Decision Date: September 25, 1998

Panel: Toby Vigod

Keywords: Water Act -stay application; RJR-Macdonald Inc. v. Canada (Attorney General) (1994) 111 D.L.R. (4th) 385 (S.C.C.)

Cook’s Ferry Indian Band (the “Band”) applied for a stay of an Order, issued by the Assistant Regional Water Manager, extending the deadline for Mr. Zahradnik to construct works and make beneficial use of the water from Twaal Creek. The Band argued that the works would violate its aboriginal rights and title, there had been no consultation, and the watershed does not have sufficient capacity to sustain an additional licence. The Band argued that if construction of the works began as permitted by the extension Order, the Band’s use of the water from the creek would be restricted.

The Panel found that the appeal involved a serious issue, that irreparable harm may result if a stay was not granted, and the balance of convenience favoured granting a stay. The Panel agreed with the Band that if construction of the works began, the Band’s water supply may be affected. It found that, if this occurred, it could cause the Band harm that is neither curable nor compensable. Further, the Panel found that the appeal would be moot if Mr. Zahradnik was able to complete the works prior to the appeal being heard. Conversely, Mr. Zahradnik would not suffer irreparable harm if the stay was granted. Therefore, the Panel granted a stay of the Order. The application was allowed.