1995 Legislative Session: 4th Session, 35th Parliament
THIRD READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 8th day of June, 1995
Ian D. Izard, Law Clerk
HONOURABLE MOE SIHOTA
MINISTER OF ENVIRONMENT, LANDS AND
PARKS AND MINISTER RESPONSIBLE FOR MULTI-
CULTURALISM AND HUMAN RIGHTS
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 (1) In this Act:
"large scale project" means a project to divert or extract a peak instantaneous flow of 10 m3 or more a second of water, but does not include a project
(a) that, on the date immediately preceding the date this section comes into force, is complete or in operation, or
(b) for which, on the date immediately preceding the date this section comes into force,
(i) site preparation has begun, or
(ii) the fabrication, construction, installation or supply of buildings, equipment, machinery or other facilities has begun;
"licensed registrant" means a person recorded in the register in the "licensed" category;
"major watershed" means any of the following 9 regions:
(a) the Fraser Watershed, comprising the area that drains into the Fraser River and its tributaries;
(b) the Mackenzie Watershed, comprising the area that drains into the Mackenzie River and its tributaries;
(c) the Columbia Watershed, comprising the area that drains into the Columbia River and its tributaries;
(d) the Skeena Watershed, comprising the area that drains into the Skeena River and its tributaries;
(e) the Nass Watershed, comprising the area that drains into the Nass River and its tributaries;
(f) the Stikine Watershed, comprising the area that drains into the Stikine River and its tributaries;
(g) the Taku Watershed, comprising the area that drains into the Taku River and its tributaries;
(h) the Yukon Watershed, comprising the area that drains into the Yukon River and its tributaries;
(i) the Coastal Watershed, comprising the rest of British Columbia;
"officer" has the same meaning as in the Water Act, except that it includes a police officer and a police constable;
"register" means the register established under section 9;
"registered licence" means a licence issued under the Water Act in respect of which a person is registered under section 10 or 11 of this Act, as a licensed registrant, and includes
(a) a licence issued under the Water Act in full or partial substitution for such a licence,
(b) the agreement dated August 28, 1987 entered into under the Greater Vancouver Water District Act by the Greater Vancouver Water District to sell and supply water to Point Roberts Water District No. 4, and
(c) any agreement or agreements entered into under the Greater Vancouver Water District Act by the Greater Vancouver Water District in full or partial substitution for the agreement of that date if
(i) the substituted agreement or agreements restrict the water sold and supplied for utilization only by Point Roberts Water District for direct distribution to the inhabitants and businesses resident in Point Roberts, and
(ii) the net maximum quantity of bulk water that may be supplied in the aggregate under the agreement or agreements, including the agreement referred to in paragraph (b), that are in effect at any time does not exceed 3 182.2 m3 a day;
"unlicensed registrant" means a person recorded in the register in the "unlicensed" category.
(2) Unless the context requires otherwise, words and expressions used in the Water Act have the same meaning in this Act.
(3) If doubt exists as to which watershed contains all or part of a stream or aquifer,
(a) the comptroller may resolve the doubt by an order specifying a watershed, and
(b) unless the order is revoked under subsection (4), the stream, aquifer or part of an aquifer that was the subject of the order is deemed to be in the specified watershed.
(4) The comptroller may revoke an order made under subsection (3) on the basis of satisfactory evidence resolving the doubt that existed at the time the order was made.
2 The purpose of this Act is to foster sustainable use of British Columbia's water resources in continuation of the objectives of conserving and protecting the environment.
3 (1) The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the Crown in right of British Columbia, except only in so far as private rights have been established under this Act or under licences issued or approvals given under the Water Act or a former Water Act.
(2) The property in and the right to the use, percolation and any flow of ground water, wherever ground water is found in British Columbia, are for all purposes vested in the Crown in right of British Columbia and are conclusively deemed to have always been vested in the Crown in right of British Columbia.
4 (1) Except for a registered licence, no licence, approval or permit under the Water Act, whether issued before, on or after the date this section comes into force, confers any right
(a) to drill for, divert, extract, use or store water for removal from British Columbia,
(b) to dispose of or sell water to a person for removal from British Columbia,
(c) to convey or transport water for removal from British Columbia,
(d) to remove water from British Columbia, or
(e) of property in respect of water removed or intended to be removed from British Columbia.
(2) Except in the case of a person who is an unlicensed registrant, and then only in accordance with the applicable conditions, under section 16, of that person's registration, a person who in British Columbia diverts or extracts unrecorded water or ground water does not have, and does not by diverting or extracting the water acquire, any of the rights described in subsection (1) (a) to (e).
(3) Despite any other enactment, a person who acquires water originating in British Columbia from another person, whether directly or indirectly, does not, by that acquisition, acquire any of the rights described in subsection (1) (a) to (e).
5 A person must not remove water from British Columbia unless the person
(a) is a licensed registrant under a registered licence that remains in effect and complies with the registered licence,
(b) is registered as an unlicensed registrant, under a registration that remains in effect, and complies with the applicable conditions, under section 16, of that registration,
(c) removes the water in containers of 20 litres capacity or less, of water that has been packaged in British Columbia, or
(d) obtained the water outside British Columbia and, at the time of the removal is in possession of evidence satisfactory to the comptroller to that effect.
6 (1) A person must not construct or operate a large scale project capable of transferring water from one major watershed to another major watershed.
(2) A person must not modify a project capable of diverting or of extracting water if the modification results in, or if completed would result in, the project having the capability of transferring water at a peak instantaneous flow of 10 m3 or more a second from one major watershed to another major watershed.
7 (1) Despite the Water Act and the regulations under that Act, but subject to subsection (2), the comptroller or regional water manager must not issue a licence, approval or permit that allows a person to
(a) remove water from British Columbia,
(b) divert or extract water for removal to an area outside British Columbia,
(c) construct or operate a large scale project capable of transferring water from one major watershed to another major watershed, or
(d) modify a project contrary to section 6 (2).
(2) Subsection (1) does not apply to the issuance of a licence under the Water Act in full or partial substitution for a registered licence.
(3) A licence, approval or permit issued contrary to subsection (1) has no effect.
8 Nothing in this Act prohibits the removal of water from British Columbia in the ordinary course of carrying the water in vehicles, vessels or aircraft for the use of persons or animals while the persons or animals, as the case may be, are being transported in the vehicles, vessels or aircraft.
9 The comptroller must establish and maintain for the purposes of this Act a register with 2 categories of registration, "licensed" and "unlicensed", and must record in the register
(a) in the licensed category, the name and address of each person registered under section 10 or 11,
(b) in the unlicensed category, the name and address of each person registered under section 12 or 13,
(c) for each unlicensed registrant, a copy of the comptroller's report made under section 14,
(d) for each licensed registrant, a copy of the relevant licence, and
(e) other information that the Lieutenant Governor in Council may prescribe.
10 (1) The comptroller must register the holder of each of the following conditional licences as a licensed registrant, without the necessity of an application for registration:
(a) licence no. 64737 for 200 acre feet a year from Alpine Creek near Toba Inlet;
(b) licence no. 64738 for 200 acre feet a year from Racine Creek near Toba Inlet;
(c) licence no. 69510 for 200 acre feet a year from Tzela Creek near Toba Inlet;
(d) licence no. 70663 for 5 837 acre feet a year from Whalen Lake on Princess Royal Island;
(e) licence no. 101289 for 40 million gallons a year from Salmon Glacier near Stewart.
(2) The comptroller must register a person, other than one registered under subsection (1), as a licensed registrant, if each of the following requirements is fulfilled:
(a) the person applies for registration in the form and manner required by the comptroller;
(b) the application is received in the office of the comptroller no later than September 1, 1996;
(c) the person is the holder of a licence in existence immediately before the date this section comes into force and, as of that date and the date of the application, the licence specifies an appurtenancy;
(d) the person provides evidence, satisfactory to the comptroller, that the person or the person and any previous holders of the licence have been removing from British Columbia, before June 1, 1995,
(i) commercial quantities of the licensed water, if the licence is for industrial purpose, or
(ii) substantial quantities of the licensed water, if the licence is for any of the other purposes under the Water Act, as those purposes were defined under that Act immediately before the coming into force of this Act.
(3) The comptroller must register a person, other than one registered under subsection (1) or (2), as a licensed registrant if
(a) the person is the holder of a licence that fulfills the requirements of subsection (2), except that the licence does not specify an appurtenancy, and
(b) the person, in applying under this section, requests the comptroller to make the licence appurtenant to land, a mine or an undertaking identified in the application.
(4) The comptroller must register the Greater Vancouver Water District as a licensed registrant in respect of
(a) the agreement dated August 28, 1987 referred to in paragraph (b) of the definition of "registered licence", and
(b) the substituted agreements, if any, as described in paragraph (c) of that definition.
(5) On the
(a) amendment of a registered licence, or
(b) full or partial substitution for a registered licence of another licence,
other than as provided for in section 11, or on the suspension, cancellation, abandonment or expiry of a registered licence, the comptroller must amend the register and make the changes in registration that the comptroller considers appropriate, in order to reflect the amendment, substitution, suspension, cancellation, abandonment or expiry, as the case may be.
11 (1) On the disposition to any person of the whole or any part of any land, mine or undertaking to which a registered licence has been made appurtenant under the Water Act, the comptroller must,
(a) in the case of a disposition of the whole, cancel the registration of the person making the disposition, and register the other person as the licensed registrant in respect of that registered licence, or
(b) in the case of a partial disposition, amend the registration of the person making the disposition to reflect the disposition and register the other person as a licensed registrant in respect of the part disposed of to that other person.
(2) On any transfer or apportionment, under section 16 or 17 of the Water Act, by the comptroller of the whole or part of the rights and obligations under a registered licence,
(a) the comptroller must amend the register as the comptroller considers appropriate in order to reflect the transfer or apportionment, as the case may be, and
(b) if the transfer or apportionment effects a transfer from the licensed registrant to another person of the whole or part of the rights related to the registration of that registrant, the comptroller must,
(i) in the case of a transfer of the whole of those rights, cancel the registration of the licensed registrant and register the other person as the licensed registrant in respect of that registered licence, or
(ii) in the case of a partial transfer of those rights, amend the registration of the licensed registrant to reflect the transfer of rights and register the other person as a licensed registrant in respect of the part transferred to that other person.
(3) For greater certainty, nothing in this section affects the application of any provision of the Water Act to or in respect of any licence under that Act that is a registered licence under this Act.
12 The comptroller must register a person as an unlicensed registrant if each of the following requirements is fulfilled:
(a) the person applies for registration in the form and manner required by the comptroller;
(b) the application is received in the office of the comptroller no later than September 1, 1996;
(c) the person provides evidence, satisfactory to the comptroller,
(i) of the location of the well or wells that are the source of the water and of any works associated with the well or wells,
(ii) that, for at least the 3 year period immediately before the date this section comes into force, the well or wells have been a source of water removed from British Columbia,
(iii) identifying the land, mine or undertaking to which any diversion or extraction of water from the well or wells is appurtenant, and
(iv) of the highest volume in any consecutive 12 month period, of ground water that the person has taken for any purpose from that well or those wells during the 3 year period immediately before the date this section comes into force.
13 (1) The registration of an unlicensed registrant passes with the disposition of the land, mine or undertaking to which the registration is appurtenant.
(2) On the disposition to any person of the whole or any part of any land, mine or undertaking to which the registration of an unlicensed registrant is appurtenant, the comptroller must,
(a) in the case of a disposition of the whole, cancel the registration of the person making the disposition and register the other person as an unlicensed registrant instead of the person making the disposition, or
(b) in the case of a partial disposition, amend the registration of the person making the disposition to reflect the disposition and register the other person as an unlicensed registrant in respect of the part disposed of to that other person.
(3) Sections 16 and 17 of the Water Act, that confer powers on the comptroller and the regional water manager respecting the transfer and apportionment of rights and obligations under licences, apply, for the purposes of this Act, to and in respect of the transfer and apportionment of the rights and obligations associated with the registration of unlicensed registrants under this Act.
(4) On any transfer or apportionment, under section 16 or 17 of the Water Act as it applies for the purposes of this Act, of the whole or part of the rights and obligations associated with the registration of an unlicensed registrant under this Act, the comptroller must amend the register as the comptroller considers appropriate in order to reflect the transfer or apportionment, as the case may be, and the comptroller must,
(a) if the transfer or apportionment effects a transfer from the unlicensed registrant to another person of the whole of the rights related to the registration of that registrant, cancel the registration of the unlicensed registrant whose rights were transferred and register the other person as an unlicensed registrant in respect of the transferred rights, or
(b) if the transfer or apportionment effects a transfer from the unlicensed registrant to another person of part of the rights related to the registration of that registrant, register the other person as an unlicensed registrant in respect of the transferred rights.
14 (1) As soon as practicable after consideration of an application received under section 12, and after giving the applicant an opportunity to be heard, the comptroller must issue a written report setting out his or her findings as to
(a) the location of the well or wells that are the source of the water and of any works associated with the well or wells,
(b) whether or not, for at least the 3 year period immediately before the date this Act comes into force, the well or wells have been a source of water removed from British Columbia,
(c) the land, mine or undertaking or any combination of those things to which any diversion or extraction of water from the wells is appurtenant, and
(d) the highest annual volume, in any consecutive 12 month period, of water that the person has taken for any purpose from that well or those wells during the 3 year period immediately before the date this Act comes into force.
(2) As soon as practicable after a disposition referred to in section 13 (2) or a transfer or apportionment referred to in section 13 (4), and in conjunction with any registration, cancellation of registration or amendment to the register that is required by section 13 (2) or (4), the comptroller must issue a written report setting out for each new or amended registration
(a) a description of the land, mine or undertaking or any combination of those things to which the rights associated with registration are appurtenant, and
(b) the maximum annual volume, in any consecutive 12 month period, of water that the new registrant or registrant whose registration is amended, as the case may be, may take for any purpose from the well or wells that form part of the appurtenancy.
15 The registration of an unlicensed registrant is appurtenant for all purposes of this Act to the land, mine or undertaking or any combination of those things that,
(a) in the case of a registration under section 12, is set out for that registration in the comptroller's written report under section 14 (1), or
(b) in the case of a registration under section 13 or an amendment of a registration under that section, is set out for that registration in the comptroller's written report under section 14 (2).
16 (1) It is a condition of the registration of every unlicensed registrant who is registered under section 12 that
(a) the unlicensed registrant must not remove from British Columbia an annual volume of water, in any calendar year, that is greater than the highest annual volume of water, set out for that registration in the comptroller's report under section 14 (1), that the person has taken for any purpose, from the well or wells that were the source of the water, during the 3 year period immediately before the date this Act comes into force, and
(b) the unlicensed registrant must not remove from British Columbia any water other than water from the well or wells, and works, set out for that registration in the comptroller's report under section 14 (1).
(2) It is a condition of the registration of every unlicensed registrant who is registered under section 13 that
(a) the unlicensed registrant must not remove from British Columbia an annual volume of water, in any calendar year, that is greater than the maximum annual volume of water set out for that registration in the comptroller's report under section 14 (2), and
(b) the unlicensed registrant must not remove from British Columbia any water other than water from the well or wells, and works, set out for that registration in the comptroller's report under section 14 (2).
(3) It is a condition of the registration of every unlicensed registrant who is registered under section 12 or 13 that, on a conveyance, other disposition or transmission of land, a mine or an undertaking to which the registration is appurtenant, the unlicensed registrant, the unlicensed registrant's personal representative, or another person representing the unlicensed registrant, must immediately give written notice of the conveyance, other disposition or transmission to the comptroller.
(4) The comptroller may amend the comptroller's report issued under section 14 (1) or (2), for the registration of any unlicensed registrant by specifying a new location or locations within the original appurtenancy for one or more replacement wells and associated works.
(5) If, under subsection (4), the comptroller amends the comptroller's report for the registration of any unlicensed registrant, the limits on annual volume of water described in section 16 (1) or (2), whichever is applicable,
(a) remain the same for that registration after the amendment as they were before the amendment, and
(b) apply to the well or wells and the works as described in the amended comptroller's report.
17 (1) Section 5 of the Offence Act does not apply to this Act or to the regulations.
(2) A person commits an offence who
(a) contravenes section 5 or 6 (1) or (2), or
(b) makes a statement in a record filed or provided under this Act that is false or misleading with respect to a material fact or that omits to state a material fact the omission of which makes the statement false or misleading.
(3) A person does not commit an offence under subsection
(2) (b) if at the time of the statement the person did not know that the statement was false or misleading and, exercising due diligence, could not have known that the statement was false or misleading.
(4) 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) if 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.
(5) If 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.
(6) An information for or in respect of any offence against this Act or the regulations must be laid before the expiration of one year from the time of the happening of the offence.
18 (1) If a person is convicted of an offence under section 17 and the court is satisfied that, as a result of the commission of the offence, the person acquired any monetary benefits or that monetary benefits accrued to the person, the court may order the person to pay a fine equal to the court's estimation of the amount of those monetary benefits.
(2) A fine under subsection (1) is in addition to and not in place of a fine under section 17.
19 A conviction or penalty for an offence under this Act does not relieve a person from any other liability.
20 An officer may
(a) stop a person, including a person who is operating a vehicle, vessel or aircraft,
(b) require the person to produce proof of identity, and
(c) without warrant, search the vehicle, vessel or aircraft,
if the officer has reasonable grounds to believe that the person is contravening or has contravened this Act, and, at the request of the person, the officer must produce proof of the officer's identity.
21 A person must stop, and a person who is operating a vehicle, vessel or aircraft must stop the vehicle, vessel or aircraft, when required to do so by an officer who is acting under section 20 and who
(a) is in uniform,
(b) displays his or her official badge, or
(c) is in or near a vehicle that is readily identifiable as a ministry vehicle, police car, police motor cycle or other official vehicle.
22 A person must provide proof of the person's identity when required to do so by an officer who is acting under section 20 and who displays the officer's official badge or produces other proof of the officer's identity.
23 (1) If the minister considers that a person is not complying or has not complied with this Act, the minister may apply to the Supreme Court for either or both of the following:
(a) an order requiring the person to comply with this Act or restraining the person from violating this Act;
(b) an order requiring the directors and officers of the person to cause the person to comply with or to cease violating this Act.
(2) On application by the minister under this section, the Supreme Court may make an order it considers appropriate.
24 Section 1 of the Water Act, R.S.B.C. 1979, c. 429, is amended by repealing the definitions of "conveying purpose", "industrial purpose", "owner" and "waterworks purpose" and substituting the following:
"conveying purpose" means the carriage of water for licensees authorized to divert, extract, use or store that water;
"industrial purpose" means any use of water in the Province designated by regulation as a use for industrial purpose, but does not include
(a) the use of water for any of the other purposes defined in this section, or
(b) the carriage or supply by a person of water to or for use by any other person;
"owner" means a person entitled to possession of any land, mine or undertaking in the Province, and includes a person who has a substantial interest in the land, mine or undertaking;
"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 in the Province; .
25 The following section is added:
3.1 Except for a purpose defined in section 1 of this Act, a person who is not registered under the Water Protection Act must not divert, extract, use or store any water from a stream.
26 Section 10 is amended
(a) by repealing paragraph (e),
(b) by renumbering the section as section 10 (1), and
(c) by adding the following subsection:
(2) With respect to an application for a licence, the comptroller or regional manager must determine, in accordance with section 10.1, the precedence and appurtenancy of any licence to be issued under the application.
27 The following section is added:
10.1 The comptroller or regional water manager must ensure that every licence issued on or after the date this section comes into force
(a) specifies the date of precedence of the licence,
(b) is for the diversion, extraction, use or storage of water, or for any combination of those things, for one, 2 or 3 of the purposes defined in section 1 and the purpose is or the purposes are specified in the licence, and
(c) specifies as the appurtenancy of the licence an appurtenancy that
(i) is located entirely in the Province,
(ii) consists of land, a mine or an undertaking, or any combination of those things, and
(iii) is adequately described in the licence.
28 Sections 13 and 16 are repealed and the following substituted:
13 (1) Every licence, approval or permit that is made appurtenant to any land, mine or undertaking passes with a conveyance or other disposition of the land, mine or undertaking.
(2) A person conveying or otherwise disposing of land, a mine or an undertaking to which a licence is appurtenant, or in respect of which an approval or permit was issued, or, in the case of a transmission of land, a mine or an undertaking to the personal representative or other person representing the owner, the personal representative or other person must give written notice of the conveyance or other disposition to the comptroller or regional water manager.
16 (1) On the application of the holder of a licence, approval or permit and on compliance by the holder and by 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, on the terms he or she considers proper, may
(a) transfer in whole or in part the rights and obligations granted and imposed under the licence, approval or permit from the holder to the proposed transferee, and
(b) issue a new licence, approval or permit to the transferee or transferor, or both, and determine the appurtenancy of the licence, approval or permit.
(2) Subject to section 11 of the Water Protection Act, the comptroller or regional water manager must not exercise his or her discretion under subsection (1) to determine an appurtenancy that is not in the Province.
29 Section 41 (1) is amended by adding the following paragraphs:
(t) carries, supplies, conveys or transports water diverted from a stream without being authorized to divert, extract, use or store water from that stream, unless acting as agent for a person so authorized;
(u) contravenes section 3.1.
30 Section 46 is amended by adding the following paragraph:
(j) designating the uses of water included under industrial purpose.
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