended, it should be breached. Does it have the authority to revoke a licence that was issued a long time ago?
A:In 1984, the Saskatchewan government established Sask Water. The corporation was given the authority to regulate water use and drainage. As in other parts of the country, the act declares water to be a public resource requiring approval to use (an exception is made for domestic use) and requires approval for drainage projects that will impact beyond the boundaries of one’s property.
While the act sets out general rules, most of the decisions are left to administrative authority. As University of Alberta law professor David Percy pointed out in his book The Framework of Water Rights Legislation in Canada, “Saskatchewan chose to deal with water rights by attempting to jettison nearly a century of legal history and to make a fresh start.
“However, the act fails to deal with virtually every difficult issue in the administration of water rights and thus by default leaves those issues to be decided bureaucratically.”
Under section 42 of the act, the corporation may “cancel the right of person granted prior to the coming into force of this act” where the corporation considers it to be in the “public interest to do so.” Such cancellation is subject to the approval of the cabinet and compensation must be offered.
From the sounds of your letter the dam is no longer being used to support a market garden. Under section 41 of the act, the corporation may cancel the right to use water where it is being used for a purpose other than that for which it was acquired. Further under section 64 the corporation may cancel, alter or suspend approval where “it is satisfied that the person who has the approval has ceased to exercise rights granted under it.”
A strict legal argument could be made that the previous sections I quote (41 and 64) do not apply to works in existence prior to 1984 and that the only applicable section is 42.
From a practical point of view, the corporation advises me that if a work has been long-standing, it is unlikely to order that it be dismantled. Rather, it would work to see if the problems could be corrected without such drastic action.
Decisions of the water corporation can be appealed to the Water Appeal Board. Notice of appeal must be served on the board within 30 days of the decision complained about. The board can be reached at 216-3085 Albert St., Regina, S4S 0B1 or 306-798-7462. Decisions of that board can be appealed to Court of Queen’s Bench on points of legal interpretation.
Readers should be aware that this column deals with Saskatchewan legislation. Water use and diversion is regulated in all pro-vinces and the law varies considerably between them.
