A case that could set a precedent for land drainage in Manitoba is before the Court of Queen’s Bench in Brandon.
At the centre of the case is Ray Hildebrandt, a Ninga, Man., farmer who was charged two years ago with illegally draining water from his land. Hildebrandt diverted water from a field without a permit from the province.
Earlier this year, a provincial court judge dismissed the charges against Hildebrandt. Judge Brian Giesbrecht ruled that drainage is a municipal jurisdiction rather than a provincial one.
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The province appealed that decision, believing that its natural resources department needs a say in how water drainage is managed.
Last week, in the Court of Queen’s Bench, Hildebrandt’s lawyer again argued that drainage should be controlled by municipalities. That responsibility is spelled out in the province’s municipal act, said Michael Waldron in a June 3 interview.
“In my mind, it’s a complete jurisdiction.”
But crown attorney Mary Goska argued there is shared jurisdiction between the province and municipalities. She told the courts that the province gains its authority through the water rights act, which deals with water diversion.
A decision from the court could come later this month.
Watching with interest
Bob Wooley, regional director for natural resources, is following the case closely. Natural resources “reined back” its efforts to control drainage following the ruling by Giesbrecht, said Wooley. But because of the appeal, the department chose not to abandon the field.
Wooley insists that his department needs a say in drainage, especially where water flows across municipal boundaries.
“This appeal will be a more significant matter with regard to our legislation and policies.”
While the case is winding through the courts, Hildebrandt’s home municipality, the RM of Morton, decided to implement a drainage bylaw.
“We here feel we need the jurisdiction because we know and understand what the needs are,” said Morton reeve Bob McCallum.
McCallum said the bylaw is geared toward managing water, “not just draining every pothole.” The municipality wants people to understand that there can be repercussions on downstream landowners when water is drained.
“We want to be able to work with the farmers to manage water in such a way that no one’s going to get hurt out of it,” McCallum said.
The Morton municipality believes Giesbrecht’s ruling took away jurisdiction for land drainage from the province. Although he sees a need to work “side by side” with natural resources, McCallum wants the final say on licensing to be with the municipality.
“If this gets overturned, and they legislate something that gives jurisdiction back (to natural resources), so be it.”
