Decision Date: April 13, 2016

Panel: Jeffrey Hand

Keywords: Oil and Gas Activities Act – s. 72(2); road right-of-way; permit; due regard

Nine individuals (collectively, the “Appellants”) appealed decision of the Oil and Gas Commission (the “Commission”) to issue a permit authorizing Pacific Northwest LNG Ltd. (“PNW”) to construct, operate and maintain an oil and gas road on a parcel of land owned by the Appellants. The Appellants’ land is located south of Port Edward, BC, and immediately east of Lelu Island.

PNW is the general partner of the Pacific Northwest LNG Limited Partnership, which was formed for the purpose of constructing, owning and operating a liquefied natural gas facility on Lelu Island. A railway line runs in a north/south direction between the Appellants’ land and Lelu Island. PNW proposed to access Lelu Island from an existing public road on the mainland to the east of the Appellants’ land, by building a road across the Appellants’ land and, from there, building a bridge over the railway line and a slough, onto Lelu Island.

In late 2014, PNW began discussions with the Appellants regarding this plan. In December 2014, PNW sent an invitation to consult to the Appellants, advising them of its intention to apply for a permit to build the road.

On January 6, 2015, the Appellants provided a written submission to PNW, expressing a number of concerns about the proposed road.

On January 19, 2015, representatives of PNW met with some of the Appellants to discuss the location of the road.

On January 22, 2015, PNW provided digital drawings of the proposed roadway to one of the Appellants and a real estate appraiser who had been retained by the Appellants.

In February 2016, PNW applied to the Commission for the road permit. Included with the application was a cover letter indicating that the road would be 208 metres long, 13.3 metres wide, and within a construction corridor 103 metres wide.

On May 12, 2015, the Commission wrote to PNW asking for clarification as to why it sought a right-of-way of 103 metres in width for a road that would only be 13.3 metres in width. In response, PNW advised that it could reduce the right-of-way to 75 metres wide, but this width was necessary to support a fill embankment for the road.

On June 2, 2015, the Commission asked PNW to provide a technical rationale explaining why this amount of fill was necessary. In response, PNW advised that this volume of fill was required to build the road up to the elevation needed for clearance over the railway line. PNW explained that the bridge needed to be at least 11 metres above the railway line, to provide sufficient clearance for railway cars. PNW also provided the Commission with a copy of the design drawings that were provided to the Appellants on January 22, 2015. PNW subsequently amended it road permit application by reducing the maximum width of the right-of-way to 75 metres.

On July 17, 2015, the Appellants provided a second written submission expressing concerns about the proposed road.

On a July 24, 2015, the Commission issued the road permit to PNW. The permit includes authorization for a 75-metre wide right-of-way based on the design drawings that were submitted by PNW. As a condition of the road permit, PNW was not authorized to begin construction of the road until the primary oil and gas activity (i.e., the proposed liquid natural gas facility on Lelu Island) has been authorized by the Commission.

The Appellants appealed the road permit on the basis that the size of the right-of-way was excessive, the embankment was unnecessary, and the Commission failed to properly consider whether a 75-metre wide right-of-way was necessary to support construction of the road. The Appellants requested an order reducing the width of the right-of-way, or alternatively, an order remitting the matter back to the Commission for reconsideration.

The Tribunal considered whether the Commission gave “due regard” to the Appellants’ concerns before issuing the road permit, as required by section 72(2) of the Oil and Gas Activities Act. The Tribunal reviewed the concerns that were expressed by the Appellants in the two written submissions they provided to the Commission before the road permit was issued. The Tribunal noted that none of those concerns related to the width of the road right-of-way. The Tribunal found that the Commission’s evidence showed that it gave due regard to each of the Appellants’ concerns, and the Commission went further by asking PNW to explain the proposed width of the right-of-way. The Tribunal also found that the design drawings that PNW had provided to the Appellants and the Commission were detailed enough to understand the size and boundaries of the fill embankment that was necessary to increase the road elevation over the railway line. In addition, the Tribunal found that the Appellants provided no evidence to establish that the road could be safely constructed with a smaller embankment, or that the embankment was unnecessary to safely construct the road.

Accordingly, the appeal was dismissed.