A recent Manitoba court decision has a farmer feeling vindicated, more than a year after he was taken to court for diverting water without a provincial water rights licence.
Manitoba provincial court judge Brian Giesbrecht ruled that Ray Hildebrandt’s drainage project was a municipal matter, not a provincial one.
The decision could have far-reaching implications for how farmers in the province are allowed to drain their fields.
Hildebrandt’s lawyer, Michael Waldron, said the case shows that drainage should be dealt with under the municipal act rather than the provincial water rights act.
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Manitoba’s natural resources department has been using the water rights act to control drainage on farmland.
“There’s no question that this is a precedent,” Waldron said. “Natural resources has taken a very tough position all the way through and basically just bulldozed in and said, ‘We control this area.’ Well, I don’t think they do.”
The crown plans to appeal. Waldron hopes a date for the appeal can be set in March.
Hildebrandt, who farms near Ninga, Man., said natural resources may have to rethink its efforts to control drainage works.
“Hopefully, municipalities will take action now that they have jurisdiction,” he said.
“We can’t very well afford to have that problem ignored with the ruling the judge brought down in our favor.”
In August 1997, Hildebrandt hired a backhoe operator to dig a trench that would drain water from a field into a municipal ditch. The provincial natural resources department told Hildebrandt he needed a water rights licence and ordered the backhoe operator to backfill part of the trench, Hildebrandt said.
The following month, Hildebrandt re-opened part of the trench with a spade to drain water from the quarter section that he rents from his father. In October, he received an offence notice for diverting water without a licence.
Hildebrandt said the drainage was needed to salvage farmland that was swamped due to wet weather. Aside from the arable land that was under water, a portion of the field could not be reached because it had become surrounded by water.
Hildebrandt thinks natural resources wanted to thwart his drainage efforts to keep part of his land as wildlife habitat. While some of it has been in its natural state for decades, most had been farmed before the last round of wet weather.
“We do appreciate wildlife,” said Hildebrandt, “but we also appreciate the fact that we need to make a living for our families.
“It wasn’t like I was draining it into a ditch and not caring what happened downstream.”
The same year, improvements to a municipal road that divides the rural municipalities of Morton and Turtle Mountain led to trenching to remove water bordering the road and make it easier to complete the road construction.
There was a complaint from an area landowner, however, that the trenching allowed water to flow from one watershed into another.
Natural resources had the ditch closed, preventing water from flowing south. That hampered Hildebrandt’s hopes of lowering the water level on the flooded land he rents.
