Decision Date: October 8, 2014

Panel: Alan Andison

Keywords: Water Act – ss. 88, 92(9); order to deactivate access road; stay application; conditional water licence; permit to occupy Crown land; unauthorized works; road berm removal; culvert removal

Subject of the Appeal

Steven Vestergaard applied for a stay of an order (the “Order”) issued to him under section 88 of the Water Act. The Order was issued by a designated Engineer under the Water Act (the “Engineer”), with the Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Order concerned an access road and an associated road berm and culvert that were constructed by Mr. Vestergaard on a parcel of Crown land. The Order required Mr. Vestergaard to remove the road berm and culvert, retain a qualified professional to prepare a road deactivation plan, and deactivate the access road in accordance with the road deactivation plan. The Engineer consented to a short interim stay to allow the Board to obtain submissions from the parties on the application for a stay of the Order.

Mr. Vestergaard held a conditional water licence (the “Licence”), which authorized him to construct a “diversion structure and pipe” on a delineated parcel of Crown Land, and to divert water from that parcel of land, at Battani Creek, for domestic purposes. As the holder of the Licence, Mr. Vestergaard also held a permit (the “Permit”), which authorized him to “occupy Crown land by constructing, maintaining and operating thereon the works authorized under” the Licence. Mr. Vestergaard submitted that he enquired with government staff regarding building an access road parallel to the water pipe running from the diversion point in Battani Creek to his residence. He further submitted that he applied for a timber mark, and was granted a licence in October 2011 to clear timber from the proposed access road.

Mr. Vestergaard advised that he constructed a “simple dirt trail”, which was subsequently damaged by firefighting crews in the process of fighting a forest fire. He further advised that, to repair the damage to the access road, he covered the road surface with aggregate and asphalt, and he dug a drainage ditch and installed culverts. Mr. Vestergaard did not apply for an approval or an amendment to the Licence prior to making these changes to the access road. Mr. Vestergaard submitted that he pursued compensation from the Ministry for the cost of repairing the access road, and his “claim for damages was successful”.

On July 28, 2014, the Order was issued, as the Engineer was of the opinion that there was no legal authority under the Licence and/or Permit for the culvert, access road, or related road berm. The Order also stated that the area around Battani Creek has “a known history of natural hazards”, and the Engineer was concerned that the unauthorized works could cause a slope failure if they were improperly designed. Prior to the issuance of the Order, Mr. Vestergaard had received two advisory letters concerning other unauthorized works that he had constructed on Battani Creek and Magnesia Creek.

Mr. Vestergaard appealed the Order. In his Notice of Appeal, Mr. Vestergaard stated that he had already complied with the terms of the Order requiring him to remove the road berm and culvert. Mr. Vestergaard requested that the Board set aside the terms of the Order requiring him to prepare a road deactivation plan and deactivate the road. He also sought a stay of the Order pending a hearing on the merits of the appeal.
The Engineer opposed a stay of the Order.

In determining whether the stay ought to be granted, the Board applied the three-part test set out in RJR-McDonald Inc. v. Canada (Attorney General).

With respect to the first stage of the test, the Board found that the appeal clearly raised serious issues which are not frivolous, vexatious, or pure questions of law. The Board found that the appeal gave rise to the following issues: whether the access road, road berm, and related works were in accordance with the Permit, Licence, or any other legal authorization; whether the works constructed by Mr. Vestergaard were within the area covered by the Permit; and whether the some or all of the works were necessitated by damage arising from firefighting activity. The Board stated that these issues are questions of mixed fact and law, and would require further evidence. The Board concluded that Mr. Vestergaard had met the first stage of the test.

Regarding the second part of the test, the Board found that Mr. Vestergaard did not establish that there would be irreparable harm to his interests if the stay was denied. Mr. Vestergaard submitted that if a stay was denied, he would be required to comply with the Order and remove the access road. He argued that this would render his appeal moot, and he would be unable to collect damages from the Ministry for the cost of replacing the access road if his appeal was to succeed. The Board found that if the stay was denied, it would not render the appeal moot, Mr. Vestergaard may be able to collect damages, and he would be able to access the water line and diversion works. The Board found that, although a stay would require Mr. Vestergaard to take deactivation measures, he may be able to return the road to its present condition if the appeal was decided in his favour. Also, given that Mr. Vestergaard had been successful in his previous claim for damages against the Ministry for the cost of repairing the access road, the Board was not convinced that he would be unable to collect damages from the Ministry for road deactivation costs. The Board found that Mr. Vestergaard could still access the water pipe and diversion structure by means other than a vehicle. For these reasons the Board found that Mr. Vestergaard failed to meet the second stage of the test.

Regarding the third part of the test, the Board found that the balance of convenience favoured denying a stay of the Order. The Board found that Mr. Vestergaard would suffer some harm and/or inconvenience if a stay was denied, as he would have to incur the costs of deactivating the road, and accessing the water pipe and diversion structure would be less convenient. However, the Board found that granting a stay could result in a risk of irreparable harm to the environment, as defined in RJR MacDonald (i.e., “permanent loss of natural resources”). The Engineer provided evidence that the area in issue was steeply sloping and had experienced significant debris flow in the past. The Board found that permanent environmental damage could occur if a slope failure or washout occurred as a result of inadequate construction of the access road. Further, the Board found that the risk of slope failure and washout created associated risks to public safety and risks of damage to residences, roads, a railway, and the licenced works located downslope and/or downstream from the access road.

Accordingly, the application for a stay of the Order was denied.