Decision Date: December 22, 2021

Panel: Darrell Le Houillier

Keywords: Oil and Gas Activities Act – ss. 69, 72(1); Consultation and Notification Regulation – s. 4; Administrative Tribunals Act – ss. 31(1)(a), 44; permit; eligible person; summary dismissal; jurisdiction

Ralph Apsassin appealed a permit issued by the Oil and Gas Commission (the “Commission”) to Petronas Energy Canada Ltd. (“Petronas”). The permit authorized Petronas to build a pipeline connecting a compressor site to an existing pipeline.

Mr. Apsassin owns a registered trapline in or near the area where the pipeline would be built. Mr. Apsassin claimed that he was not adequately consulted before the permit was issued, and that his Aboriginal, treaty-related, and commercial rights would be affected by the pipeline’s construction. He raised those concerns with the Commission and asked it to review the permit. The Commission concluded that Mr. Apsassin could not request a review of the permit because he was not an “eligible person” as defined in section 69 of the Oil and Gas Activities Act (the “Act”).

Mr. Apsassin claimed that the Commission had unfairly denied his request for a review and had breached his constitutional rights, and he sought to appeal the matter to the Tribunal.

As a preliminary matter, the Tribunal requested submissions from the parties on whether it had jurisdiction over the appeal. Section 72(1) of the Act provides that an “eligible person” may appeal certain “determinations” and “decisions” issued by the Commission. The terms “eligible person”, determination”, and “decision” are defined in section 69 of the Act.

First, the Tribunal considered whether Mr. Apsassin was an “eligible person” who could file an appeal under section 72(1) of the Act. The Board noted that the Consultation and Notification Regulation (the “Regulation”) defined “rights holders” as including owners of registered traplines. Section 4(1)(g) of the Regulation required permit applicants to notify and consult with “rights holders” within certain distances of proposed oil and gas activities. Section 4(1)(d) of the Regulation also required permit applicants to notify or consult with First Nations with reserve lands within prescribed distances of proposed oil and gas activities. However, neither the Regulation nor the Act designated “rights holders”, or holders of Aboriginal or treaty rights, as “eligible persons” with a right of appeal under section 72(1) of the Act. As a result, Mr. Apsassin was not an “eligible person”. Furthermore, the Tribunal rejected Mr. Apsassin’s assertion that he was either deemed, or exempted from the requirement to be, an “eligible person” through an exercise of discretion by the Commission or the Premier of British Columbia.

Next, the Tribunal considered whether the appeal related to a “decision” or “determination” that could be appealed under section 72(1) of the Act. The Tribunal found that the Commission’s letter stating that it would not consider Mr. Apsassin’s request to review the permit was neither a “decision” nor a “determination” as defined in section 69 of the Act, and therefore, it could not be appealed under section 72(1) of the Act.

Finally, the Tribunal considered whether Mr. Apsassin was asking for a remedy that the Tribunal could provide, given the Tribunal’s powers under section 72(6) of the Act and given that section 44 of the Administrative Tribunals Act states that the Tribunal has no jurisdiction over constitutional questions. The Tribunal concluded that some of the remedies that Mr. Apsassin requested were within the Tribunal’s jurisdiction. However, given that he was not an “eligible person” and that he was not appealing a “decision” or “determination”, the Tribunal was unable to provide any of the remedies he requested.

Accordingly, the Tribunal summarily dismissed the appeal due to a lack of jurisdiction, pursuant to section 31(1)(a) of the Administrative Tribunals Act.