Decision Date: August 11, 2020

Panel: Daphne Stancil

Keywords: Oil and Gas Activities Act – ss. 4, 72(2); permit; pipeline route; cumulative effects; due regard

Olaf Jorgensen appealed a permit issued by the Oil and Gas Commission (“Commission”) to Encana Corporation (“Encana”). The permit authorized Encana to construct and operate a pipeline that would be partially located on Mr. Jorgensen’s land northwest of Dawson Creek, BC. The pipeline would extend for 72 metres along the Jorgensens’ property, which is used for farming and is within the Agricultural Land Reserve.

Mr. Jorgensen submitted that the permit was issued without due regard to several concerns he had raised in the submission he provided to the Commission before the permit was issued. That submission raised concerns about the effects of the pipeline on the ability to farm his land, and the cumulative effects of oil and gas activities in the area. He also submitted that the Commission had not fully and transparently analyzed the economic, social and environmental impacts of the permit as required by section 4 of the Oil and Gas Activities Act (the “Act”). He maintained that the Commission should not permit any further oil and gas activities permitted in the area until it undertook a comprehensive review of existing activities in the area. He also argued that Encana could use an alternative pipeline route. On appeal, in addition to the concerns raised in his submission to the Commission, Mr. Jorgensen argued that the Commission was biased in favour of industry, and he suggested a second alternative route for the pipeline. He asked the Tribunal to rescind or amend the permit.

The Tribunal found that there was no evidence that the Commission was biased in favour of industry. The Tribunal found that the Commission’s rationale for issuing the permit showed that it gave due consideration to Mr. Jorgensen’s concerns in a balanced manner. The Tribunal also found that the Commission gave due regard to the potential environmental, economic, and social effects of the permit, consistent with its mandate in section 4 of the Act.

In addition, the Tribunal held that the phrases “cumulative effects” and “cumulative impacts” are absent from the Act. Notably, they are not mentioned in section 4 which sets out the Commission’s purposes, or section 25 which sets out the Commission’s powers and obligations when considering permit applications. Section 25(1)(b) of the Act requires the Commission to consider “the government’s environmental objectives” when considering whether to issue a permit. Those objectives, which are set out in the Environmental Protection and Management Regulation, do not include an assessment of cumulative effects related to permits.

Regarding alternate pipeline routes, the Tribunal found that the Commission gave due regard to the alternative route Mr. Jorgensen had proposed in his submission to the Commission. The Tribunal agreed with the Commission’s finding that Encana’s route was 4,000 metres shorter than Mr. Jorgensen’s alternative route, and the alternative route would result in significantly more disturbance of land. In addition, the Tribunal found that Mr. Jorgensen’s second alternative route was not proposed in his submission to the Commission, and therefore, it was beyond the scope of his appeal under section 72(2) of the Act. Even if it could have been part of his appeal, the Tribunal found that the second alternative route was significantly longer than Encana’s route and would result in more disturbance of land.

Accordingly, the Tribunal dismissed the appeal.