Decision Date: January 10, 2014

Panel: David H. Searle, CM, Q.C.

Keywords: Oil and Gas Activities Act – ss. 31(2), 31(7); pipeline; flow line; permit amendment; land owner; trespass; due regard

Shallan Hauber appealed a decision of the Oil and Gas Commission (“Commission”) to amend a permit that authorizes Murphy Oil Company Ltd. (“Murphy Oil”) to construct and operate a pipeline.

In October 2011, the Commission issued a pipeline permit to Murphy Oil. The pipeline was constructed in late 2011, and consists of three flow lines within a 15-metre right of way.

In September 2012, Murphy Oil realized that, due to a surveying error, part of the pipeline had been bored under the corner of Ms. Hauber’s land, instead of under the adjacent Crown land. The error involved 0.01 hectares, and resulted in no disturbance to the surface of Ms. Hauber’s land. Murphy Oil notified the Commission and Ms. Hauber of the situation.

In October 2012, the Commission ordered Murphy Oil to comply with its pipeline permit, or apply for an amendment to the permit. The Commission later issued two further orders to Murphy Oil in relation to the misplacement of the pipeline.

Meanwhile, Murphy Oil applied for an amendment of its pipeline permit, believing that moving the pipeline would be more disruptive than leaving it in place. As part of the statutory requirements for its amendment application, Murphy Oil notified and consulted with Ms. Hauber regarding the proposed amendment. In response, she provided written submissions on three occasions expressing concerns about Murphy Oil’s conduct and its trespass onto her land.

In May 2013, the Commission issued the amendment, which identifies the correct location of the pipeline in relation to Ms. Hauber’s land, and adds a number of conditions that pertain to Ms. Hauber’s land.

On or about June 3, 2013, the Surface Rights Board decided to issue an order giving Murphy Oil a right of entry to, and access across, Ms. Hauber’s land, subject to certain conditions. One of those conditions is that Murphy Oil must pay Ms. Hauber $1,000 as “partial compensation.”

On June 3, 2013, Ms. Hauber appealed the permit amendment to the Tribunal on the basis that: the Commission did not consider Ms. Hauber’s concerns that Murphy Oil was trespassing on her land; the Surface Rights Board ignored the fact that Murphy Oil was trespassing; and, the amendment issued by the Commission and the order issued by the Surface Rights Board allow Murphy Oil to contravene the law and disregard Ms. Hauber’s rights as a land owner. Ms. Hauber requested that the Tribunal rescind the Commission’s decision to amend the permit, or alternatively, remit the matter back to the Commission with certain directions.

As a preliminary matter, Ms. Hauber requested a stay of the amendment, pending the Tribunal’s decision on the merits of her appeal. On July 12, 2013, the Tribunal denied the application for a stay (Decision No. 2013-OGA-005(a)).

The merits of the appeal were heard by way of written submissions. The main issue to be decided was whether the Commission, in issuing the amended permit, did so without due regard to Ms. Hauber’s submissions in response to the proposed permit amendment.

Before turning to that issue, the Tribunal noted that it had no jurisdiction to address some of the matters raised in Ms. Hauber’s Notice of Appeal. Specifically, it was beyond the Tribunal’s jurisdiction to determine whether the pipelines located beneath her land constitute a trespass under the Trespass Act, or any other enactment. The Tribunal also had no the jurisdiction to provide compensation to Ms. Hauber for any trespass claims, or provide a remedy for any errors or issues arising from the Surface Rights Board’s process or decision.

The Tribunal rejected Ms. Hauber’s argument that, due to the trespass by Murphy Oil, the permit amendment should not be allowed to stand as an ‘after-the-fact’ approval. The Tribunal found that, although Murphy Oil was in a state of noncompliance until the amendment was issued, the Commission had to deal with the situation by either granting the amendment or requiring Murphy Oil to move the pipeline off of Ms. Hauber’s land. The document evidence showed that the Commission gave due regard to Ms. Hauber’s submissions, and weighed the potential impacts of authorizing the amendment and leaving the pipeline in place, versus requiring the pipeline to be relocated off of Ms. Hauber’s land. The Tribunal found that, given the potential impacts of removing and re-boring the portion of the pipeline on Ms. Hauber’s land, and the limited impact that the pipeline had on her land, it was appropriate to issue the amendment with conditions that mitigate the impact on her land.

Accordingly, the appeal was dismissed.