Decision Date: August 13, 1998

Panel: Toby Vigod

Keywords: Water Act; stay; Mara Meadows Ecological Reserve

This was an application for a stay of the Deputy Comptroller of Water Rights’ decision requiring the District of Salmon Arm to decommission an unauthorized creek diversion. The District appealed that decision, and the Deputy Comptroller’s refusal to issue a water licence for a mountain equalizing water storage facility, but only requested a stay in relation to the decommissioning of the diversion. The Deputy Comptroller and the Third Parties urged the Board to refuse the stay.

The Board applied the usual three part test to determine whether to issue a stay in this case. While it was questionable whether there was a serious issue to be tried in the appeal given the presence of an Order in Council protecting the subject creek, the Board assumed there was a serious issue for the purposes of the application. The Board also accepted that the District may suffer some harm if the stay was refused, although it would be relatively minor financial harm. However, the Board concluded that the balance of convenience did not weigh in favour of a stay. It found that the diversion was illegal, the Order in Council appeared to protect the water being illegally diverted, and there was some evidence that the diversion was depriving the legitimate licensees of water. The Board also noted that the diversion works had not been maintained, could fail at any time, and that decommissioning the diversion would not cause any significant problems. The application for a stay was denied.