Decision Date: May 23, 2002

Panel: Alan Andison

Keywords: Water Act – ss. 1 definitions of “divert”, “engineer”, “licence”, “stream”, “works”, 6, 39(1), 40(5); flow measuring device; admissibility of evidence; new evidence

Louis Cooke appealed the decision of an Engineer under the Water Act ordering Mr. Cooke to install a cumulative flow measuring device at his pump intake, and provide monthly flow records of his diversion practice. Mr. Cooke argued that the flow meter readings should not be admissible as evidence at the appeal hearing. He argued that in considering this information, the Board would be forcing him to incriminate himself. He also argued that the order to install the flow meter was unreasonable.

The Board found that the flow meter readings were relevant to the appeal, and admissible in the hearing.

The Board found, on a balance of probabilities, that Mr. Cooke was diverting more water than he was entitled to under his licence. The Board also found that the over-diversion may detrimentally affect fish stocks in the Coldwater River, and that it was reasonable for the Ministry to monitor Mr. Cooke’s water use to prevent further over-diversion. Therefore, the Board found that the orders to install the flow measurement device and provide flow records on a monthly basis were reasonable in the circumstances.

The Board upheld the order, and the appeal was dismissed.