Cook’s Ferry Indian Band (“the Band”) appealed a decision of the Assistant Regional Water Manager to grant a change of works application and issue a Conditional Water Licence to Mr. Zahradnik. The licence allowed Mr. Zahradnik to construct works to divert and use water from Twaal Creek for domestic purposes throughout the year, and for irrigation purposes between April and September. The Band requested a stay of the license pending a decision on the appeal.
The Panel applied the three-step test from RJR-MacDonald v. Canada (Attorney General) to determine whether a stay should be granted. The Panel found that there were serious issues to be tried in the appeal and that the Band may suffer irreparable harm if a stay is not granted. However, the Panel found that the balance of convenience favoured denying a stay. It found that the authorized works had been constructed and that Mr. Zahradnik had expended time and financial resources to do so. The Panel found that Mr. Zahradnik would only be drawing water for domestic use until April, and that the quantity of flow in the creek was sufficient for both parties, with minimal harm to the Band. By the time the irrigation season began, the appeal could be heard and a decision rendered. Further, the Panel noted that if the Band succeeded in the appeal, Mr. Zahradnik’s works could be dismantled. Therefore, a stay would not render the appeal moot. The stay was refused.
