Decision Date: February 16, 2017

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – s. 72(2); Administrative Tribunals Act – s. 31(1); preliminary decision; pipeline; permit; summary dismissal

Rodney and Kim Strasky appealed a decision of the Oil and Gas Commission (“Commission”) to issue a pipeline permit to Encana Corporation (“Encana”). The permit authorizes Encana to construct and operate a pipeline, subject to certain conditions, on land that is owned by the Appellants. The Appellants operate a farm on land that the pipeline will cross.

Encana asked the Tribunal to summarily dismiss the appeal pursuant to section 31(1) of the Administrative Tribunals Act (the “ATA”). Encana submitted that the Appellants had no standing to appeal because their grounds for appeal were not appealable matters under section 72(2) of the Oil and Gas Activities Act (the “OGAA”), and therefore, the Tribunal had no jurisdiction over the appeal. Section 72(2) of the OGAA provides that an owner of land on which an oil and gas activity is permitted may appeal a determination only on the basis that the Commission made the determination “without due regard to” either a submission previously made by the land owner, or a consultation report filed by the applicant (in this case, Encana). Encana also argued that the substance of the appeal had been appropriately dealt with by another proceeding; namely, the decision-making process of the Commission.

The Tribunal found that the Appellants had provided written submissions to the Commission and Encana before the permit was issued, and at least some of their concerns in those submissions were also expressed in their Notice of Appeal. The Notice of Appeal contained complaints about pipeline routing, Encana’s construction practices, and the impact of the pipeline on the Appellants’ farming practices. The Appellants also expressed those concerns in their previous submissions to the Commission and/or Encana. Although the Notice of Appeal did not expressly allege that the Commission failed to give due regard to the Appellants’ submissions, the evidence implied that the appeal was founded on an argument that the Appellants’ previous submissions were not given due regard by the Commission. The Tribunal noted that it is not unusual for self-represented appellants to express their grounds for appeal using language that is not parallel to the language in section 72(2) of the OGAA.

In addition, the Tribunal rejected Encana’s argument that the substance of the appeal was appropriately dealt with by the Commission’s decision-making process. The Tribunal held that the primary substance of an appeal is whether the Commission failed to give due regard to the land owner’s submissions or the proponent’s consultation report, whereas the Commission’ decision-making process is focused on whether to authorize an oil and gas activity. The Commission’s decision-making process is neither similar to, nor does it serve the same purposes as, the appeal process. The two processes are distinctly different types of “proceedings”.

Accordingly, the application for summary dismissal was denied.