Decision Date:  April 29, 2013

Panel:  Alan Andison

Keywords: Oil and Gas Activities Act – ss. 1 – definition of “oil and gas activity,” 4, 31, 69(1) – definitions of “determination” and “eligible person,” 72(2); preliminary application; standing; jurisdiction; land owner; statutory interpretation

Before the well permit was issued, Mr. Bell provided two submissions to the Commission objecting to the proposed permit. However, his second submission was not received by the Commission before the well permit was issued, due to an error in an email address. Nevertheless, the well permit contained conditions regarding noise control, a requirement that Painted Pony conduct a noise impact assessment, and a requirement that Painted Pony discuss certain matters with the Bell family, including potential concerns about traffic and dust.

Mr. Bell appealed the well permit to the Tribunal on the grounds that the Commission failed to properly consider his concerns about the potential effects of the permitted oil and gas activities on the Property.

Subsequently, the Commission became aware of Mr. Bell’s previously undelivered second objection to the proposal. Shortly thereafter, the Commission suspended the permit, and then amended the permit. The amendment includes conditions requiring Painted Pony to conduct water quality sampling on the Property, and to monitor seismic activity “in the vicinity of the well.” Mr. Bell requested that the Tribunal amend his appeal to also address the amendment.

After the amendment was issued, the Commission requested that the Board dismiss Mr. Bell’s appeal on the basis that he had no standing to appeal the permit, and that the Tribunal had no jurisdiction over the appeal, based on the language in sections 69(1) and 72 of the Oil and Gas Activities Act (the “OGAA”).

Sections 69(1) and 72(2) of the OGAA state that an appeal may be filed by “a land owner of land on which an oil and gas activity is permitted to be carried out under” the OGAA. The parties did not dispute that Mr. Bell is an owner of land, but they disagreed on whether he is an owner of land “on which” the permitted oil and gas activity is to be carried out. Specifically, the Commission and Painted Pony submitted that the permitted oil and gas activity would be carried out only on the Crown land where the well project area is located. In contrast, Mr. Bell submitted that seismic activity and the contamination of soil and water are an integral part of the permitted activity. He further submitted that there was a strong case that the permitted oil and gas activity would have a direct effect “on” the Property, given the close proximity of the well to the Property, and given that the permit conditions express address the potential effects of the oil and gas activity on the Property and the Bell family.

The Tribunal compared the language in sections 69(1) and 72 of the OGAA to the language in other sections of the OGAA and its regulations. The Tribunal found that the appeal provisions do not state that land owners may appeal if they own land within “the project area”, “the proposed project area” or “the proposed site of an oil and gas activity.” Nor do the appeal provisions use site-specific phrases such as “wellsite,” “oil and gas road,” “facility area,” or “operating area,” which are found in other sections of the OGAA and its regulations. The Tribunal also found that, if the Legislature had intended for right of appeal to be limited to owners of land within the project area or some other more site-specific area, it could have used more site-specific language in the appeal provisions of the OGAA, but it did not. Consequently, the Tribunal held that the phrase “land on which an oil and gas activity is permitted to be carried out” is not limited to the proponent’s intended project area, the proposed site of the oil and gas activity, or any of the other more site-specific words and phrases found in the OGAA and its regulations.

Additionally, the Tribunal noted that the appeal provisions in the OGAA state that land owners may appeal a permit amendment “if the amendment changes the effect of the permit on the land of the land owner…” [underlining added]. Based on that language, the Tribunal found that by necessary implication, a permit which is appealable must also have, or be likely to have, an effect on the land of the land owner. The Tribunal found that this conclusion was supported by the language in section 31 of the OGAA, which includes a requirement that the Commission must provide a land owner with notice of an amendment if the amendment “changes the effect of the permit on the land of the land owner.”

Finally, the Tribunal found that there was a strong prima facie case that the permit and the amendment in this case would, or would likely, have specific effects on the Property, given that the permit and the amendment contain conditions that expressly relate to the Property and the Bell family. In particular, the conditions implied that the Property would, or would likely, be affected by noise, dust, seismic activity, and a risk of water contamination as a result of the permitted oil and gas activity. Further, the Tribunal found that, in imposing those conditions, the Commission was carrying out its responsibilities in compliance with the Commission’s purposes set out under sections 4(a) and (b) of the OGAA; namely, regulating “oil and gas activities” and the environmental effects of permitted oil and gas activities, in relation to both the Crown land on which the well is located, and in relation to the Property.

In summary, the Tribunal concluded that Mr. Bell had standing to appeal the permit as “a land owner of land on which an oil and gas activity is permitted to be carried out” within the meaning of sections 69(1) and 72(2) of the OGAA, and consequently, the Tribunal had jurisdiction over the appeal.

Accordingly, the application to dismiss the appeal was denied.