Decision Date: June 13, 2019

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – ss. 72(2); preliminary decision; summary dismissal; pipeline; permit; jurisdiction; due regard

Richard Graham appealed a pipeline permit issued by the Oil and Gas Commission (“Commission”) to Tourmaline Oil Corp. (“Tourmaline”). The permit authorized Tourmaline to construct and operate a pipeline, a portion of which would be located on the Appellant’s land.

In April 2018, Tourmaline initiated consultation with the Appellant regarding construction of a pipeline which would affect his property. During the consultation process, the Appellant raised several concerns with Tourmaline regarding the proposed construction on his land.

In May 2018, Tourmaline applied to the Commission for a permit to construct and operate a three segment pipeline across three parcels of privately held land, one of which is owned by the Appellant.

After the application was submitted, the Appellant made two written submissions to the Commission regarding his opposition to the proposed activity on his land. Subsequently, Tourmaline provided the Commission with written responses to the Appellant’s submissions. Also, Commission staff conducted a site visit to the Appellant’s property, which resulted in the Commission requesting that Tourmaline provide an “Erosion Mitigation Plan” with respect to the proposed work on the Appellant’s land.

In January 2019, the Commission issued the permit to Tourmaline. The Commission’s decision rationale noted that Tourmaline had consulted with the Appellant prior to submitting its application, and the Appellant had outstanding concerns with the proposed project regarding erosion/location of pipeline, devaluation of property and compensation issues, and consultation. The decision rationale addressed each of those above issues, and the Commission approved the application.

The Appellant appealed the permit. Section 72(2) of the Oil and Gas Activities Act (the “OGAA”) provides that a land owner may appeal a determination “only on the basis that the determination was made without due regard to” a submission made by the land owner in response to the permit application, or a consultation and notification report provided by the applicant to the Commission.

Tourmaline applied the Tribunal to summarily dismiss the appeal on the basis that the Appellant had raised no appealable grounds under section 72(2) of the OGAA, and therefore, the Tribunal had no jurisdiction over the appeal. Specifically, Tourmaline argued that the Appellant failed to provide any indication that the Commission did not give due regard to the issues he had raised before the permit was issued.

The Tribunal found that the Appellant’s submissions to the Commission raised several issues including concerns about current and future soil erosion, and proposed alternative pipeline routing. The Appellant’s Notice of Appeal and subsequent submissions to the Tribunal raised these issues again, along with other issues. In both form and substance, the appeal raised the issue of whether his previous submissions were given due regard by the Commission.

Consequently, the Tribunal concluded that the appeal raised the issue of whether the Commission gave due regard to the Appellant’s submissions before the permit was issued. As such, the appeal was based on an appealable ground under section 72(2) of the OGAA, and the Tribunal had jurisdiction to hear the appeal.

Accordingly, Tourmaline’s application for summary dismissal was denied.