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Merville water fight heads to court

A Merville man is asking the Supreme Court of B.C. to strike down the Comox Valley Regional District’s decision to classify bulk water sales as a permitted home business.

Bruce Gibbons, founder of Merville Water Guardians, filed the petition for judicial review in September. The review is scheduled to be heard in court in January 2024.

Gibbons has been fighting the sale of groundwater in the Comox Valley since he became aware in 2018 of a commercial water licence in his neighbourhood, set to draw from the same aquifer as he does at home.

Since then, he has been determined to tackle the bulk commercial extraction of water in British Columbia.

“I’ve been fighting at a higher level to try and stop water bottling in the whole province,” he said.

In 2017, Christopher Scott MacKenzie received approval for a conditional water licence from the province’s Ministry of Forests, Lands and Natural Resource Operations to extract and bottle up to 10,000 litres of water per day from his property in Merville. But the licence required a rezoning of the property before the business operations could begin.

MacKenzie declined The Discourse’s request for an interview on this story.

The CVRD denied MacKenzie’s rezoning application, and in 2019 the district changed its bylaws so that water bottling facilities would not be permitted anywhere in the region.

In 2018 K’ómoks First Nation expressed its opposition to the proposed water bottling business and the lack of consultation by the province. “It is an insult to our Nation and people,” Nicole Rempel, who was the First Nation’s chief at the time, said in a statement.

The original water licence granted to Scott McKenzie contained a condition that he had to make beneficial use of the water within three years, or the licence would be cancelled.

That three-year deadline passed without McKenzie being able to make any use of the water under his license, as he had been unable to obtain the necessary zoning approval.

“We thought it was finished,” said Gibbons. “The opposition was overwhelming and the regional district denied it”

Then in 2021, MacKenzie applied again to the province for an amendment to the water licence. The application asked to change the purpose of the licence from water bottling to “waterworks,” which includes bulk water delivery and sales.

According to the application, MacKenzie seeks to use the water to fill water trucks, to deliver in bulk to customers and to sell directly on the property to people who fill their own vessels.

The province has yet to make a determination on that amended licence. But it did ask the CVRD to weigh in on the application — specifically if the proposed business would be permitted by the district’s zoning bylaws.

Members of Merville Water Guardians flooded the regional district chambers on March 21, 2023 as the board prepared to decide if that sort of business would legally fall under a “home occupation” use, which would be permitted on MacKenzie’s property.

“There was a lot of opposition to this, right from the get go,” said Gibbons, who says he is concerned about any small decrease in the local aquifers.

Despite the outcry, the CVRD voted 2-1 in March that bulk water sales would qualify as a permitted home business.

Gibbons’s petition to the court seeks to overturn that decision and avert a decision by the province to approve the amended water licence.

‘The situation is complicated,’ says regional district

Alana Mullaly, the general manager of planning and development services for CVRD, said that there are some specific nuances that are important to take into account for the district’s decision on this matter.

Firstly, “the province has the sole jurisdiction over issuing licences for either groundwater or surface water,” she said.

When CVRD previously denied MacKenzie’s rezoning application, the proposal was for a water bottling facility. The district maintains that water bottling would not be permitted on the property, but since then the business plan has changed.

The CVRD stated in March 2023 that this “zoning bylaw permits the on-site treatment, storage, transport, and sale of bulk water as a home occupation use, excluding water bottling.”

The statement shared that MacKenzie proposes two storage tanks on the property and a “drive-thru dispensing unit.”

Mullaly explained that the re-classification of his business and the jurisdictional issues involved are both important to take into account.

“This wasn’t a decision about the CVRD not recognizing the fragility of water sources. It was recognizing that we don’t have jurisdiction over it,” she said.

Noah Ross, a lawyer representing Gibbons, says the case could bring water issues to the forefront for other British Columbian communities.

“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,” he stated in a news release.

Mullaly underlined that the situation is complicated. She also added that many residents in rural areas rely on importing water during the dry season, for both agricultural and domestic use.

When asked whether she knew who MacKenzie would be selling his water to, she said that she wasn’t sure, and that the province would have jurisdiction over the conditions of the water licence.

MacKenzie shared in a Facebook post from March 6 of this year that his business would provide “local water for local people,” and has previously stated that he intends to keep his water local.

The control of water access in the Comox Valley has been a concern for the community in recent years, especially with the increased frequency of extreme droughts in the summer.

The Discourse previously reported on these concerns after talking to local farmers who ran out of water much earlier than they had planned this past summer.

Some farmers in coastal communities have also shared that the restrictions affect them in a disproportionate manner, especially in comparison to other businesses that use large amounts of water.

If the amended water licence is approved, MacKenzie would not be allowed to bottle water on his property, but he would be allowed to store it and sell it for other uses as a home occupation business.

Gibbons says that MacKenzie’s operation is much too large to be classified as home occupation.

The CVRD has “contravened their own bylaw by allowing him to operate a home occupation business,” he said.

“Home occupation business is like someone who does sewing or tailoring or accounting in their little office or home, not an industrial occupation, with [water] tanker trucks coming and going,” he said.

Gibbons has been fundraising via a Gofundme campaign to cover legal costs for his fight to overturn the CVRD’s decision. At the time of publishing, the fundraiser had raised $7,390 towards the $10,000 goal.

Madeline Dunnett, Local Journalism Initiative Reporter, The Discourse