Decision Date: February 1, 2018

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – s. 72(3); Administrative Tribunals Act – s. 31; preliminary decision; summary dismissal; pipeline; permit; jurisdiction; remedy

Olaf and Frances Jorgensen appealed a pipeline permit that the Oil and Gas Commission (“Commission”) issued to Encana Corporation (“Encana”). The permit authorized Encana to construct and operate a pipeline, subject to certain conditions, on land owned by the Appellants. Encana applied to the Tribunal for an order summarily dismissing the appeal.

In December of 2016, Encana sent an invitation to consult to the Appellants regarding its plans to construct and operate a pipeline on their land. In response, the Appellants’ representative requested additional information on the proposed pipeline. Encana responded to those questions.

In March 2017, the Commission issued the pipeline permit. Subsequently, Mr. Jorgensen asked the Commission whether the permit authorized a sump and/or temporary workspaces on the Appellants’ land. The Commission advised him, in writing, that it does not issue authorizations for associated oil and gas activities on private land, and Encana would need to arrange for access to the Appellants’ land before constructing a sump or workspaces.

On May 31, 2017, the Surface Rights Board issued an order granting Encana a right of entry to, and access across, the portions of the Appellants’ land covered by the pipeline, as well as six temporary workspaces. On June 2, 2017, the Surface Rights Board amended that order by granting Encana a right of entry to, and access over, part of the Appellants’ land for use as a sump.

On June 30, 2017, the Appellants filed their appeal with the Tribunal.

In a preliminary decision dated August 8, 2017 (Decision No. 2017-OGA-023(a)), the Tribunal held that the workspaces and sump were part of the Commission’s determination to issue the permit authorizing the construction and operation of the pipeline, and therefore, the appeal was within the Tribunal’s jurisdiction. The Tribunal also granted an extension of time to file the appeal.

In late August 2017, Encana completed the pipeline’s construction, including the restoration of the temporary workspaces. Encana did not use the sump.

In a second preliminary decision, dated September 20, 2017 (Decision No. 2017-OGA-023(b)), the Tribunal denied the Appellants’ application for a stay of the permit.

In November 2017, Encana requested that the appeal be summarily dismissed pursuant to section 31(a) and (g) of the Administrative Tribunals Act, respectively, on the basis that the appeal was beyond the Tribunal’s jurisdiction, and the substance of the appeal was moot and was dealt with in the Tribunal’s decision on the stay application.

First, the Tribunal considered whether the appeal should be summarily dismissed on the basis that the appeal was beyond the Tribunal’s jurisdiction. The Tribunal noted that summary dismissal of an appeal on the basis of lack of jurisdiction should only be done in clear cases. The Tribunal confirmed the findings in its previous preliminary decisions that the Appellants’ grounds for appeal with respect to the temporary workspaces and the sump were within the Tribunal’s jurisdiction.

However, the Tribunal noted that, for an appeal to be within its jurisdiction, the Appellants must also be seeking a remedy that the Tribunal can provide. Encana never created or used the sump, and had remediated the temporary workspaces. Even if the Tribunal varied or rescinded the permit, or sent the permit back to the Commission with directions, the Tribunal had no ability to grant a remedy that would address the sump or temporary workspaces. Any claims for damages or monetary compensation by the Appellants were beyond the Tribunal’s jurisdiction. In these circumstances, given that the Appellants’ appeal focused solely on the sump and temporary workspaces, the Tribunal concluded that the Appellants were not seeking a remedy that was within the Tribunal’s jurisdiction.

Accordingly, Encana’s application for summary dismissal was granted, and the appeal was dismissed.