Decision Date: August 25, 2017

Panel: Cindy Derkaz

Keywords: Oil and Gas Activities Act – s. 72(6); pipeline; permit; remedy; jurisdiction

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 private land, including land that the Appellants own and use for farming.

Initially, the Appellants’ main concern in the appeal proceedings was with the route of the pipeline through their land. In their opening statement at the appeal hearing, the Appellants asked the Tribunal to order Encana to move the pipeline. They also asked the Tribunal to direct the Commission to implement two new communication protocols when dealing with land owners. Specifically, the Appellants argued that Encana should have built the pipeline along an existing pipeline corridor through their land, rather than through a section of land that is used for farming. The Appellants submitted that the route chosen by Encana created an “orphan area” which will create problems for cultivating and harvesting crops, and ultimately, a financial loss in terms of time and yield for many years.

However, by the time the appeal was heard, construction of the pipeline was almost complete. The Appellants had applied to the Tribunal for a stay of the pipeline permit pending the Tribunal’s final decision on the merits of the appeal, but their application was denied (Decision No. 2016-OGA-004(b), February 17, 2017). During the appeal hearing, the Appellants acknowledged that requiring Encana to remove and relocate the newly constructed pipeline would result in much more soil disturbance on their land. Consequently, in their closing statement at the appeal hearing, the Appellants did not pursue their request that the pipeline be relocated, but they still requested that the Tribunal require the Commission to implement two new communication protocols for land owners.

The Tribunal found that, once the Appellants had abandoned their request that the pipeline be re-located, they were no longer seeking a remedy within section 72(6) of the Oil and Gas Activities Act (“OGAA”). The Appellants’ request that Commission be directed to implement two new communication protocols was outside the Tribunal’s powers under section 72(6) of the OGAA. Although the Tribunal may recommend a change in the Commission’s policy or practice, the Tribunal declined to do so in this case, because the protocols suggested by the Appellants could amount to a veto by a land owner over a proposed project.

Accordingly, the appeal was dismissed.