Decision Date: June 26, 2018

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – s. 69(1)(b)(i)(B); Administrative Tribunals Act – s. 31(a); preliminary decision; summary dismissal; pipeline; permit amendment; jurisdiction; remedy

Mary Miller appealed a determination issued by the Oil and Gas Commission (“Commission”) that amended a pipeline permit held by ARC Resources Ltd. (“ARC”). The original permit authorized ARC to construct and operate a sour gas flow line with a 20-metre wide right-of-way across certain private lands, including land owned by Ms. Miller. The amendment changed part of the pipeline’s route on neighbouring land, but did not alter the route through Ms. Miller’s land.

On October 17, 2017, Ms. Miller received a letter from ARC, notifying her that ARC intended to apply for an amendment to re-route part of the pipeline through some neighbouring land. The letter advised that she could provide a written submission to the Commission regarding the proposed amendment.

On October 31, 2017, Ms. Miller sent a written submission to the Commission expressing concern that trenching the pipeline would cause topsoil erosion, and she requested that the pipeline be bored where it traversed her land.

On November 21, 2017, the Commission granted the amendment.

On December 6, 2017, Ms. Millers appealed the amendment. In her Notice of Appeal, she expressed concerns about the fact that the pipeline was trenched on her property rather than bored, and the adverse impact that this would have on agricultural soils. She also submitted that the Commission made errors with respect to her written submission. She requested that the permit be rescinded, and that the Commission improve how it communicates with land owners.

ARC requested that the appeal be summarily dismissed pursuant to section 31(1)(a) of the Administrative Tribunals Act (the “ATA”), on the basis that the appeal was not within the Tribunal’s jurisdiction. ARC argued that section 69(1)(b)(i)(B) of the Oil and Gas Activities Act (“OGAA”) provides that a land owner may appeal a permit amendment “if the amendment changes the effect of the permit on the land of the land owner.” ARC submitted that the amendment did not affect Ms. Miller’s land, and therefore, Ms. Miller had no standing to appeal the amendment. In addition, ARC submitted that the Tribunal, in deciding an appeal of the amendment, had no jurisdiction to rescind the permit.

First, the Tribunal considered whether ARC had standing to apply for summary dismissal. Ms. Miller argued that it had no standing to do so. However, the Tribunal considered the relevant provisions in the ATA and the OGAA, and found that ARC, as the permit holder and third party, may apply summary dismissal of the appeal.

Next, the Tribunal considered whether the appeal should be summarily dismissed for lack of jurisdiction. The Tribunal confirmed that summary dismissal of an appeal on the basis of lack of jurisdiction should only be done in clear cases, to ensure that appellants have an opportunity to be heard on matters that are, arguably, within the Tribunal’s jurisdiction.

The Tribunal found that this appeal was clearly outside of its jurisdiction, because Ms. Miller lacked standing to appeal the amendment. The OGAA defines appealable “determinations” in a way that limits the circumstances in which a land owner may appeal a permit amendment. In particular, section 69(1)(b)(i)(B) of the OGAA provides that a land owner may appeal a permit amendment “if the amendment changes the effect of the permit on the land of the land owner.” The amendment in this case did not change the effect of the permit on Ms. Miller’s land. Consequently, the amendment was not a “determination” that Ms. Miller could appeal, and the appeal was outside of the Tribunal’s jurisdiction under section 72(2) of the OGAA.

In addition, for an appeal to be within the Tribunal’s jurisdiction, the appellant must be seeking a remedy that is within the Tribunal’s jurisdiction to grant. In this appeal, the Tribunal had the power to rescind or vary the amendment, or send it back to the Commission with directions, as it pertained to the land of the affected land owners, which did not include Ms. Miller. Even if the Tribunal granted one of those remedies, it would not address Ms. Miller’s concerns about the permit or the effect of the pipeline on her land. Thus, the Tribunal concluded that it had no jurisdiction to grant the remedies that Ms. Miller sought, and the appeal was outside of the Tribunal’s remedial jurisdiction under section 72(6) of the OGAA.

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