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The Water Rights Act
This is an unofficial archived version of The Water Rights Act
as enacted by SM 1988-89, c. 1 on October 19, 1988.
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R.S.M. 1988, c. W80

The Water Rights Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1

In this Act,

"agricultural purposes" means the use of water at a rate of more than 25,000 litres per day for the production of primary agricultural products, but does not include the use of water for irrigation purposes; ("fins agricoles")

"divert" includes block, dam, impound, obstruct, interfere with, remove, dispose of, alter or change the course or position of, or disturb, whether wholly or partially, any water whether flowing or at rest; ("dériver")

"domestic purposes" means the use of water, obtained from a source other than a municipal or community water distribution system, at a rate of not more than 25,000 litres per day, for household and sanitary purposes, for the watering of lawns and gardens, and the watering of livestock and poultry; ("fins domestiques")

"industrial purposes" means the use of water obtained from a source other than a municipal or community water distribution system, for the operation of an industrial plant producing goods or services other than primary agricultural products, but does not include the sale or barter of water for those purposes or the use of water for recreational purposes; ("fins industrielles")

"irrigation purposes" means the use of water at a rate of more than 25, 000 litres per day for the artificial application to soil to supply moisture essential to plant growth; ("fins d'irrigation")

"licence" means a licence issued under this Act; ("licence")

"licensee" means a person who holds a valid and subsisting licence; (" détenteur d'une licence")

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")

"municipal purposes" means the use of water by a municipality or a community for the purpose of supplying a municipal or community water distribution system for household and sanitary purposes, for industrial use or uses related to industry, for the watering of streets, walks, paths, boulevards, lawns and gardens, for the protection of property, for the flushing of sewers, and for other purposes usually served by a municipal or community water distribution system; ("fins municipales")

"permit" means a permit issued under this Act; ("permis")

"permittee" means a person who holds a valid and subsisting permit; ("détenteur d'un permis")

"water" means all water on or below the surface of the ground; ("eau")

"well" means an artificial orifice in the ground constructed for the purpose of obtaining water; ("puits")

"works" includes any excavation, well, structure, plant, operation or contrivance that diverts, or may divert, or is likely to divert water. ("ouvrages")

Property in water.

2

Except as otherwise provided in this Act, all property in, and all rights to the use or diversion of, all water in the province, insofar as the legislative jurisdiction of the Legislature extends thereto, are vested in the Crown in right of Manitoba.

Prohibition against use of water.

3(1)

Except as otherwise provided in this Act or the regulations, no person shall

(a) in any manner whatsoever use or divert water, unless he holds a valid and subsisting licence to do so; or

(b) construct, establish or maintain any works, unless he holds a valid and subsisting licence to do so.

Exception.

3(2)

Subsection (1) does not apply

(a) to a person exercising a right under any other Act of the Legislature or any Act of the Parliament of Canada; or

(b) to a person using water for domestic purposes, where the person has lawful access to the water; or

(c) to a person who constructs a well to obtain water for domestic purposes.

Removal of unauthorized works.

4(1)

Where a person is using or diverting water or has constructed or established or is maintaining any works in breach of section 3, the minister may make an order requiring the person, within a period of time stated in the order,

(a) to cease using or diverting the water; or

(b) to remove the works; or

(c) to repair or reconstruct or alter the works in a manner stated in the order;

as the case may be, and the order shall further state that if the person to whom it is directed fails to comply with the order the minister or a person authorized by the minister may, without further notice or legal process and at the expense of the person, take or cause to be taken the steps set out in subsection (3).

Service of order.

4(2)

The minister shall cause a copy of any order made under subsection (1) to be served personally upon the person to whom it is directed, forthwith after the making thereof.

Minister may remove works.

4(3)

Where after service in accordance with subsection (2) of an order made under subsection (1) the person to whom it is directed fails to comply therewith, the minister may, without further notice or legal process and at the expense of the person, do or cause to be done such things as he deems necessary to stop the use or diversion of the water, or cause the works to be breached, demolished or removed or to be otherwise dealt with as he deems necessary or advisable to enforce the order, as the case may be.

Power to enter lands.

4(4)

The minister or any person authorized by him may enter upon or cross any lands for the purpose of taking any of the steps authorized under subsection (3).

Recovery of expense.

4(5)

Any expense incurred by the minister in taking or causing to be taken the steps authorized under subsection (3) for the purpose of enforcing an order made under subsection (1) is a debt due to the Crown and is recoverable in any court of competent jurisdiction from the person to whom the order is directed.

Emergency conditions.

4(6)

An appeal under section 24 from an order made under this section shall not operate as a stay of the order or of the power of the minister to take any of the steps authorized under subsection (3), where the minister finds that the use or diversion of water or the works to which the order refers constitutes an emergency and the order so states, but if the appeal is successful the minister may enter into an agreement with the appellant for the payment to the appellant of compensation for any loss or damage resulting to the appellant from the enforcement of the order.

Liability of minister.

4(7)

Except as provided in subsection (6), neither the minister nor any person authorized by him is liable for damages for anything done without negligence under this section, or for anything that is necessarily done as incidental to an act authorized under this section.

Issue of licences.

5(1)

Subject to section 7, the minister may issue a licence to any person who applies therefor, authorizing the use or diversion of water for any purpose or the construction, establishment or maintenance of works for any purpose.

Terms and conditions of licences.

5(2)

Every licence is subject to such terms and conditions as may be prescribed in the regulations and such further terms and conditions as may be required by the minister.

Expiry of licences.

5(3)

Every licence expires on a date prescribed in the regulations and may be renewed for such period or periods and in such manner as may be prescribed in the regulations.

Form of licences.

5(4)

Every licence shall be in a form prescribed in the regulations or, where that form is not so prescribed, in a form prescribed by the minister.

Application for licence.

6(1)

An application for a licence shall be submitted to the minister and shall contain or have enclosed therewith such information, particulars and plans as may be prescribed in the regulations.

Form of application for licence.

6(2)

An application for a licence shall be in a form prescribed in the regulations or, where that form is not so prescribed, in a form prescribed by the minister.

Publication of application.

6(3)

Where, by reason of the scope and nature of the use or diversion of water or the construction, establishment or maintenance of works proposed in an application for a licence and its possible impact on other persons, the minister so directs, the applicant shall, forthwith after submitting the application, publish or cause to be published in a newspaper having general circulation in the area affected, a notice of the application, and the notice shall state

(a) the nature of the licence applied for;

(b) that any person wishing to object to the application may do so in writing to the minister within 15 days of the publication of the notice; and

(c) any other information or particulars that the minister may require.

Public hearing.

6(4)

Upon expiry of the 15 days provided in subsection (3) in respect of any application, and before the minister determines whether or not to grant the application, a public hearing shall be held before the Municipal Board at which any person may make representations, either himself or through counsel, for or against the application.

Preliminary work.

7(1)

Where it is necessary to carry out any preliminary work prior to the use or diversion of water or the construction or establishment of works, the minister shall not issue a licence authorizing the use or diversion of the water or the construction or establishment of the works until the preliminary work has been completed.

Permit for preliminary work.

7(2)

No person shall commence or carry out any preliminary work required under subsection (1) unless and until he obtains a permit authorizing the preliminary work.

Issue of permits.

7(3)

The minister may issue a permit to any person who applies therefor, authorizing any preliminary work required under subsection (1), and the permit may also authorize the permittee to enter upon public or private lands to make surveys and do such other things as the minister deems necessary to carry out the preliminary work.

Terms and conditions of permits.

7(4)

Every permit is subject to such terms and conditions as may be prescribed in the regulations and such further terms and conditions as may be required by the minister.

Application for permit.

7(5)

An application for a permit required under subsection (2) shall be submitted to the minister and shall contain or have enclosed therewith

(a) such information, particulars and plans relating to the proposed use or diversion of water or the proposed construction or establishment of works as the minister may require; and

(b) if required by the minister, an agreement in writing, made between and executed by both the applicant and the owner of the lands to be affected, whereby the applicant undertakes to pay to the owner compensation for any damage that may result to the lands or any buildings or other improvements thereon in the course of and arising out of the preliminary work to be authorized by the permit.

Expiry of permits.

7(6)

Every permit expires on a date prescribed in the regulations and may be renewed for such period or periods and in such manner as may be prescribed in the regulations.

Form of permits and applications.

7(7)

Every permit and every application for a permit shall be in a form prescribed in the regulations or, where that form is not so prescribed, in a form prescribed by the minister.

Precedence of licences.

8(1)

Licences have precedence in relation to one another according to the date of submission of the application for each licence.

Where no preliminary work.

8(2)

For the purposes of subsection (1), the date of submission of an application for a licence, where no preliminary work is required prior to the issuance of the licence, is

(a) the date on which the application, together with such information, particulars and plans as may be required under section 6, is submitted to the minister; and

(b) where any information, particulars or plans, or a part of any information, particulars or plans, required under section 6 are not submitted to the minister together with the application but at a subsequent time, the date on which the information, particulars or plans or the part thereof are so submitted.

Where preliminary work completed.

8(3)

For the purposes of subsection (1), the date of submission of an application for a licence issued after the completion of preliminary work pursuant to a permit is

(a) the date on which the application for the permit, together with such things as may be required under section 7, is submitted to the minister; and

(b) where any thing, or a part of any thing, required under section 7 is not submitted to the minister together with the application for the permit but at a subsequent time, the date on which the thing or the part thereof is so submitted.

Where submission dates identical.

8(4)

Where the date of submission established under subsection (2) or (3) in respect of any licence is identical with the date of submission established under subsection (2) or (3) in respect of any other licence, the licences have precedence in relation to one another according to the priority of purpose established for each licence in the order of priority prescribed in section 9.

Where priority of purpose identical.

8(5)

Where the priority of purpose established in respect of any licence under subsection (4) is identical with the priority of purpose established in respect of any other licence under subsection (4), the licences have precedence in relation to one another as the regulations may provide.

Precedence of renewed licences.

8(6)

A licence that is renewed in accordance with the regulations retains the precedence originally established for it under this section.

Priorities.

9

The order of priority of the purposes for which water may be used or diverted, or works constructed, established or maintained, in accordance with this Act is as follows:

1. domestic purposes;

2. municipal purposes;

3. agricultural purposes;

4. industrial purposes;

5. irrigation purposes;

6. other purposes.

Application for use in the future.

10

Where the minister is satisfied that an applicant for a licence does not intend to use or divert the water or to construct or establish the works to which the application relates, for at least 1 year from the date of the filing of the application, he may defer the granting of the licence or refuse to grant the licence.

Change of title to land.

11

Where an estate or interest in land is transferred, any subsisting licence relating to the estate or interest expires automatically as of the date of the transfer, unless the minister, upon the application of the transferee, transfers the licence to the transferee.

Subsidiary use for domestic purposes.

12

Subject to the approval of the minister, a person who has a licence to use or divert water for industrial, agricultural or irrigation purposes may use or divert, or permit others, with or without a fee or charge therefor, to use or divert part of the water for domestic purposes.

Reservation of water.

13(1)

Notwithstanding any other provision of this Act, the minister may reserve any unlicenced water

(a) in order that a survey may be made as to how the water may be used or diverted to the greatest advantage of the residents of the province; or

(b) for such uses and purposes specified by the minister as in his opinion will be of the greatest advantage to the residents of the province;

and may fix a period of time within which the reservation may be utilized.

Restriction on licences.

13(2)

Where water has been reserved under subsection (1), the minister shall not issue a licence in respect thereof except in accordance with the terms of the reservation.

Cancellation of licence.

14(1)

Where a person applies to the minister for a licence to use or divert water at any place or point and all the water available for use or diversion at that place or point has already been allocated to other licensees, if the purpose for which the applicant will use the water is higher in priority in the order of priority established therefor under section 9 than that of the purpose of one or more of those other licensees, the minister may issue the licence to the applicant and, subject to section 19, may cancel or restrict the rights under the licence of any one or more of those other licensees ranking lower than the applicant in priority of purpose.

Compensation.

14(2)

A person whose existing licence is cancelled or whose rights under his existing licence are restricted under subsection (1) in favor of a new applicant for a licence is entitled to receive from and shall be paid by the applicant compensation for any loss or damage suffered by him as a consequence of the cancellation or restriction.

Agreement respecting compensation.

14(3)

The minister shall not issue a licence to an applicant under subsection (1) until he receives from the applicant an agreement, executed by both the applicant and the person whose licence is cancelled or restricted under that subsection, containing the applicant's undertaking to pay to the person the compensation for which provision is made in subsection (2), and the amount of the compensation and the terms of the payment thereof shall be set out in the agreement or determined in accordance with subsection (4), as the case may be.

Arbitration.

14(4)

Where an applicant for a licence and a person whose license is cancelled or whose rights under a licence are restricted fail to agree on the amount of the compensation payable by the applicant under subsection (2), the amount thereof shall be determined in accordance with the provisions of The Arbitration Act.

Compensation where no renewal or transfer.

14(5)

Where a licensee applies for a renewal or transfer of his licence and the minister declines to renew or transfer the licence by virtue of an application for a higher priority use, compensation is payable by the new user as provided in this section.

Non-use of licence.

15

Where a licensee fails to use or divert water under the authority of and for the purposes authorized by the licence, or fails to use or divert water to the extent authorized by the licence, for a continuous period of 1 year or more, the minister may, subject to section 19, make an order

(a) amending the licence to reduce the amount of water that may be used or diverted thereunder; or

(b) cancelling the licence.

Unsafe works.

16

Where in the opinion of the minister works constructed, established or maintained under a licence are unsafe, the minister may make an order requiring the licensee

(a) to make repairs or additions to the works or any part thereof; or

(b) to demolish, or to demolish and reconstruct, the works or any part thereof;

to put the works in a safe condition and, if the licensee fails to comply with the order, the minister may, subject to section 19, suspend or cancel the licence in whole or in part.

Removal or acquisition of works.

17(1)

Where a licence authorizing the construction, establishment or maintenance of works

(a) expires, and the licensee fails to apply for its renewal in accordance with the regulations; or

(b) is cancelled by the minister under this Act;

the minister may

(c) make an order requiring the person who owns or is occupying the land in respect of which the licence was issued or on which the works are situated to demolish or remove the works; or

(d) for and on behalf of the government and in accordance with the regulations, assume ownership and control of the works.

Removal by minister.

17(2)

Where a person fails to comply with an order made under subsection (1) in respect of any works, the minister may, subject to section 4, which applies with such modifications as the circumstances require, dispose of or remove the works, or cause the works to be disposed of or removed, in such manner, and may impose such terms and conditions with respect to the works, as the minister deems necessary.

Compensation.

17(3)

Where the minister assumes ownership and control of works under subsection (1) upon the expiry of a licence, the government shall compensate the licensee therefor.

Failure to agree on compensation.

17(4)

Where the parties cannot agree as to the amount of the compensation payable under subsection (3), the amount of the compensation shall be determined in accordance with the provisions of The Arbitration Act.

Inspection.

18

The minister or a person authorized by him may enter any lands or place for the purpose of inspecting any works constructed or established or being constructed, established or maintained by a licensee under this Act, and the cost of the inspection or such portion thereof as the minister determines is payable by the licensee.

Suspension and cancellation of licence.

19(1)

In addition to any suspension or cancellation of a licence that may be authorized under any other provision of this Act, the minister or a person authorized by him in writing may, for cause,

(a) suspend a licence or permit for any stated period of time or until a condition is met;

(b) where in the opinion of the minister it is in the public interest to do so, cancel a licence or permit whether or not it has first been suspended under clause (a).

Notice and hearing before cancellation.

19(2)

A licence or permit shall not be cancelled under subsection (1) or any other provision of this Act until after notice and a hearing in accordance with subsections (3), (4) and (5).

Notice of hearing.

19(3)

The notice required under subsection (2) shall require the person to whom it is directed to attend before the Municipal Board upon a day specified in the notice which shall not be less than 30 days after the date of service of the notice, to show cause why the licence or permit should not be cancelled.

Service of notice.

19(4)

The notice referred to in subsection (3) shall be served personally, or by registered mail addressed to the last known address of the person to whom it is directed.

Notice of cancellation.

19(5)

Where, after notice and a hearing, the minister cancels a licence or permit, he shall, by a notice in writing sent by registered mail, notify the person affected of the cancellation.

Removal of obstructions.

20

The minister or any person authorized by him may open up, remove or destroy, or cause to be opened up, removed or destroyed,

(a) any dam constructed by beaver; or

(b) any natural obstruction howsoever caused that diverts a flow of water existing prior to the obstruction;

and for that purpose may enter upon or cross any lands; and neither the minister nor the person so authorized by him for the purpose is liable for damage to land or persons arising out of anything done without negligence under this section or anything necessarily done as incidental to an act authorized under this section.

Interprovincial boundary waters.

21(1)

The minister, for and on behalf of the government, may enter into an arrangement or agreement with the government of any other province of Canada or with the Government of Canada for the establishment and constitution of a board that, when established and constituted, shall, to the extent permitted by the legislative powers of the governments that are parties to the arrangement or agreement, have jurisdiction and such power and authority as is vested in it by the arrangement or agreement, to regulate and control the use of interprovincial waters, or the use of the boundary waters between the province and the Northwest Territories, or the use of waters in any stream or streams flowing through more than one of the provinces or through one or more than one of the provinces and the Northwest Territories.

Representative on board.

21(2)

The Lieutenant Governor in Council may appoint a representative or representatives of the government to the board established under subsection (1).

Agreements with other governments.

22

The minister may enter into an arrangement or agreement with the government of any other province of Canada or the Government of Canada or any agency for the making of water measurements, the carrying out of investigations and the collection and publication of data respecting water resources and the best methods of utilizing them.

Offence and penalty.

23(1)

Any person who contravenes, or who neglects, fails, omits or refuses to comply with, a provision of this Act or the regulations or any order made under the authority of this Act or the regulations is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or to both and, where the person is a corporation, to a fine not exceeding $25,000.

Offence and penalty.

23(2)

Any person who obstructs, hinders or interferes with a servant or agent of the government engaged in the performance of his duties in the course of the administration of this Act is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or both and, where the person is a corporation, to a fine not exceeding $25,000.

Offence and penalty.

23(3)

Any person who defaces, alters or removes any survey monument, bench mark or water gauge or other instrument or device placed by a duly authorized person engaged in making surveys or levels in connection with any works authorized under this Act, is guilty of an offence and liable to a fine not exceeding $10,000. or to imprisonment for not more than three months or to both and, where the person is a corporation, to a fine not exceeding $25,000.

Continuing offence.

23(4)

Each day's continuance of any act or default that is an offence under this Act constitutes a separate offence for the purposes of this section.

Appeal.

24

Any person who is affected by an order or decision of the minister under this Act may, within 30 days of the making of the order or decision, appeal the order or decision to the Municipal Board, and the decision of the Municipal Board, notwithstanding anything to the contrary in The Municipal Board Act, is final and not subject to further appeal.

Crown bound.

25

The Crown is bound by this Act.

Regulations.

26

For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations,

(a) prescribing the information, particulars and plans to be submitted with any application for a licence;

(b) prescribing the terms and conditions to which any licence or permit is subject, and respecting the renewal of licences or permits, and the time and the extension of time, for the renewal of licences and permits;

(c) prescribing forms for use under this Act and the information and particulars to be contained therein;

(d) respecting returns, reports and statements to be submitted by licensees and permittees;

(e) prescribing fees and charges that shall be paid in respect of applications, licences and permits;

(f) authorizing the establishment or placing or construction of devices for computing or measuring the volume and discharge of water in any place;

(g) respecting the approval and inspection of works;

(h) respecting the use and disposition of water by licensees;

(i) respecting the measurement of water generally;

(j) regulating the passage of logs, timber and other products of the forest through waters and through or over works;

(k) regulating the water rates that may be charged by licensees, and the publication of tariffs of rates;

(l) respecting the construction of fishways to permit the free and unobstructed passage of fish up and down stream;

(m) respecting the storage, pondage, regulation, diversion or utilization of water for any purpose and for the protection of any source of water;

(n) respecting the construction, maintenance, operation and purchase, and the assumption of ownership and control, of any works, as may be necessary or desirable, and for the regulation and control, in the interests of all water users, of the flow of water that may from time to time pass through, by or over the works.