Merville Water Guardians Battle On

BC Supreme Court will review local government decision that water bottling is a home occupation

Jen Groundwater

rocks and water in a forest

Photo by Conscious Design on Unsplash

Bruce Gibbons of Merville Water Guardians is taking the Comox Valley Regional District (CVRD) to court in hopes of reversing a decision that will allow a local resident to extract up to 10,000 litres of fresh water per day. 

Scott MacKenzie’s initial conditional license from the province – to extract water for bottling  – was denied, but in March 2023 MacKenzie’s amended application for waterworks (water sales and water delivery) came back to the CVRD. This time, the CVRD decided that water treatment, storage, and transportation could be classified as a home occupation use under CVRD bylaws, opening the door for MacKenzie’s water extraction application to be approved.

This is what prompted Gibbons to file a Petition for Judicial Review in the Supreme Court of British Columbia. It is set to be heard during the week of January 22, 2024 in Courtenay.

“I think they [the CVRD] blatantly contravened their own bylaws by allowing bulk water storage as a home occupation business,” says Gibbons.

“I think they [the CVRD] blatantly contravened their own bylaws by allowing bulk water storage as a home occupation business,” says Gibbons. However, he adds, “the CVRD was unwilling to reconsider their decision.”

After engaging Noah Ross, a lawyer with a particular interest in environmental issues, Gibbons connected with the West Coast Environmental Law Environmental Dispute Resolution Fund (EDRF), which is providing financial support to help defray the costs of his legal challenge.

“I recently visited the Comox Valley and heard from many residents who are deeply concerned about their access to water,” said Shawn Smith, Staff Lawyer at West Coast Environmental Law.

“We are pleased to support Merville Water Guardians’ work with their lawyer Noah Ross to stand up for the health of their water, community, and the sustainability of the aquifer.”

PROVINCE-WIDE IMPLICATIONS?

While Gibbons’ petition revolves around a specific aquifer in the Comox Valley, it could have province-wide implications.

“Municipalities are entrusted with the ability and responsibility to regulate fresh water use,” explains Noah Ross. “Mr. Gibbons’ application can create a precedent which will pressure the CVRD and other municipalities to interpret existing bylaws conservatively when it comes to proposed industrial water uses.”

Gibbons has spent more than five years communicating with the public; local administrations and politicians; and staffers and politicians at multiple provincial ministries about the importance of preventing ground and surface water – a critical public good – from being extracted for private profit.

During this time, Eastern Vancouver Island, where this legal battle is being waged, has experienced historic drought levels, the worst being 2023’s unprecedented 11 weeks at Drought Level 5 (Adverse Impacts Almost Certain). Gibbons is hoping that when the BC Supreme Court court hears his case the decision will be in favour of protecting this all-important resource.

UPDATE
Two different provincial ministries (Forests and Environment) used to have partial responsibility for water issues in BC, increasing the possibility of confusion and complicating cases like this one.

In late October 2023, responsibility for water and water license management was transferred to the Ministry of Water, Land and Resource Stewardship. This may signal a more robust approach to safeguarding water in the future.

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