Decision Date: March 6, 2014

Panel: Alan Andison

Keywords: Water Act – s. 92(9); stay application; conditional water licence; fish and fish habitat; Aboriginal rights; failure to consult

Chief Michelle Edwards, in her own right and on behalf of Sekw’el’was (the “Applicants”), applied for a stay of a conditional water licence (the “Licence”) that was issued to the District of Lillooet (the “District”) by the Assistant Regional Water Manager (the “Regional Manager”), Cascades District, Ministry of Forests, Lands and Natural Resources Operations. The District applied for the Licence after experiencing issues with water quality and shortages. The Licence allows the District to construct a new water intake system and to divert up to 2,000,000 gallons of water per day from the Seton River, at a location that is within St’at’imc Territory. The Applicants are one of the First Nations communities that form the St’at’imc Nation. The Applicants’ reserve land is located across the river from the water intake.

The Applicants appealed the Licence on the basis that the Provincial Crown has a duty to consult with them in relation to the Licence, and failed to do so adequately. The position of the Applicants is that the proposed project under the Licence will directly and adversely affect their Aboriginal title, rights and interests.

When the Applicants filed their appeal, they also applied for both an immediate interim stay, and a stay pending the Board’s decision on the merits of the appeal. The Applicants sought an immediate interim stay, before the Board decided the further stay application, because some of the water works authorized by the Licence were already under construction when the appeal was filed. The Board issued an interim stay, preventing work from taking place within the Seton River and Seton River bed, until the Board was able to consider submissions from all parties on the stay application.

Regarding the application for a stay pending a decision on the merits of the appeal, the Applicants submitted that the physical works will be located within fish-bearing and spawning habitat, and that the Applicants rely upon the fish in the exercise of their Aboriginal rights and title. The Applicants further submitted that it is foreseeable that water removal may result in river warming, which may contribute to the death of fish. The Applicants also submitted that the physical works may cause significant erosion to reserve lands.

The District opposed the stay of the Licence. The District`s position was that the stay should be denied as the Applicants were adequately consulted, the physical works were not likely to cause irreparable harm, and the physical works are required to remedy inadequacies in District`s current water supply. The District submitted that the Province fulfilled its duty to consult the Applicants by providing written notice to Tribal and Chiefs Councils of which the Applicants are members. Concerning alleged harm, the District referred to concurring expert reports which concluded that the project is not likely to impact fish and fish habitat. The District was previously granted a licence between 1975 and 1996 (the “1975 Licence”), which permitted the District to divert the same amount of water, 2 million gallons per day, from the Seton River. The District submitted that any adverse effects of the proposed intake would have been evident during the operation of the 1975 Licence. Finally, the District argued that the current water supply is inadequate in both quality and quantity.

The Regional Manager took no position on the stay application.

In determining whether the stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald 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 appeal concerns potential harm to Aboriginal rights, and the level of consultation that was appropriate in the circumstances. The Board found that the first stage of the test was satisfied, and proceeded to consider the subsequent parts of the test.

Regarding the second part of the test, the Board found that there was unlikely to be irreparable harm to the Applicants’ asserted Aboriginal rights if the intake was constructed. In particular, the Board found that there was no reliable evidence that the intake would adversely affect fish or fish habitat such that the Applicant’s rights would be impacted. The Board accepted the findings of two concurring expert reports which provided that there is a low likelihood that the subject area is used for fish spawning, and that any loss to fish or fish habitat will be temporary – not permanent. The Board noted that the project is planned to occur during low water after spawning, and that the reports describe mitigation strategies to reduce impact on fish and aquatic habitat, and to control sediment and erosion. Further, the Board noted that an environmental monitor would be onsite. The Board found that there was insufficient evidence of river warming, and noted that the water flow is regulated by an upstream dam. The Board further noted that the 1975 Licence permitted the same amount of water to be diverted for 20 years, and that this Licence may have continued to present day were it not for damage to the works. With respect to concerns that fish would be caught in the intake, the Board noted that the intake design includes a fish screen. The Board found that there was no detailed discussion of the likelihood of erosion, but if erosion were to occur, it would qualify as compensable rather than irreparable damage. Based on the evidence before it, the Board found that the Applicants would not suffer irreparable harm.

Turning to the third part of the test, the Board weighed the potential harm to the Applicants’ interests, if a stay was denied, against any potential harm to the District’s interests if a stay was granted. The Board found that the balance of convenience favoured denying a stay. The Board found that there would not be irreparable harm to the Applicants’ interests in fish or fish habitat. Any failure to consult the Applicants was not irreparable harm itself, in this case. Concerning potential harm to the District, it was undisputed that the sources of water relied upon by the District did not comply with recently developed water quality guidelines and treatment levels. The Board found that a delay in exercising the rights under the Licence may potentially harm the District’s finances, and potentially impact the District’s ability to supply safe drinking water and water for fire-fighting. The Board concluded that, given the environmental precautions taken by the District, the public interest in access to a safe and sufficient supply of water tipped the balance of convenience against granting a stay of the Licence pending a decision on the appeal.

Accordingly, the interim stay was rescinded, and the stay application was denied.