This archived statute consolidation is current to November 10, 1992 and includes changes enacted and in force by that date.

Water Act

[RSBC 1979] CHAPTER 429

Contents
Section
  1.  Interpretation
  2.  Vesting water in Crown
  3.  Application of Act to ground water
  4.  Rights acquired under licences
  5.  Rights subject to Act
  6.  Who may acquire licences
  7.  Approvals by comptroller or regional water manager
  8.  Procedure to acquire licences
  9.  Objections to applications and hearings
  10.  Powers of comptroller or regional water manager respecting applications
  11.  Issue of final licences
  12.  Precedence of licences on same stream
  13.  Transfer of licence or permit
  14.  Licence or permit as evidence
  15.  Amendment and substitution of licence or approval
  16.  Transfer of appurtenancy of licence
  17.  Apportionment of rights under licence
  18.  Rights and responsibilities under licence or approval
  19.  Licensee to keep records
  20.  Suspension and cancellation of rights and licences
  21.  Abandonment of rights under licence
  22.  Liability of owner for damage remains
  23.  Permits over Crown land
  24.  Licensee's right to expropriate land
  25.  Licensee's rights when owner refuses compensation
  26.  Owner to give notice before interfering with works
  27.  Entry on land in case of urgency
  28.  Repealed
  29.  Power to summon witnesses
  30.  Right of access to land and premises by authorized persons
  31.  Joint use of works may be ordered
  32.  Power to authorize extension of rights under licence
  33.  Appointment of water bailiffs
  34.  Powers of comptroller and regional water manager
  35.  Power of comptroller if disobeyed
  36.  Power to amend or revoke order
  37.  Powers of engineers and officers
  38.  Rights of appeal from comptroller and engineer
  39.  Repealed
  40.  Repealed
  41.  Offences
  42.  Right to use unrecorded water
  43.  Liability for loans made under former Acts
  44.  Reservation of water
  45.  Power to establish tariff of fees and rentals
  46.  Power to make regulations
  47.  Claims against improvement districts to be arbitrated
  48.  Protection of officers
  49.  Restriction on proceedings
  50.  Orders of Water Board orders of comptroller
  51.  Issue of new licence
  52.  Incorporation of water users' communities
  53.  Power of water users' community
  54.  Manager
  55.  Interests of members defined
  56.  Voting at meetings
  57.  Power of manager to assess members
  58.  Appeals from assessments
  59.  Assessments binding
  60.  Liability for assessments
  61.  Meetings of members
  62.  Dissolution of water users' community
  63.  Fixing tolls

Interpretation

1.  In this Act

"comptroller" means a person employed by the Crown and designated in writing by the minister as the Comptroller of Water Rights and includes any persons designated in writing by the minister as acting, deputy or assistant comptrollers;

"conditional licence" means a licence authorizing the construction of works or the diversion and use of water prior to the issue of a final licence;

"conservation purpose" means the use and storage of water or the construction of works in and about streams for the purpose of conserving fish or wildlife;

"conveying purpose" means the carriage of water for licensees;

"Crown land" means land the fee of which is in the Crown in right of the Province;

"development district" includes a district within the meaning of the Drainage, Ditch and Dyke Act, and every other drainage, dyking or development district incorporated prior to January 1, 1965 by or under a statute other than the Water Act;

"divert", or a word of similar import, means taking water from a stream, and includes causing water to leave the channel of a stream and making a change in or about the channel that permits water to leave it;

"domestic purpose" means the use of water for household requirements, sanitation and fire prevention, the watering of domestic animals and poultry and the irrigation of a garden not exceeding 1 012 m(2) adjoining and occupied with a dwelling house;

"engineer" means a professional engineer employed by the Crown and designated in writing by the comptroller as an engineer, and includes a regional water manager;

"final licence" means a licence that authorizes the diversion and use of water, and does not authorize the construction of additional works or an extension of the use of water;

"former Act" means any Act of the Province, passed before October 31, 1939, containing provisions respecting the diversion and use of water;

"ground water" means water below the surface of the ground;

"hydraulicking purpose" means the use of the water under head to move earth, sand, gravel or rock, except when the moving is done or proposed to be done in order to get mineral from it;

"improvement district" means, as the context may require, either the public corporate body or the tract of land incorporated under the Municipal Act and includes an improvement district constituted under a former Act;

"industrial purpose" means the use of water for a purpose other than the purposes elsewhere defined in this section;

"irrigation purpose" means the beneficial use of water on cultivated land and hay meadows to nourish crops;

"land improvement purpose" means the diversion or impounding of water to protect property, to facilitate the development of a park or the reclamation, drainage or other improvement of land or to carry out a project of a similar nature;

"licence" means a licence issued under this or a former Act;

"licensee" and "holder of a licence" mean an owner of any land, mine or undertaking with respect to which a licence is issued under this or a former Act;

"mine" includes a placer or mineral claim or land held or occupied under the mining laws of the Province for the purpose of winning a mineral from it, whether held in fee simple or by virtue of a record, lease, licence or application;

"mineral" includes a precious or base metal and coal;

"mineral trading purpose" means bottling, distributing, using and dealing in water so impregnated with foreign ingredient as to give it medicinal properties, or water of a temperature that gives it a commercial value;

"mining purpose" means the use of water for recovering mineral from the ground or from ore;

"municipality" includes a regional district incorporated under the Municipal Act;

"natural boundary" has the same meaning as in the Land Act;

"obligation" includes requirement, restriction, limitation, condition and duty;

"officer" means

(a) a person or class of persons employed by the Crown and designated in writing by the comptroller as an officer, or

(b) a person designated as a conservation officer under section 9 (1) of the Environment Management Act;

"order" includes a decision or direction, whether given in writing or otherwise;

"owner" means the person entitled to possession of any land, mine or undertaking, and includes a person who has a substantial interest in it;

"permit" means an authority to flood Crown land or to construct, maintain or operate works on it;

"person" includes a firm, association or syndicate;

"power purpose" means the use of water in the production of electricity or other power;

"regional water manager" means a person employed by the Crown and designated in writing by the minister as a regional water manager and includes a person designated in writing by the minister as an acting or assistant regional water manager;

"registrar" means the registrar under the Land Title Act for the land title district in which the land affected is situated;

"regulate" includes allow, commence, stop, limit, open, shut and prohibit;

"right" includes power, authority, benefit, privilege and remedy;

"river improvement purpose" means clearing and improving the bed, channel and banks of a stream to facilitate the driving and booming of timber;

"serve", and words of similar import, include deliver to or send to by registered mail;

"store", when used with reference to water, means collect, impound and conserve;

"storage" or "storage purpose" means the collection, impounding and conservation of water;

"stream" includes a natural watercourse or source of water supply, whether usually containing water or not, ground water, and a lake, river, creek, spring, ravine, swamp and gulch;

"toll" means a fee, charge, rate or rental fixed, demanded or charged by a municipality, improvement district or development district for a service rendered or made available to any extent by means of works for storing, conveying or distributing water, electricity, garbage or sewage, or for extinguishing fire, and includes a charge for the use or benefit of works constructed under authority of a licence for river improvement purpose or for a service rendered or made available by the holder of that licence;

"undertaking", in reference to an application or licence, means a project for the diversion, carriage, use and sale of water or power produced from water the use of which is referred to in the application or licence, and includes all land and other property acquired or to be acquired in connection with the project, and the general scheme for the acquisition, maintenance and operation of the works;

"unrecorded water" means water the right to the use of which is not held under a licence or under a special or private Act;

"water users' community" means any public corporate body incorporated under section 52, and includes a water users' community formed under a former Act;

"waterworks purpose" means the carriage or supply of water by a municipality, improvement district, development district or person for the use of the residents of a locality;

"works" means anything capable of or useful for diverting, storing, measuring, conserving, conveying, retarding, confining or using water, or for producing, measuring, transmitting or using electricity, or for collecting, conveying or disposing of sewage or garbage or for preventing or extinguishing fire, and includes access roads to any of them, and includes the placing of booms and piles in and the removal of obstructions from the banks and beds of streams.

Historical Note(s): RS1960-405-2; 1961-65-2; 1965-57-2; 1968-12-30; 1977-75-8; 1977-53-1; 1978-25-332,333; 1981-20-69, proclaimed effective September 1, 1981; 1987-43-103; 1989-40-209; 1992-26-1(part).

Vesting water in Crown

2.  The property in and the right to the use and flow of all the water at any time in a stream in the Province are for all purposes vested in the Crown in right of the Province, except only in so far as private rights have been established under licences issued or approvals given under this or a former Act. No right to divert or use water may be acquired by prescription.

Historical Note(s): RS1960-405-3; 1966-54-2.

Application of Act to ground water

3.  The Lieutenant Governor in Council may, by regulation, fix a day on which this Act shall commence to apply to ground water in a part of the Province he designates.

Historical Note(s): RS1960-405-4; 1983-10-20, effective October 26, 1983 (B.C. Reg. 393/83).

Rights acquired under licences

4.  A licence entitles its holder to

(a) divert and use beneficially for the purpose and during or within the time stipulated the quantity of water specified in the licence;

(b) store water;

(c) construct, maintain and operate the works authorized under the licence and necessary for the proper diversion, storage, carriage, distribution and use of the water or the power produced from it;

(d) alter or improve a stream or channel for any purpose; and

(e) construct fences, screens and fish or game guards across streams for the purpose of conserving fish or wildlife,

in a manner provided in the licence.

Historical Note(s): RS1960-405-5(1).

Rights subject to Act

5.  The exercise of every right held under a licence is subject always to this Act and regulations, the terms of the licence, the orders of the comptroller and the engineer and the rights of all licensees whose rights have precedence.

Historical Note(s): RS1960-405-5(2).

Who may acquire licences

6.  A licence for any one, 2 or 3 of the purposes defined in section 1 may be issued by the comptroller or the regional water manager to

(a) an owner of land or a mine;

(b) a holder of a certificate of convenience and necessity issued under the Public Utilities Act repealed by the Energy Act or under the Water Utility Act;

(c) a municipality, improvement district, water users' community or development district;

(d) the Crown as represented by a minister appointed by the Governor General or the Lieutenant Governor;

(e) a commission, board or person having charge of the administration of any land, mine or other property owned or controlled by a ministry, department, branch or other subdivision of the government of Canada or of the Province;

(f) the Greater Vancouver Water District, the Greater Victoria Water District or the Greater Nanaimo Water District or to any other water district incorporated by an Act of the Legislature; and

(g) the British Columbia Hydro and Power Authority.

Historical Note(s): RS1960-405-6; 1961-65-3; 1962-68-2; 1973-29-192; 1977-75-88; 1982-56-1.

Approvals by comptroller or regional water manager

7.  (1) The comptroller or the regional water manager may, without issuing a licence, approve the diversion or use, or both, of water on the conditions he considers advisable where

(a) non-recurrent use of water is required for a term not exceeding a period of 6 months;

(b) a municipality desires to exercise its powers, subject to the Water Act, under Division (3) of Part 13 of the Municipal Act;

(c) a public corporate body or a person desires to make changes in and about a stream;

(d) a minister of the Crown, either of Canada or the Province, desires to make changes in and about a stream;

but the water may only be used subject to the same provisions as if the approval were a licence.

(2) Notwithstanding that a licence has not been issued, a person is not prohibited from diverting or using water in accordance with an approval given under this section.

Historical Note(s): RS1960-405-7; 1962-68-3; 1974-87-40; 1981-20-70, proclaimed effective September 1, 1981.

Procedure to acquire licences

8.  (1) Every person who applies for a licence shall comply with the directions of the comptroller or the regional water manager with respect to filing the application, giving notice of it by posting, service or publication and paying the prescribed fees, and shall furnish the plans, specifications and other information the comptroller or the regional water manager requires.

(2) [Repealed 1987-43-104.]

Historical Note(s): RS1960-405-8; 1962-68-4; 1965-57-3; B.C. Reg. 537/79; 1980-29-13; 1981-20-71, proclaimed effective September 1, 1981; 1982-56-1; 1987-43-104; 1989-25-3.

Objections to applications and hearings

9.  (1) A licensee, riparian owner or applicant for a licence who considers that his rights would be prejudiced by the granting of an application for a licence may, within the time prescribed in the regulations, file an objection to the granting of the application.

(2) The comptroller or the regional water manager has authority to decide whether or not the objection warrants a hearing, and he shall notify the objector of his decision.

(3) If the comptroller or the regional water manager decides to hold a hearing, the applicant and objectors are entitled to be notified, to be heard and to be notified of his decision following the hearing.

Historical Note(s): RS1960-405-9; B.C. Reg. 92/79; 1981-20-72, proclaimed effective September 1, 1981; 1982-56-1; 1982-72-25, proclaimed effective January 28, 1983; 1987-43-105.

Powers of comptroller or regional water manager respecting applications

10.  With respect to an application, whether objections to it are filed or not, the comptroller or the regional water manager may

(a) refuse the application;

(b) amend the application in any respect;

(c) grant the application in whole or in part;

(d) require additional plans or other information;

(e) determine the precedence and appurtenancy of the licence to be issued under the application;

(f) require the applicant to give security for the purposes and in the amount and form the comptroller or the regional water manager considers in the public interest; and

(g) issue to the applicant one or more conditional or final licences on the terms the comptroller or the regional water manager considers proper.

Historical Note(s): RS1960-405-10; 1982-56-1.

Issue of final licences

11.  When the time for completing the works authorized under a conditional licence expires or the licensee completes the works, the comptroller or the regional water manager may issue to the licensee a final licence authorizing the diversion and use of the quantity of water that the comptroller or the regional water manager finds to have been used beneficially for the purpose authorized under the conditional licence. On the issue of a final licence the conditional licence is of no further effect.

Historical Note(s): RS1960-405-11; 1982-56-1.

Precedence of licences on same stream

12.  (1) Except as otherwise provided in subsections (2) and (3), the respective rights exercisable under 2 licences authorizing the diversion of water from the same stream have precedence in law according to the respective priorities of the dates from which the licences take precedence as set out in them.

(2) The respective rights exercisable under 2 licences taking precedence from the same date have precedence in law according to the ranking of the respective purposes for which water is authorized to be used under the licences respectively, and the ranking of the several purposes for which water may be used under licences are, from highest rank to lowest rank: domestic, waterworks, mineral trading, irrigation, mining, industrial, power, hydraulicking, storage, conservation, conveying and land improvement purposes.

(3) The rights exercisable under 2 licences taking precedence from the same date and authorizing the diversion of water from the same stream for the same purpose have equal precedence in law.

Historical Note(s): RS1960-405-12; 1987-43-106.

Transfer of licence or permit

13.  Every licence and permit that is made appurtenant to any land, mine or undertaking shall pass with conveyance or other disposition of it.

Historical Note(s): RS1960-405-13.

Licence or permit as evidence

14.  The production of a licence, permit or approval, or bylaw of an improvement district, or a copy of any of them certified to be a copy by the comptroller or other person authorized by the minister to certify copies, is, without further proof, evidence in a court of the matters and things set out in the licence, permit, approval or bylaw.

Historical Note(s): RS1960-405-14.

Amendment and substitution of licence or approval

15.  (1) On notice to all persons whose rights would be affected, and after consideration of any objections filed and after notifying the objectors of his decision, the comptroller or the regional water manager may amend a licence to

(a) extend the time fixed for commencing construction of the works;

(b) extend the time fixed for completion of the works;

(c) extend the time fixed for making beneficial use of the water;

(d) authorize additional or other works than those previously authorized;

(e) correct an error in the licence;

(f) remove a provision of the licence that is inconsistent with this Act;

(g) authorize the use of water for some purpose other than that specified in the licence;

(h) extend the term of the licence; or

(i) increase or reduce the quantity of water authorized to be diverted or stored where it appears to have been erroneously estimated.

(2) [Repealed 1987-43-107.]

(3) Where the comptroller or the regional water manager considers that an amendment to a licence as set out above would substantially change that licence, he may issue in substitution for it another licence on the conditions he considers advisable.

(4) In cases not coming within subsection (3) the comptroller or the regional water manager may, with the written consent of the licensee, issue in substitution for a licence a conditional or final licence on the conditions he considers advisable.

(5) The comptroller or a regional water manager may amend an approval granted under section 7 or 7.1 and an engineer may amend an approval granted under section 7.1, on the conditions he or she considers advisable.

(6) If the amendment to the approval would substantially change that approval, the comptroller or regional water manager acting under section 7 or 7.1, or the engineer acting under section 7.1, may issue in substitution for it another approval on the conditions he or she considers advisable.

Historical Note(s): RS1960-405-15; 1962-68-5; 1965-57-4; B.C. Reg. 92/79; 1981-20-73, proclaimed effective September 1, 1981; 1982-56-1; 1987-43-107; 1992-26-4.

Transfer of appurtenancy of licence

16.  On the application of a licensee and compliance by the licensee and the proposed transferee with the comptroller's or the regional water manager's directions as to giving notice, the comptroller or the regional water manager may, on the terms he considers proper, transfer, in whole or in part, the rights and obligations granted and imposed under a licence from the licensee to the proposed transferee, and may issue a new licence to the transferee or transferor, or both, and determine the appurtenancy of it.

Historical Note(s): RS1960-405-16; 1982-56-1,2.

Apportionment of rights under licence

17.  (1) If satisfied that no licensee's rights will be injuriously affected, the comptroller or the regional water manager, on giving notice of his intention to do so to all persons interested, may apportion the rights and obligations granted and imposed under a licence among the owners of the several parcels comprising the land to which the licence is appurtenant.

(2) The comptroller or the regional manager may issue, on the conditions the comptroller or regional water manager considers advisable, one or more new licences in substitution for a licence the rights and obligations under which are apportioned under subsection (1).

Historical Note(s): RS1960-405-17; 1989-25-4.

Rights and responsibilities under licence or approval

18.  (1) Every licensee and person who has obtained approval under section 7 shall exercise reasonable care to avoid damaging land, works, trees or other property, and shall make full compensation to the owners for damage or loss resulting from the construction, maintenance, use or operation of the licensee's works.

(2) Subject to subsection (1), every holder of a licence for power purpose, waterworks purpose or irrigation purpose may fell and remove any tree and remove any rock or other thing that endangers his works.

Historical Note(s): RS1960-405-18.

Licensee to keep records

19.  Every licensee and person who has obtained approval under section 7 shall keep the records respecting the diversion and use of water that the comptroller directs, and shall produce them for the comptroller's inspection when required.

Historical Note(s): RS1960-405-19.

Suspension and cancellation of rights and licences

20.  (1) In this section "licence" includes a permit or an approval under section 7, and "licensee" includes a holder of a permit and a person who has obtained approval under section 7.

(2) The rights of every licensee under a licence are subject to suspension for any time by the comptroller or a regional water manager, and every licence and all rights under it are subject to cancellation in whole or in part by the comptroller or a regional water manager for

(a) failure by the licensee for 3 successive years to make beneficial use of the water for the purpose and in the manner authorized under the licence;

(b) failure by the licensee within the time specified to construct the works authorized under the licence;

(c) failure by the licensee for 3 years to pay the rentals due the Crown in respect of the licence;

(d) failure by the licensee for 6 months to pay any water bailiff's fees payable by him;

(e) the licensee's failure to comply with this Act or the regulations;

(f) the licensee's failure to comply with a term or condition of the licence;

(g) the licensee's failure to comply with an order of the comptroller or a regional water manager or an engineer;

(h) material misstatement or misrepresentation in the application for the licence or in the information furnished the comptroller or a regional water manager with respect to it; or

(i) cancellation or other termination of the licensee's title to the land or mine on which the water is to be used, where the cancellation or termination results from the operation of a statute or the exercise of a statutory authority.

(3) Three days' notice of the comptroller's or regional water manager's proposal to suspend rights under a licence shall be given to the person exercising the rights or to the person occupying the land to which the licence is appurtenant, and where the comptroller or the regional water manager considers the matter urgent the rights may be suspended without a hearing.

(4) In the case of a licence appurtenant to land, notice of the proposal to cancel the licence shall be sent by registered mail to every registered owner of the land and to every person who has notified the comptroller or a regional water manager that he has an interest in it, but where the land comprises more than 20 parcels notice of the proposal to cancel the licence may be given by registered mail to every person who has notified the comptroller or a regional water manager that he has an interest in the land and by publication in a local newspaper of not less than one insertion each week for 4 consecutive weeks.

(5) In the case of a licence that is not appurtenant to land, notice of the proposal to cancel the licence shall be sent by registered mail to the person shown in the records of the Ministry of Environment as the holder of the licence and to every person who has notified the comptroller or a regional water manager that he has an interest in the licence.

(6) If within 60 days after mailing of the notice or the last publication of it an objection to the proposed cancellation is filed with the comptroller or a regional water manager by a person claiming an interest in the licence, the comptroller or a regional water manager shall, on the hearing he considers suitable, determine whether the alleged grounds for cancellation are substantiated and shall make the order he considers proper. Where the engineer reports in writing to the comptroller or a regional water manager that he examined the works authorized under the licence and found them unfit or unsuitable for use or that he examined the place of use referred to in the licence and found no indication of recent beneficial use of water, the onus lies on the licensee to prove that he has complied with this Act, the regulations and the licence.

(7) The rights of the different licensees under a licence are separable, and fulfilment by a licensee of his obligations as a licensee shall not prevent or delay the suspension or cancellation of the rights of another licensee.

(8) Every person in possession of a copy of a licence that has been cancelled shall deliver it to the comptroller or a regional water manager without delay.

(9) When a licence has been cancelled in part, the comptroller or a regional water manager may issue to the licensee

(a) a conditional licence on the conditions he considers advisable; or

(b) a new final licence;

but the licensee shall not thereby obtain or retain any right, power or privilege that has been the subject of the cancellation.

Historical Note(s): RS1960-405-20; 1977-75-88; 1981-20-74, proclaimed effective September 1, 1981; 1992-26-7(part).

Abandonment of rights under licence

21.  (1) A registered owner of land, an owner of a mine or undertaking, a minister of the Crown or a board, corporation or person having control of any land, mine or undertaking to which a licence is appurtenant may, by notice in writing to the comptroller, abandon all or part of the rights held under the licence.

(2) If the land, mine or undertaking to which the licence is appurtenant is mortgaged, and a copy of the mortgage, or particulars of it, is filed with the comptroller, the abandonment is not effective without the written consent of the mortgagee.

(3) When a part of the rights held under a licence has been abandoned, the comptroller may issue to the licensee

(a) a conditional licence on the conditions he considers advisable; or

(b) a new final licence;

but the licensee shall not thereby obtain or retain a right, power or privilege that has been the subject of the abandonment.

Historical Note(s): RS1960-405-21.

Liability of owner for damage remains

22.  The abandonment, suspension, termination or cancellation of all or part of the rights held under a licence or approval does not relieve the owner of the land, mine or undertaking to which the licence or approval is or was appurtenant of liability for damage resulting from the works constructed, operated or maintained by the owner, or from a defect, insufficiency or failure of the works.

Historical Note(s): RS1960-405-22.

Permits over Crown land

23.  On compliance with the regulations by a licensee or a person to whom approval was given under section 7, the minister may issue to the licensee or person one or more permits authorizing the flooding of Crown land or the construction, maintenance or operation on the land of works authorized under a licence or approval. A person shall not cause Crown land to be flooded or construct, maintain or operate works on it unless he holds a permit authorizing that flooding, construction, maintenance or operation.

Historical Note(s): RS1960-405-23; 1962-68-6.

Licensee's right to expropriate land

24.  (1) In this section and in sections 25 to 27 "land" includes an estate or interest in or easement over land.

(2) Every licensee has the right to expropriate any land reasonably required for the construction, maintenance, improvement or operation of works authorized under his licence, and the holder of a licence that authorizes the diversion of water for domestic purpose or waterworks purpose has the right to expropriate, in addition, any land the control of which by the licensee would help to prevent pollution of the water authorized to be diverted, and, with the consent of the Lieutenant Governor in Council the holder of a licence that authorizes the construction of a dam has the right to expropriate, in addition, any land that would be flooded if the dam were constructed and utilized to the maximum height authorized. The owner of land so expropriated shall be compensated for it by the licensee, and the procedure to be followed in expropriating land and the method of determining the compensation shall be as prescribed in the regulations.

(3) Where expropriation proceedings relate to land on or in which there are works authorized under a licence no owner or other person shall interfere with the works or prevent the licensee from maintaining, operating, using or improving them so long as the licensee diligently prosecutes the expropriation proceedings.

Historical Note(s): RS1960-405-24.

Licensee's rights when owner refuses compensation

25.  When an award of compensation is made and the amount tendered to the owner and he fails to execute and deliver to the licensee the required conveyance or other instrument, the licensee is then constituted the attorney of the owner for the purpose of executing the conveyance or instrument on his behalf, and on the licensee paying the amount of compensation to the comptroller, or so much of it as is payable at the time, and filing with the registrar the executed conveyance or instrument, a copy of the award and an affidavit proving the payment of the compensation to the comptroller and the failure of the owner to execute the conveyance or instrument, and paying to the registrar the proper fees under the Land Title Act, the registrar shall register the licensee as owner of the land affected or holder of a charge on it as indicated in the award.

Historical Note(s): RS1960-405-25; 1978-25-332.

Owner to give notice before interfering with works

26.  Notwithstanding a right or title acquired or held under a statute or indefeasible or absolute title, every owner of land or other person who proposes to alter, move, fill in or otherwise interfere with works authorized under a licence shall, before doing so, give the licensee 6 months' notice in writing of the act or thing proposed to be done.

Historical Note(s): RS1960-405-26; 1982-60-121, proclaimed effective February 3, 1983.

Entry on land in case of urgency

27.  In a case where the comptroller considers that a delay in commencing the construction of authorized works would not be in the public interest or would cause a hardship on the licensee, the comptroller may authorize the licensee to enter on, occupy and use any land for constructing the works on the licensee depositing with the comptroller security in the form and amount the comptroller considers adequate to indemnify the owner for any damage he might sustain by reason of the construction. On exercising that authority the licensee shall promptly take steps to expropriate the land required and shall comply with the regulations relating to expropriation.

Historical Note(s): RS1960-405-27.

Repealed

28.  [Repealed 1992-26-9.]

Power to summon witnesses

29.  Where it appears to the comptroller, deputy comptroller or engineer that the proper determination of a matter within his jurisdiction necessitates a public or other inquiry, he may hold that inquiry, and for that purpose has all the powers and jurisdiction of a justice under the Offence Act.

Historical Note(s): RS1960-405-29; 1985-13-15, effective April 22, 1985 (B.C. Reg. 106/85).

Right of access to land and premises by authorized persons

30.  (1) The comptroller, deputy comptroller and every engineer, officer and water bailiff, and every officer and employee of a municipality, improvement district, development district, water users' community or holder of a licence authorizing the carriage or supply of water or electricity to the public has, so far as is necessary in the discharge of his duties or exercise of his rights, at all times a free right of ingress and egress on, in and over any land and premises.

(2) Subsection (1) applies also to a person working under the direction of the comptroller, the regional water manager or an engineer.

Historical Note(s): RS1960-405-30; 1985-13-16, effective April 22, 1985 (B.C. Reg. 106/85); 1989-25-5; 1992-26-10.

Joint use of works may be ordered

31.  Where satisfied that the joint use of works would conserve water or avoid duplication of works, the comptroller may order the joint use and fix its terms.

Historical Note(s): RS1960-405-31.

Power to authorize extension of rights under licence

32.  Where the comptroller considers that no other supply is available at reasonable cost he may authorize a licensee to use or supply water for use for other purposes or on other land than specified in the licence and may fix the terms on which the water is to be used or supplied. That authority is subject to any jurisdiction in that respect of a commission, board, body or member of the Executive Council designated by the Lieutenant Governor in Council.

Historical Note(s): RS1960-405-32; 1973-29-190.

Appointment of water bailiffs

33.  (1) Where the comptroller considers that the engineer is unable, in person, to regulate the diversion and use of water from a stream, the comptroller may appoint one or more water bailiffs for that purpose. Every water bailiff has authority, subject to the supervision of the engineer, to enter on any land, to regulate and control the diversion and use of water from the streams with respect to which his appointment relates and to regulate and control all diversion works on them; and, so far as is necessary for or useful in enforcing his orders, he has all the powers of a police constable under the Police Act.

(2) Every water bailiff shall be compensated by the persons using water from the streams affected in the amounts and at the times the engineer directs, and the water bailiff may stop the diversion and use of water by a person who fails to pay that amount as directed.

(3) A sum payable to a water bailiff may be recovered as a debt due to the Crown by action at the suit of the Attorney General.

Historical Note(s): RS1960-405-33.

Powers of comptroller and regional water manager

34.  (1) In addition to the other powers given under this Act and the regulations, the comptroller may at any time do any act or thing that a regional water manager, engineer or officer is empowered to do under this Act or the regulations.

(2) In addition to the other powers given under this Act and the regulations, a regional water manager may at any time do any act or thing that an engineer or officer is empowered to do under this Act or the regulations.

Historical Note(s): 1992-26-11.

Power of comptroller if disobeyed

35.  (1) When a person to whom an order of the comptroller or engineer is directed fails to do the things ordered, the comptroller may authorize another person to do those things, and any expense incurred in the exercise of that authorization may be recovered in any court from the person to whom the order was directed as money paid for and at the request of the last mentioned person, and the comptroller's certificate as to the amount of the expense is conclusive evidence of it.

(2) When the comptroller considers that it is in the public interest to remove any works, he may authorize that they be removed at the expense of the Crown, and money required shall be paid out of the consolidated revenue fund; and the Crown may collect money expended under this subsection as if the works had been removed under subsection (1).

(3) A person authorized by the comptroller under this section may enter onto land at any reasonable time and may take with him or her any other persons or equipment as may be necessary for the purpose of doing the things that he or she is authorized to do.

Historical Note(s): RS1960-405-35; 1992-26-12.

Power to amend or revoke order

36.  The comptroller may at any time on notice amend or revoke any order of the comptroller, the regional water manager, the Water Board or the Board of Investigation.

Historical Note(s): RS1960-405-36; 1987-43-108.

Powers of engineers and officers

37.  (1) In addition to all other powers given under this Act and the regulations, an engineer may

(a) inspect, regulate, close or lock any works,

(b) inspect and regulate the construction of any works,

(c) determine what constitutes beneficial use of water,

(d) order the repair, alteration, improvement, removal of or addition to any works,

(e) order the restoration or remediation of any changes in and about a stream,

(f) order the construction, installation and maintenance of any measuring device,

(g) regulate, in person or through an officer or a water bailiff, and make orders with respect to the diversion, rate of diversion, storage, carriage, distribution and use of water,

(h) determine the allowances of water to offset evaporation, seepage and other losses,

(i) order the release of stored or impounded water that the engineer considers a danger to life and property,

(j) order a person to cease putting or not to put any sawdust, timber, tailings, gravel, refuse, carcass or other thing or substance into a stream, or

(k) order a person to remove from a stream any substance or thing that he or she has put or permitted to get into the stream.

(2) An order under subsection (1) may be made subject to any conditions the engineer considers advisable.

(3) Subject to the direction of an engineer, every officer may

(a) regulate, close or lock any works,

(b) regulate the construction of any works, or

(c) regulate, in person or through a water bailiff, the diversion, rate of diversion, storage, carriage, distribution and use of water.

(4) An officer may inspect works, the construction of works, an existing or proposed water use and any activity or changes in and about a stream and any records related to the works, construction, use, activity or changes.

Historical Note(s): 1992-26-13.

Rights of appeal from comptroller and engineer

38.  (1) In this section "appeal tribunal" means , in relation to an appeal,

(a) the Environmental Appeal Board established under the Environment Management Act, or

(b) the comptroller

to whom the appeal is taken.

(1.1) An appeal lies

(a) to the Environmental Appeal Board from every order of the comptroller, and

(b) to the comptroller from every order of the engineer.

(2) Every appeal from an order of the comptroller or of the engineer shall be taken within 30 days from the date of the order.

(3) The person appealing from an order shall give notice of the appeal as directed by the officer from whose order the appeal is taken.

(4) Before hearing an appeal the appeal tribunal may require the appellant to deposit with the appeal tribunal a sum of money the appeal tribunal considers sufficient to cover the probable expenses of the appeal tribunal and the respondent in connection with the appeal.

(4.1) In an appeal from an order of an engineer, the comptroller may give the engineer full party status.

(4.2) An engineer who is given full party status under subsection (4.1) may

(a) be represented by counsel,

(b) present evidence,

(c) where there is an oral hearing, ask questions, and

(d) make submissions as to facts, law and jurisdiction.

(4.3) A person who gives oral evidence may be questioned by the comptroller or the parties to the appeal.

(5) The appeal tribunal may, on an appeal, determine the matters involved and make any order that to the tribunal appears just, and may dispose of money deposited with it by the appellant.

(6) An appeal shall not act as a stay of execution.

Historical Note(s): RS1960-405-38; 1961-65-4; 1962-68-7; 1981-14-18, proclaimed effective January 7, 1982, see transitional provision 1981-14-19, proclaimed effective January 7, 1982; 1986-15-35, effective August 26, 1986 (B.C. Reg. 194/86); 1989-25-6; 1992-26-14.

Repealed

39.  [Repealed 1992-26-15.]

Repealed

40.  [Repealed 1987-43-109.]

Offences

41.  (1) A person commits an offence who

(a) wilfully hinders, interrupts or causes or procures to be hindered or interrupted, a licensee or his managers, contractors, servants, agents, workers or any of them, in the lawful exercise of a right granted under this Act or the regulations or under a licence or approval;

(b) without lawful authority, wilfully destroys, damages or interferes with the works of a licensee, a person who has obtained an approval or a person who has constructed the works in accordance with the regulations;

(c) opens or closes without authority a hydrant used for fire protection, or obstructs free access to a hydrant stop cock or hydrant accessory, or damages a hydrant stop cock or hydrant accessory;

(d) lays or causes to be laid a pipe, or constructs or causes to be constructed a ditch or other conduit to connect with the works of a licensee without authority from the comptroller, engineer or the licensee;

(e) molests, interferes with, delays, obstructs or otherwise impedes the comptroller or an engineer, water bailiff or other officer in the discharge or performance of a duty or the exercise of an authority under this Act;

(f) destroys, injures or tampers with

(i)  works; or

(ii)  a gauge, weir, measuring device, structure, appliance, cable, boat, instrument or tool

belonging to or placed in position by an applicant, licensee or official of Canada or of the Province;

(g) places, maintains or makes use of an obstruction in the channel of a stream without authority;

(h) engages in the business of operating works to carry water for others without holding a licence or other authority issued in that behalf under this or a former Act;

(i) wilfully interferes with a headgate, ditch or controlling works that an engineer, officer or water bailiff has regulated;

(i.1) wilfully destroys a notice posted by an applicant, engineer, officer or water bailiff;

(j) constructs, maintains, operates or uses works without authority;

(k) puts into a stream any sawdust, timber, tailings, gravel, refuse, carcass or other thing or substance after having been ordered by the engineer or water recorder not to do so;

(l) diverts water from a stream without authority;

(m) diverts more water from a stream than he is lawfully entitled to divert;

(n) diverts water that he does not use beneficially;

(o) uses water when he is not lawfully entitled to do so;

(p) uses or permits to be used on his land water during a time he is ordered to cease the diversion of water or after his works have been closed or ordered closed;

(q) wilfully contravenes this Act or an order of the comptroller or engineer, or neglects to do an act or thing required to be done by him under this Act or under an order of the comptroller or engineer;

(r) [Not in force.]

(s) breaches a term or condition of a licence, an approval or the regulations.

(2) A person who commits an offence under this section is liable on conviction

(a) to a fine of not more than $200 000, and

(b) where the offence is a continuing one, to a fine of not more than $200 000 for each day the offence is continued

or to imprisonment not exceeding 12 months, or to both a fine and imprisonment.

(3) Where a corporation commits an offence under this Act, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence commits the offence notwithstanding that the corporation is convicted.

(4) An information for or in respect of any offence against this Act or the regulations shall be laid before the expiration of one year from the time of the happening of the offence.

Historical Note(s): RS1960-405-41; 1962-68-9; 1976-56-1; 1992-26-16(part).

Right to use unrecorded water

42.  (1) It is not an offence for a person to divert water from a stream for extinguishing a fire, but any flow so diverted shall be promptly restored to its original channel when the fire is extinguished.

(2) It is not an offence for a person to divert unrecorded water for domestic purpose or for prospecting for mineral, but in a prosecution under this Act the person diverting the water must prove that the water is unrecorded.

Historical Note(s): RS1960-405-42.

Liability for loans made under former Acts

43.  (1) Every sum of money expended under authority of a former Act for the acquisition or construction of works and unpaid at the date of this enactment constitutes a debt due to the Crown in right of the Province from the municipality, improvement district, development district or person owning or operating the works in respect of which the money was expended, and every such sum is a first charge on each and all of the works and on each and all of the revenues and assets of the municipality, improvement district or development district in priority to all other charges, and it does not require registration to preserve it.

(2) The Lieutenant Governor in Council may, at any time, amend the terms of repayment of such a debt, alter the rate of interest payable on it, reduce its amount, accept the reduced amount in full payment and release any charge filed in a land title office with respect to any money so expended.

Historical Note(s): RS1960-405-43; 1978-25-334.

Reservation of water

44.  (1) Where it appears to the Lieutenant Governor in Council advisable, in order to enable a person to investigate the suitability of a stream for any purpose, or in order to make provision for a water supply for a waterworks, irrigation or power system or project, or for the use of the Crown for any purpose, he may by order in council reserve all or part of the unrecorded water of the stream from being taken or used or acquired under this Act.

(2) A notice signed by the minister giving particulars of the reservation shall be published in the Gazette and the reservation shall be registered by the comptroller.

(3) Every reservation made under this section applies to water which by reason of the abandonment or cancellation of a licence becomes unrecorded water during the existence of the reservation.

(4) The Lieutenant Governor in Council may in the order making the reservation or in a subsequent order provide that the water reserved may, notwithstanding the reservation, be acquired for the purpose for which it is reserved, or may be acquired for other purposes under licences subject to the reservation.

(5) The Lieutenant Governor in Council may at any time cancel a reservation of unrecorded water, and notice of the cancellation, giving the date on which it is to be effective, which date shall not be earlier than one month after the date of publication of the notice of the cancellation in the Gazette, shall be published in the Gazette, and within 30 days of the publication of the notice of cancellation in the Gazette shall be published in a newspaper published in the water district in which the stream is located, and if there is no newspaper so published then in a newspaper circulating in that water district. Applications for the water reserved may be made during the publication of the notice of cancellation in the Gazette, but no application shall be given a priority earlier than the date on which the cancellation becomes effective.

(6) Licences may be issued authorizing the diversion and use of water for domestic purpose or land improvement purpose from a stream to which a reservation applies.

(7) An approval under section 7 may be issued authorizing the use of water for any purpose from a stream to which a reservation applies.

Historical Note(s): RS1960-405-45; 1962-68-10; 1981-20-77, proclaimed effective September 1, 1981; 1986-15-36, effective August 26, 1986 (B.C. Reg. 194/86).

Power to establish tariff of fees and rentals

45.  (1) The Lieutenant Governor in Council may, by regulation, establish a tariff of the fees, rentals and charges payable in respect of applications, petitions, claims, complaints, proceedings, licences, approvals, permits and other things filed, applied for, taken or issued under this or any former Act, and in respect of water diverted or used from a stream, whether diverted under authority of a licence or under a special or private Act or without authority, and every applicant, petitioner, claimant, complainant and other person who files an application, petition, claim or complaint, or takes a proceeding under this Act, and every person holding a licence, approval or permit, and every person who diverts or uses water from a stream is liable to the Crown for the fees, rentals and charges in respect of the application, petition, claim, complaint, proceeding, licence, approval, permit, thing or water.

(2) The fees, rentals and charges shall be paid to the comptroller and may be recovered by him by suit in a court of competent jurisdiction.

(3) The tariff may fix the times of payment of fees, rentals and charges and make them subject to the imposition of interest at a prescribed rate and specified percentage additions on or from specified dates, and a tariff or part of it may be made retrospective to the extent of making it applicable from the beginning of the year in which it is established.

(4) The payment by a person or the acceptance by the comptroller of any rental in respect of a licence, approval or permit shall not prevent or delay the cancellation of the licence, approval or permit on any ground except failure to pay rentals.

Historical Note(s): RS1960-405-46; 1981-20-78, proclaimed effective October 14, 1982; 1983-10-24, effective October 26, 1983 (B.C. Reg. 393/83).

Power to make regulations

46.  The Lieutenant Governor in Council may make regulations, and, without restricting the generality of the foregoing, he may make regulations in respect of

(a) the division of the Province into water districts;

(b) the issue of permits authorizing the occupation of Crown land and their terms;

(c) the procedure to be followed in expropriating land and easements, the method of determining the compensation to be paid for it and the powers and duties of arbitrators or the Expropriation Compensation Board with respect to it;

(d) the powers, duties and jurisdiction of officers administering this Act; and

(e) the use of a stream for floating timber and the construction, maintenance, operation, alteration and removal of booms and other installations in the stream, and the duties and obligations of persons who float timber in a stream with respect to the segregation and sorting of the timber.

Historical Note(s): RS1960-405-47; 1987-23-127, effective December 24, 1987 (B.C. Reg. 451/87).

Claims against improvement districts to be arbitrated

47.  Every claim against an improvement district arising out of the construction or maintenance of a dyke or out of the diversion of water for the reclamation or drainage of land in an improvement district shall be determined by arbitration under the Commercial Arbitration Act, and no action in respect of the claim may be brought in a court of the Province. With the consent of the Attorney General, an appeal from an award made on arbitration lies to the Court of Appeal.

Historical Note(s): RS1960-405-49; 1982-7-114, proclaimed effective September 7, 1982; 1986-3-53, effective July 4, 1986 (B.C. Reg. 148/86).

Protection of officers

48.  An action may not be brought against the comptroller, deputy comptroller or a registrar, engineer, officer, water recorder, water bailiff, arbitrator, receiver, trustee, secretary, assessor or collector for anything done or left undone by him in good faith in the performance or intended performance of an authority conferred or duty imposed under this Act or the regulations.

Historical Note(s): RS1960-405-50; 1992-26-18.

Restriction on proceedings

49.  Except as otherwise provided in this Act, a hearing, investigation, proceeding or order of the Lieutenant Governor in Council, comptroller, water recorder or engineer shall not be questioned, reviewed or restrained by injunction, prohibition or other process or proceeding in any court or be removed by certiorari or otherwise into any court, save for excess or want of jurisdiction.

Historical Note(s): RS1960-405-51; 1962-68-11.

Orders of Water Board orders of comptroller

50.  (1) Every order made by the Board of Investigation or the Water Board and in effect immediately prior to the enactment of this Act shall be deemed an order of the comptroller and is subject to amendment and rescission by him.

(2) Every reference to the Board of Investigation or the Water Board in any other Act or in the letters patent of an improvement district or in a document relating to any licence, water or works shall be deemed a reference to the comptroller.

Historical Note(s): RS1960-405-52.

Issue of new licence

51.  On a licence being acquired by an improvement district or municipality under section 850 of the Municipal Act, the comptroller may issue in its place a new licence of similar precedence but authorizing the diversion and use of or storage of water for any purpose required by the municipality or improvement district.

Historical Note(s): RS1960-405-74(2).

Incorporation of water users' communities

52.  The comptroller may at any time issue to a group of 6 or more licensees a certificate of incorporation incorporating them into a water users' community with the name he considers advisable.

Historical Note(s): RS1960-405-76.

Power of water users' community

53.  Every water users' community is a public corporate body and may acquire, hold and control property and licences, acquire, construct, hold, maintain, improve, replace and operate works, and levy assessments on its members and enforce payment of those assessments by suit in a court of competent jurisdiction. It has the exclusive control and operation of the works constructed or used under the licences mentioned in its certificate of incorporation, and may refuse the use or benefit of those works to a member in default in paying an assessment or complying with a rule of the manager.

Historical Note(s): RS1960-405-77; 1983-10-21, effective October 26, 1983 (B.C. Reg. 393/83).

Manager

54.  (1) The business of every water users' community shall be conducted by a manager (which includes a committee of management) who shall, so far as is practicable, carry out the directions set out in resolutions passed at general meetings of the water users' community.

(2) The first manager shall be appointed by the comptroller, all subsequent managers shall be chosen by the members of the water users' community, and any manager may be removed at any time at a meeting called for that purpose.

Historical Note(s): RS1960-405-78.

Interests of members defined

55.  (1) The respective interests of the members of a water users' community shall, unless altered as provided in subsection (2), be proportionate to the respective maximum quantities of water the members would be entitled to divert and use under the licences referred to in the certificate of incorporation if each member were making the greatest possible use of the rights granted under those licences.

(2) The members of a water users' community at any time at a general meeting, on the vote of a majority in interest as shown by the last confirmed assessment roll of the water users' community, or if no assessment roll has been confirmed, then as ascertained on the basis set out in subsection (1), may determine that thereafter the interest of each member shall be proportioned to

(a) the area of the member's land irrigated by means of the works operated by the water users' community; or

(b) the amount of water delivered to the member's land for domestic or waterworks purposes,

or both.

Historical Note(s): RS1960-405-79.

Voting at meetings

56.  All matters to be determined at a meeting of a water users' community shall be determined by the majority in interest of the members voting on them.

Historical Note(s): RS1960-405-80.

Power of manager to assess members

57.  (1) The manager of a water users' community may prepare an assessment roll showing the sums of money estimated to be required by the water users' community for acquisition, construction, replacement and maintenance, repair and operation of works, and to pay the debts of the water users' community and showing the sum assessed against each of the members of the water users' community, which sum shall be proportionate to the member's interest in the water users' community.

(2) The assessment roll shall set out the time and place for payment of the assessments.

(3) The manager shall deliver or send by registered mail to each member a copy of the assessment roll, or he shall post it up in a conspicuous public place and send an assessment notice to each member showing the amount assessed against the member and stating where the assessment roll is posted up.

(4) A copy of the assessment roll shall also be sent to the comptroller, together with proof of compliance with the requirements of this section.

Historical Note(s): RS1960-405-81.

Appeals from assessments

58.  A member may appeal from the assessment made against him by filing with the comptroller, within 14 days after the mailing of the copy of the assessment roll or the assessment notice, as the case may be, a statement showing the grounds of his appeal, and the comptroller after the investigation he deems necessary may confirm the assessment roll or order its amendment. Where no appeal from any assessment made in an assessment roll is taken the comptroller may confirm the assessment roll.

Historical Note(s): RS1960-405-82.

Assessments binding

59.  Every assessment roll confirmed under section 58 is binding on all persons affected by it, and every sum payable by a member under it shall be deemed in arrears 30 days after the date of payment specified, and shall after that bear interest at a prescribed rate.

Historical Note(s): RS1960-405-83; 1981-20-79, proclaimed effective October 14, 1982.

Liability for assessments

60.  (1) Every member of a water users' community is liable for a part of the debts of the water users' community proportionate to his interest in the water users' community. On disposing of the land to which is appurtenant the licence on which his membership is based and notifying the manager, a member may limit his liability for the debts of the water users' community to those incurred before the notice was given.

(2) Every purchaser of land to which water is conveyed through works controlled by a water users' community is liable for the assessments made and the debts of the water users' community incurred after his purchase of the land to the same extent as an original member, unless and until he notifies the manager that he does not wish to be a member of the water users' community.

Historical Note(s): RS1960-405-84.

Meetings of members

61.  Any 3 members may at any time call a general meeting of the water users' community on giving 2 weeks' notice to all members who reside on land to which water is conveyed by means of the works controlled by the water users' community.

Historical Note(s): RS1960-405-85.

Dissolution of water users' community

62.  (1) The comptroller may at any time amend the certificate of incorporation of a water users' community in any respect or may recall the certificate and issue another in its place and, unless expressly provided in the amending or new certificate, the amendment, recall or reissue shall not impair the assets, rights, claims and financial obligations of the water users' community.

(2) The comptroller may at any time cancel the certificate of incorporation of a water users' community and make the disposition of the assets of the water users' community that to him appears equitable, and unless an appeal is taken to the minister from the comptroller's order and the appeal allowed the water users' community is dissolved as soon as the time for appealing has expired.

Historical Note(s): RS1960-405-86.

Fixing tolls

63.  (1) The holder of a licence for river improvement purpose who desires to collect a toll from a person who floats, or proposes to float, timber in the stretch of the stream to which the licence relates may apply to the comptroller to have the toll fixed, and the comptroller, the chief forester and the Superintendent of Lands, or any 2 of them, may fix the toll and determine by whom it shall be paid and the date of payment.

(2) A person shall not float timber in a stretch of a stream to which a licence for river improvement purpose relates unless he pays to the holder of the licence any toll fixed under subsection (1).

Historical Note(s): RS1960-405-87.