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Oil and Gas Appeal Tribunal

Fourth Floor, 747 Fort Street Victoria, British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1

DECISION NOS. 2011-OGA-006(b) & 2011-OGA-007(b)

In the matter of two appeals under section 72 of the Oil and Gas Activities Act, .B.C. 2008, c. 36.

NT

S

BETWEEN: Marilyn Gross APPELLA

AND: Oil and Gas Commission RESPONDENT

AND: Murphy Oil Company Ltd. THIRD PARTY

BEFORE: Appeal Tribunal Alan Andison, Chair

mber Tony Fogarassy, Member

PLACE:

APPEARING: For the Appellant: t:

the Third Party:

J. Darryl Carter, Q.C., Counsel Sara Gregory, Counsel Rick Williams, Counsel

[1] Marilyn Gro is by Dean Zimmer, Operations erati gated decision-maker for the Oil and Gas Commission (the “Com issued to Murphy Oil Company Ltd. (“Murphy Oil”), and authorize the drilling,

nd flaring of two exploratory horizontal wells on land that is owned by the Appellant.

rm,

e the determination, as applicable.

A Panel of the Oil and Gas

Monica Danon-Schaffer, Me

DATE: September 14 and 15, 2011

Fort St. John, BC

For the RespondenFor

APPEALS

ss appeals two permitsManager (the “Op

sued on April 11, 2011, ons Manager”) and dele

mission”). The permits were

operation a

[2] The Oil and Gas Appeal Tribunal (the “Tribunal”) has the authority to hear the appeals under section 72 of the Oil and Gas Activities Act, S.B.C. 2008, c. 36 (the “OGAA”). Section 72(6) of the OGAA gives the Tribunal the power to confivary or rescind the determination or review decision being appealed, or send the matter back with directions to the review official who made the decision or to the person who mad

DECISION NOS. 2011-OGA-006(b) & 2011-OGA-007(b) 2

[3] The Appellant requests that the permits be cancelled, and that there be a fuand fair consideration of her concerns before any new determinations are made.

ll

ACKGROUND

r 11, 2008, Murphy Oil and the Appellant signed a surface lease ion to parts of the Appellant’s land that Murphy Oil sought to use

il

rphy Oil decided to apply for permits to drill two additional

18, 2010, Murphy Oil notified the Appellant of its

ing of the two new wells. Attached to the letter is a map

r,

sultation and Notification AA and

der section 24(1)(c) of the OGAA, garding

ants,

Carter, sent a letter to Murphy Oil with a copy to

, 2010 for reply.

B

[4] The Appellant owns land west of the City of Dawson Creek, in northeastern British Columbia. No one resides on her land.

[5] On Octobeagreement in relatfor the drilling and operation of a vertical well, and to construct and use an access road to the well pad.

[6] On October 16, 2008, the Commission issued a permit authorizing Murphy Oto drill and construct the vertical well and build the access road. That permit is not the subject of these appeals.

[7] In mid-2010, Muhorizontal exploratory wells using the existing well pad and access road on the Appellant’s land.

[8] By a letter dated August proposal to construct, drill, complete and flare two horizontal wells, and to use the existing access road. The letter indicated that permanent production equipment and a sour gas gathering pipeline would be constructed after the successful completion and testshowing the proposed location of the new wells.

[9] On September 18, 2010, representatives of Murphy Oil met with the Appellant’s daughter, Ellen Gross and the Appellant’s legal counsel, J. Darryl CarteQ.C., to discuss the proposed new wells.

[10] On October 4, 2010, the OGAA and the ConRegulation, B.C. Reg. 279/2010 (the “Regulation”), came into force. The OGthe Regulation established new consultation and notification requirements for permit applicants. Murphy Oil’s applications were subject to those requirements. One of the new requirements was that, unapplicants must provide “a written report, satisfactory to the commission, rethe results of the consultations carried out or notification provided under section 22, if any.” Section 22(5) of the OGAA provides that persons other than applicsuch as land owners, may make a written submission to the Commission with respect to a proposed application.

[11] By a letter dated October 26, 2010, Murphy Oil invited the Appellant to provide written comments within 21 days, to Murphy Oil and/or the Commission, regarding the proposed new wells.

[12] On November 17, 2010, Mr. the Commission. The letter states:

I confirm that I act on behalf of Ms. Gross and her daughter... and have a copy of your letter of October 26


I also confirm that we wish to discuss this matter further regarding our concerns, including the following:

irst well on the site resulted

rth property line, osition that a

ite

t to be able to review your Emergency Response Plan and will of

specific plans for future pipelines mentioned in your

[13] ic Engageme . Carter, advising that the nt, “if a ”.

ed to Mr. Carter’s November 17, 2010 letter, as follows:

ill be provided to you.

the site resulted in

• We would like to see a copy of your OGC application, • We would like to know if the drilling of the f

in a dry hole, • We would like relocation of the access road to be considered since it

presently does not abut the no• We would like a complete explanation regarding your p

replacement lease was required due to non-registration of the initial lease,

• We wish to obtain your agreement regarding the new and amended lease terms submitted to you by Ellen Gross,

• We do not accept that there is sufficient area within the existing wellsto accommodated [sic] all the facilities necessary for additional wells,

• We wanneed to know how you are proposing to deal with egress in the eventan emergency,

• We want to know if you have completed an environmental assessment report, especially considering that the watershed around the wellsite runs into the City of Dawson Creek water supply,

• We would want to see limits imposed on flaring, and • We want to see

letter.

On November 18, 2010, Corey Jonsson, the Commission’s Manager of Publnt and Dispute Resolution, sent a letter via email to Mr

Commission required a representation agreement, signed by the Appella land owner wishes to transfer their rights under the OGAA to another person

[14] On November 19, 2010, Mr. Carter sent an email response to Ms. Jonsson, stating as follows:

Ms. Gross is not transferring her rights to me. She has asked me to act as counsel on her behalf. You’ll have to take my word on that.

[15] In a letter dated January 4, 2011, Sheldon Reeves, Surface Landman for Murphy Oil, respond

Darryl: in response to your letter of Nov 17, 2010; Murphy Oil Company hereby provides the following:

1) We would like to see a copy of your OGC application:

Murphy Oil Company Ltd has not applied for these wells at this time; we are completing the 21 days consultation/notification process; when application is made a copy w

2) We would like to know if the drilling of the first well ona dry hole:


The drilling of the first well was a vertical well from which studies indicated there is potential for horizontal wells to follow. This well may be

3)

the re it is; as no further clearing has taken place there

4)

ease replaces the former and

5)

illing to discuss amended

6) ellsite ate all facilities necessary for additional wells.

; if further

7)

. There are no Zone, therefore

8) t nsidering the watershed around the wellsite runs into the City of

d production. Wellsite will be bermed ill

nt.

tied in when the horizontal wells are tied in.

Re-location of the access road to be relocated as it does not abut the north property line:

This original lease/survey followed bush/field lines; that is the reason access is located wheis no reason to create a further footprint and destroy more forest growth.

Explanation regarding your position that a replacement lease was requireddue to non-registration of the initial lease:

Murphy uses a replacement lease mainly for the “use” clause; so that instead of an “exhibit” or “addendum” one lit is much easier for recordkeeping. Either an amendment or new lease would be standard practice. This surface lease/survey plan has been registered with land titles in British Columbia.

Adding the new amended lease terms submitted to us by Ellen Gross:

Murphy has a surface lease in place; but are wlease terms and add them to the lease as a schedule A or similar instrument.

We do not accept that there is sufficient area within the existing wto accommod

Murphy will remove the existing wellhead in order to drill the first two HZwells; which gives us enough room; this is common practicewells are drilled we will propose an expansion to the NE.

Emergency response plan and dealing with egress:

Murphy has a Corporate Response Plan that we will utilizeresidents or public roads in the Emergency Responsethere are no egress issues for area residents. During the drilling phase; Murphy will be drilling thru 2 slightly sour zones; which are cased off andproduction will be from the Montney formation which is “sweet gas”; the emergency planning zone for completions and production is within the wellsite.

We want to know if Murphy has completed an environmental assessmenreport; coDawson Creek water supply:

No assessment is required at this time; all OGC rules will be followed during drilling; completions anduring drilling and production; and any production equipment on site whave double walled tanks and will be bermed for secondary containme


9) e would like to see limits on flaring:

ments. Should these wells be will

10)

ards a padsite about 1.6 km away

I h rification

Murphy Oil had not yet filed permit applications, but

y Oil applied to the Surface Rights Board for a right

d its permit applications to the ation

d

e two well permits to Murphy

2, 2011, Mr. Carter learned from the Surface Rights Board that the f

ent an email to Mr. Carter stating, in part,

not provide the necessary authorization enabling you to act on behalf

W

Murphy follows the OGC flaring requirecapable of economic production, pipelines will be installed and flaring be reduced by incorporating in line testing where feasible.

Specific plans for the future pipelines:

A future pipeline would go to the NE towor we have a secondary route to the SW. This area is in preliminary stages and it will be a year or two until any pipeline plans are formalized; depending on other well production; riser sites placement etc.

ope I was able to answer your questions; if you need further claplease contact myself.

[16] The letter indicates thatcopies of the applications would be provided to Mr. Carter once they were made. However, Murphy Oil did not provide copies of the applications to Mr. Carter until after the permits were issued.

[17] On March 7, 2011, Murphof entry order, authorizing it to enter the Appellant’s land to conduct activities associated with the proposed new wells. Murphy Oil also sought a determination of the amount of compensation it should pay to the Appellant for using her land. Murphy Oil sought the order and determination because it and the Appellant were unable to agree on access and compensation.

[18] On March 11, 2011, Murphy Oil submitteCommission. With its applications, Murphy Oil provided a report on the consultand notification it had conducted, as required under section 24(1)(c) of the OGAA. The report indicates that written submissions were received from the Appellant and another land owner, and there were outstanding concerns associated with the permit applications. Included with the report are copies of correspondence regarding the applications, including Mr. Carter’s November 17, 2010 letter, anMurphy Oil’s January 4, 2011, reply to Mr. Carter.

[19] On April 11, 2011, the Commission issued thOil. On the same day, the Commission sent a letter to the Appellant at her homeaddress notifying her that the permits had been issued. The letter was not copied to Mr. Carter.

[20] On May permits had been issued. He sent an email to the Commission requesting copies othe permits, and asking why the Commission had not responded to the Appellant’s concerns about the permit applications.

[21] On May 3, 2011, the Commission sas follows:

You didof Ms. Gross in this process therefore any correspondence from you does not constitute a written response from Ms. Gross. We did not receive any written concerns from the landowner herself.


Murphy Oil replied to your letter on January 6, 2011 and appeared to answer each of your questions. I have attached both letters in this email for reference.

t

tify tter, Ms. Gross was invited to

[22] part:

ndowner and it treats it as if it does not exist! …

f November 18, 2010

d r

too that you accepted Murphy Oil’s reply dated January 6, 2011 as a plete resolution of my client’s concerns without even attempting to contact

[23] Carte ail.

m

cluding a right to use the existing access road to drill and operate the

he Appellant. The Notice of Appeal included an application for an

d a decision granting the Appellant’s application for an extension of

No further correspondence was received from you or Ms. Gross to indicate thaany concerns were outstanding. These factors were considered during the review of the applications prior to the decision.

Finally, on April 11, Ms. Gross was sent a letter from the Commission to noher of the approval of the well permit. In that lecontact me if she had any further questions. I have not heard from Ms. Gross. I invite either of you to contact me if you have further questions.

On May 3, 2011, Mr. Carter sent an email to the Commission that states, in

That is pretty appalling. The OGC receives correspondence from a lawyer for ala

There is no legal requirement that a lawyer has to provide documentation to act on behalf of a landowner. Besides your letter oreferred to a landowner’s transferring rights to another person or entity. In my email of November 19, 2010 I advised you that Ms. Gross was not transferring her rights to me. I also told you that you’d have to take my worfor the fact that she had asked me to act as counsel on her behalf. You nevereplied to say that you did not accept my position. In fact you did not respond at all.

…

I note comme. …

Later on May 3, 2011, the Commission sent copies of the permits to Mr. r via em

[24] On May 5, 2011, Mr. Carter received copies of the permit applications froMurphy Oil.

[25] On May 10, 2011, the Surface Rights Board granted a right of entry order toMurphy Oil, innew wells.

[26] On May 15, 2011, Mr. Carter filed a Notice of Appeal regarding the permits, on behalf of textension of time to file the appeals because the 15-day statutory appeal period had expired.

[27] On June 15, 2011, after receiving written submissions from all parties, the Tribunal issuetime to file the appeals (Decision Nos. 2011-OGA-006(a) & 2011-OGA-007(a)).

[28] During the appeal proceedings, the Appellant raised a number of concerns regarding the permits. The Tribunal has summarized those concerns as follows:


• the Commission ignored Mr. Carter and his November 17, 2010 letter settinout the Appellant’s concerns regarding Murphy Oil’s proposed activities;

g

e Appellant’s property, and the current access road

d a right to enter the Appellant’s property to drill the

necessary for the new wells;

h

f Dawson Creek water supply;

the appeals and request that the s were

a standard of “patent unreasonableness”.

tions

se appeals raise the following issues:

1. Whether an appeal filed by a land owner may be conducted as an appeal de deference to the Commission’s

ission that was previously made by the

• the Appellant did not receive copies of the permit applications until after the permits were issued;

• the access road should be re-located next to the north property line so that itdoesn’t cut through thshould be removed;

• the Commission made its decisions based on the incorrect assumption thatMurphy Oil already hanew wells;

• there is insufficient area within the existing well pad to accommodate all of the facilities

• Murphy Oil’s Emergency Response Plan is inadequate in terms of dealing witegress in the event of an emergency;

• no environmental assessment report was completed, although the watershed around the well site runs into the City o

• there should be limits on flaring; and

• Murphy Oil should disclose specific plans for the future pipeline.

[29] The Commission and Murphy Oil opposeTribunal confirm the permits. They submit that the Appellant’s concerneither given due regard by the Operations Manager or are outside of the scope ofthe appeals. They also submit that section 72(2) of the OGAA limits the scope ofland owner appeals, and that the Tribunal has no jurisdiction to conduct a new hearing of the matters under appeal.

[30] Further, Murphy Oil argues that the Tribunal is limited to reviewing the Commission’s determinations based on

[31] In addition, the Commission applied to the Tribunal for an order that porof Murphy Oil’s consultation report, which was submitted as evidence during the appeal hearing, be received to the exclusion of the public pursuant to the Tribunal’s Rule 50.

ISSUES

[32] The

novo, and whether the Tribunal must givedetermination in an appeal.

2. Whether the Commission’s determinations to issue the permits were madewithout due regard to a submAppellant or the consultation report that Murphy Oil submitted to the Commission.


3. What is the appropriate remedy in the circumstances?

4. Whether certain portions of Murphy Oil’s consultation report should be ceived to the exclusion of the public, pursuant to the Tribunal’s Rule 50.

to 33, 34 (3) and (4), 35 to 42, 44, 46.3, 47 to 57 and 59 to 61 of the Administrative Tribunals Act apply to the appeal tribunal.

sion to the

report, satisfactory to the commission, regarding the results of 2, if

69 (1)

“de

ct to a land owner of land on which an oil and gas activity is to be carried out under this Act,

the commission

t, if the amendment changes f the land owner, and…

72 (1) Subject to s the appeal tribunal

(a) a decisi o

termination, if the eligible person has not, by the date the person

(2) Aconly

re

RELEVANT LEGISLATION

[33] The following sections of the OGAA are relevant to this appeal:

20 Sections 1 to 22, 24, 26

22 (5) A person, other than the applicant, may make a written submiscommission with respect to an application or a proposed application under section 24.

24 (1) Subject to subsection (4), a person may apply to the commission for a permit by submitting, in the form and manner the commission requires,

(c) a written the consultations carried out or notification provided under section 2any,

In this Part:

termination” means

(b) with respepermitted(i) a decision made by

(A) under section 25 to issue a permit to carry out an oil and gas activity on the land of the land owner, and

(B) under section 31 to amend a permithe effect of the permit on the land o

ubsection (2), an eligible person may appeal to

on made under section 71, if the eligible person was a party tthe review under that section, and

(b) a decommences the appeal, applied under section 70 (1) for a review of the determination.

land owner of land on which an oil and gas activity is permitted to be arried out under this Act may appeal a determination under this section

on the basis that the determination was made without due regard to

(a) a submission previously made by the land owner under section 22 (5) or 31 (2) of this Act, or

(b) a written report submitted under section 24 (1) (c) or 31 (6).


...

(6) On a n (1), the appeal tribunal may

r the determination, or

ial who made

DISCUS

1. Whet al filed by a land owner may be conducted as an appeal de novo, and whether the Tribunal must give deference to the

tion in an appeal.

the phrase “due regard” in GAA equates to due process.

der section 22(5) of the OGAA

on

ort to mind when making a determination;

ny

being

on submits that section 72 of the OGAA does not grant

n appeal under subsectio

(a) confirm, vary, or rescind the decision made under section 71 o

(b) send the matter back, with directions, to the review officthe decision or to the person who made the determination, as applicable.

SION AND ANALYSIS

her an appe

Commission’s determina

Parties’ submissions

[34] The Appellant’s submissions focused on the second and third issues that are addressed in this decision. However, she submits thatsection 72(2) of the O

[35] The Commission submits that section 72(2) of the OGAA limits the scope of appeals filed by land owners. Specifically, that section limits such appeals to addressing whether the Commission’s determination was made without “due regardto” a submission previously made by a land owner unor the applicant’s written report submitted under section 24(1)(c) of the OGAA. The Commission argues that the phrase “due regard”, in its context and basedits plain meaning, is best interpreted as addressing the sufficiency or reasonableness of the Commission’s determination.

[36] The Commission submits that the duty to give “due regard to” a submission previously made by a land owner or the written report submitted by an applicant requires the decision-maker to:

• exercise that duty on his/her own behalf (and not delegate it);

• consciously bring the submissions made by the land owner and/or the applicant’s consultation rep

• consider such submissions and/or the written report as well as acountervailing factors that are relevant in the circumstances of the determination; and

• fulfill the duty rigorously and with an open mind as an application isconsidered (and not after a determination has been made).

[37] Finally, the Commissithe Tribunal the jurisdiction to conduct a new hearing of the applications made byMurphy Oil.

[38] Murphy Oil submits that the scope of a land owner’s appeal is limited to the grounds set out in section 72(2) of the OGAA. In this case, the Appellant’s appeals are limited to a consideration of whether the Commission gave due regard to her


written submission. Murphy Oil submits that any considerations of whether the consultation and notification process was complied with, or whether the land owner should have been given copies of the permit applications or been given time to make a further submission, are beyond the scope of the appeals.

[39] In addition, Murphy Oil submits that the phrase “without due regard” has been interpreted very narrowly by the courts, and has been equated to the “patently unreasonable” standard of review. In support of those submissions,

similar arguments in another appeal, dings on this issue are set out at paragraphs 37 to 58 in

d Gas Commission, Decision No. 2011-OGA-005(b), issued

y party in an appeal, are

ine

n to

ners as edies

o oes

the

s

rd

Murphy Oil refers to two judicial decisions.

Tribunal’s findings

[40] The Tribunal recently considered veryand the Tribunal’s finDaniel Kerr v. Oil anDecember 12, 2011 [Kerr]. The Tribunal’s findings on the jurisdictional issue are summarized in paragraphs 57 and 58 of Kerr, as follows:

[57] In summary, after considering the applicable sections of the OGAA andthe Administrative Tribunals Act, the Tribunal finds that none of the Tribunal’spowers and procedures, or the procedural rights of andifferent between appeals filed by land owners and those filed by other eligiblepersons. Furthermore, the Tribunal finds that its statutory powers and procedures are inconsistent with the notion that its jurisdiction in a land owner appeal is limited to reviewing the Commission’s determination for errors on the record. Any party in an appeal may make submissions as to facts, law andjurisdiction, may call and examine or cross-examine witnesses, and may present evidence and submissions that are relevant to the issues in the appeal. The Tribunal may hear submissions from interveners, which would not have been available to, or have been considered by, the Commission. In addition, the Tribunal has the power to question witnesses, and to determwhether the submissions and evidence are sufficient to disclose fully and fairly all matters relevant to the issues in the appeal. It also has broad discretioreceive and accept information that the Tribunal “considers relevant, necessary and appropriate”, whether or not the information would be admissible in a court of law. Finally, the remedies available to the Tribunal under section 72(6) of the OGAA are the same for appeals by land owthey are for those that are filed by other eligible persons, and the remindicate that the Legislature did not intend to limit the Tribunal to holding hearings on the record. The relevant provisions of the OGAA and the Administrative Tribunals Act clearly demonstrate the Legislature’s intention tgive the Tribunal flexibility in how it handles appeals. While the Tribunal dnot have the express power to conduct an appeal as a new hearing of matter, its powers and procedures are indicative of a hybrid appeal process that is more like an appeal de novo than a true review on the record.

[58] The Tribunal finds that the Legislature intended for appeals of questionregarding oil and gas activities to come before the Tribunal, and for the Tribunal to have the authority to consider those matters from its own specialized perspective, with the courts providing a supervisory role over the Tribunal. The Tribunal may consider the decision under appeal, the reco


before the original decision-maker, any relevant new evidence, and submissions on the facts, law and jurisdiction. The only limiting factor is in respect of the grounds for appeal. Further, there is no indication that the Legislature intended the Tribunal to show deference to the Commissideterminations.

On the specific question of whether the Tribunal owes any deference to thmission’s findings, the Tribunal found as follows at paragraph 43 of Kerr:

on’s

[41] e Com

tion t

to

ecify

[42] and t .

in

e

d

ons.

viously made

by the Appellant or the consultation report that Murphy Oil submitted

For further guidance on the nature of land owner appeals, the Tribunal has considered the relevant sections of the Administrative Tribunals Act, which apply by virtue of section 20 of the OGAA. It is important to note that sec20 of the OGAA specifies the sections of the Administrative Tribunals Act thaapply to the “appeal tribunal”, which is defined in section 1(2) of the OGAA mean the Tribunal. Section 20 does not specify that any sections of the Administrative Tribunals Act apply to the Commission. Furthermore, section 59 of the Administrative Tribunals Act sets out the standards of review that a court must apply when reviewing the Tribunal’s decisions. It does not spthat the Tribunal must apply any standard of review to determinations of the Commission in an administrative appeal. Consequently, the Tribunal rejects CNRL’s submission that section 59 of the Administrative Tribunals Act indicatesan intention that the Tribunal must show deference to the Commission’s determinations.

The Tribunal’s findings in Kerr are equally applicable to the present appeal, he Tribunal adopts those findings for the purposes of deciding this appeal

[43] Based on the findings above, there is no need to discuss what standard of review the Tribunal should apply to the Commission’s determination in an appeal. It is clear from the legislation that the Tribunal is not limited to reviewing the Commission’s determinations for errors on the record, and the Tribunal owes no deference to the findings of the decision-maker below. The Tribunal does not act inthe same type of role as a court in a judicial review proceeding. As discussed Kerr, section 32 of the Administrative Tribunals Act states that a party “may maksubmissions as to facts, law and jurisdiction.” The Tribunal is a specialized administrative tribunal, and is equipped to make factual findings by utilizing technical expertise that courts do not possess. In addition, the Tribunal may decidequestions of law and jurisdiction, such as the issues of procedural fairness annotification that have been raised by the Appellant. The courts provide a supervisory role over the Tribunal, and section 59 of the Administrative Tribunals Act sets out the standard of review that the courts apply to the Tribunal’s decisi

[44] Finally, the Tribunal finds that issues of consultation and notification are procedural issues which are legal questions that properly fall within the Tribunals jurisdiction and are, therefore, within the scope of these appeals.

2. Whether the Commission’s determinations to issue the permits weremade without due regard to a submission that was pre

to the Commission.


Parties’ submissions

[45] The Appellant submits that the whole process leading to the issuance of the and the Commission made no meaningful attempts to consult her concerns. She submits that the Commission failed to

py of those applications. Murphy Oil agreed to provide copies of

issions.

f agement and Dispute Resolution] replied to Mr. Carter, outlining

e

permits was tainted, with her and address provide her with a copy of the permit applications, it refused to consider Mr. Carter’s November 17, 2010 letter, and it issued the permits without considering her concerns.

[46] The Appellant submits that, under section 22(5) of the OGAA, she was entitled to make a written submission on Murphy Oil’s permit applications, but shewas not given a cothe applications, but it only did so after the permits were issued, and the Commission refused to disclose the applications. The Appellant submits that a person who is entitled to make written submissions regarding a permit application should be given a copy of the application so they can make informed subm

[47] The Appellant also submits that the Commission ignored Mr. Carter’s November 17, 2010 letter, and failed to consider the Appellant’s submissions. In support of those submissions, she refers to an April 8, 2011, file note written by a Landowner Liaison with the Commission. The file note was provided to the Operations Manager with Murphy Oil’s consultation and notification report, and it states, in part:

Ms. Gross’ lawyer, Darryl Carter, sent a letter to Murphy on November 17, 2010, with a copy to the OGC. Corey Jonsson [the Commission’s Manager oPublic Engthe requirements for a representation agreement in order for Mr. Carter to act on behalf of his client for the purposes of OGAA. Mr. Carter indicated that Ms. Gross was not transferring her rights to him. The landowner’s daughter, Ellen Gross, was copied on these emails.

The Commission has not received anything in writing from Ms. Gross. Sincshe is not transferring her rights to Mr. Carter for the purposes of OGAA, this letter does not constitute a written reply from the landowner. Regardless,

[48] April 11, 2011, er, who was the delegated decision-maker that consid urphy Oil’s permit applications. That report states, in

ents for a representation agreement in order for Mr. Carter to act

s.

Murphy responded to Mr. Carter’s letter. An application has been made to the Surface Rights Board involving Murphy and Marilyn Gross.

[underlining added]

The Appellant also refers to a Project Description Report dated by the Operations Managered and approved M

part, as follows:

Ms. Gross’ lawyer, Darryl Carter, sent a letter to Murphy on November 17, 2010, with a copy to the OGC. Corey Jonsson replied to Mr. Carter, outliningthe requiremon behalf of his client for the purposes of OGAA. Mr. Carter indicated that MGross was not transferring her rights to him and did not confirm that he was representing her in the OGAA process. The landowner’s daughter, Ellen Gross, was copied on these emails. The Commission has not received anything in


writing from Ms. Gross. Since she is not transferring her rights to Mr. Carter for the purposes of OGAA, this letter does not constitute a written reply from the landowner. Regardless, Murphy responded to Mr. Carter’s letter. An application has been made to the Surface Rights Board involving Murphy and Marilyn Gross.

In his letter, Mr. Carter did outline the following concerns:

1. To see a copy of the application made by Murphy Oil Company to the

).

planation regarding Murphy’s position that a replacement ase.

area to accommodate the drilling

of an

een Murphy Oil Company and Ellen Gross outlining

ompleted environmental assessment report.

er dated esponse letter to Mr. Carter and

Commission. 2. To know if the first well was successful or not (dryhole3. Relocation of the existing access road. 4. A complete ex

lease was required due to non registration of the initial le5. That the existing lease lacked sufficient

of additional wells. 6. A review of the response plan to deal with egress in the event

emergency. 7. The agreement betw

the amended terms for the additional wells. 8. To review a c9. Limits imposed on flaring. 10. Review plans for future pipelines.

Murphy Oil Company responded to Mr. Carter’s concerns in a lettJanuary 4 , 2011. th I have reviewed the raccept the answers provided by Murphy Oil Company to be acceptable for those items that fall within the jurisdiction of the Commission with the exception of item 9.

[underlining added]

[49] In addition, the Appellant refers to an email dated April 15, 2011, from the Com of the Surface Rights Board. It states, in part:

[50] concplan may be on her land.

e

mission, to the Chair

The Commission received applications for two Murphy Oil wells…. No operational interests were brought forward by the landowner, Marilyn Gross. The applications for these wells have been approved.

The Appellant submits that the Commission did not address her specific erns about the location of the access road, or the emergency planning zone and the need to plan for egress by non-residents who

With regard to flaring, she submits that the Commission put conditions in the permits but did not take submissions from the Appellant respecting what those conditions should have been. She further argues that her concerns regarding future developments of additional wells and pipelines were not addressed.

[51] Regarding the access road, she submits that it was not situated on a pre-existing seismic line, contrary to Murphy Oil’s submissions. She argues that shshould not have to accept the road in its current position.


[52] In the appeal proceedings, the Appellant raised an additional concern thatwas not part of Mr. Carter’s November 17, 2010 letter. The Appellant submits thathe Commission made its determinations based on the inco

t

rrect assumption that urphy Oil already had a right to enter the Appellant’s property to drill the new ells. The Appellant notes that the Surface Rights Board granted a right of entry

uences. The

o release the information; in this case,

dry

drilling, not the

ion’s

regulatory requirements and the number of residences in the area;

e local the proposal without an

ure if mission for a pipeline permit.

question is irrelevant to the Commission’s determination, and in this case, the Operations Manager did not assume that Murphy Oil had access to the Appellant’s property.

Mworder to Murphy Oil on May 10, 2011, after the permits were issued.

[53] The Commission submits that, before the permits were approved, the Operations Manager reviewed and considered the information provided by land owners, Murphy Oil, and Commission staff. The Commission acknowledges that some of its staff misunderstood that Mr. Carter represented the Appellant as her legal counsel, but it submits that the misunderstanding had no conseqCommission submits that the Operations Manager considered the consultationreport submitted by Murphy Oil, which included Mr. Carter’s November 17, 2010letter setting out the Appellant’s concerns.

[54] Regarding the specific concerns raised in the November 17, 2010 letter, the Commission submits that:

• it has a duty to protect private information including permit applications, unless the applicant gives permission tMurphy Oil indicated that it would provide the applications to Mr. Carter but that did not occur due to an oversight by Murphy Oil;

• the question about whether the first well drilled on Ms. Gross’ land was a well was irrelevant to the Commission’s decision;

• the concern about the location of the access road was irrelevant to the Commission’s decision, because the permits only authorizelocation of the access road; a permit holder may apply for a right of entry from the Surface Rights Board, not the Commission;

• the concern about the replacement lease was irrelevant to the Commissdecision;

• the Commission considered that the proposed activities could be accommodated using the existing well site;

• the Commission considered the Emergency Response Plan to be appropriate given the

• Murphy Oil did not complete an environmental assessment, and thgovernments in the area were satisfied with environmental assessment;

• the Commission addressed flaring in the Operations Manager’s report dated April 11, 2011, and in the permits; and

• the Appellant’s concerns about a pipeline would be relevant in the futMurphy Oil applies to the Com

[55] In addition, the Commission submits that the question of whether an applicant for a permit has access to the land in


[56] Murphy Oil submits that Mr. Carter made a written submission on the Appellant’s behalf, pursuant to section 22(5) of the OGAA, in which he outlined the

t copies

t

that the existing

val

il submits that using the existing

at

lant

es by,

Appellant’s concerns. Murphy Oil submits that its January 4, 2011 letter to Mr.Carter responded to each of those concerns. Murphy Oil further submits thaof Mr. Carter’s letter, and Murphy Oil’s response letter, were included in the consultation report that was provided to the Commission, and the Commission considered those submissions in making its determinations.

[57] Regarding the Appellant’s concerns about the access road, Murphy Oil submits that its applications for the present permits did not seek authorization to construct an access road, and no authorization from the Commission was necessary to use the existing access road. The existing access road was part of Murphy Oil’s 2008 application to the Commission, which was considered and approved at thatime. Murphy Oil submits that the Commission’s 2008 determination is not the subject of the present appeals. Moreover, Murphy Oil argues access road was built along a route that was agreed to and approved by the Appellant, and she agreed to a surface lease and compensation for the road in 2008. Murphy Oil submits that any damages arising from the location of the existing access road were addressed in the compensation previously agreed to, andif there is any additional damage that was not compensated, then that matter is within the Surface Rights Board’s jurisdiction.

[58] In addition, Murphy Oil submits that the route of the existing access roadfollowed a path that was cleared for an old seismic line, which avoided the remoof excess trees. Murphy Oil maintains that, if it had agreed to the Appellant’s request to build a new access road in a different location, it would have had to apply to the Commission for approval, and the Commission may not have approved construction of a new road because the Commission must balance environmental,economic and social considerations. Murphy Oaccess road minimizes any environmental impacts and soil disturbance.

[59] Regarding the Appellant’s concern that the permit applications were not provided to Mr. Carter until after the permits were issued, Murphy Oil submits ththere is no requirement for it to provide copies of applications to land owners, but it agreed to provide copies once they were filed. It also acknowledges that it failed to do so, due to an administrative oversight. Murphy Oil submits that copies were provided to Mr. Carter as soon as the matter was brought to its attention. Moreover, Murphy Oil submits that the information provided to the Appelthrough the consultation process was more comprehensive than that in the applications, and therefore, the Appellant would not have raised further issues or concerns if Murphy Oil had disclosed copies of the applications before the permits were issued.

[60] Additionally, Murphy Oil argues that there are no new relevant facts or issupertaining to the permits that were not previously put before, and considered the Commission in making its determinations.

[61] Regarding flaring, Murphy Oil notes that the Appellant does not live in the area, and it submits that only neighboring land owners expressed concerns about noise.


[62] Murphy Oil disputes the Appellant’s allegation that it misled the Commission on whether it had the right to access the Appellant’s land. In support, Murphy Oil refers to the consultation report it provided to the Commission, and submits that

Surface Rights Board would have notified the Commission about the

f sion’s

the report indicated that the matter was “going to the Surface Land Board”. Murphy Oil notes that it applied to the Surface Rights Board for a right of access order one month before the Commission issued the permits. Murphy Oil argues that theapplication for a right of entry order, pursuant to a memorandum of understanding between those agencies. Moreover, Murphy Oil submits that any permit issued by the Commission is subject to access being obtained, and therefore, the question owhether an applicant has a right to enter the land is irrelevant to the Commisdetermination.

Tribunal’s findings

Procedural errors

[63] The Tribunal finds that the Commission made two procedural errors during the process that led to the appealed determinations. The Commission failed to ensure that the Appellant or her legal counsel was provided with copies of the permit applications, so that she could properly respond to the proposed oil and gas

occur on her land. The Commission also failed to recognize represented by legal counsel, and that her counsel made a

relation to the permit applications pursuant to section 22(5) of

f

ness hours the following information

[65] persoapplicati

[66] The Commission received Murphy Oil’s permit applications on March 11, 2011, onrequirement ection 22(5) and the

ns ions

n

activities that were tothat the Appellant wasvalid submission inthe OGAA.

[64] Regarding the first procedural error, Mr. Carter clearly requested copies othe permit applications in his November 17, 2010 letter to Murphy Oil, which was copied to the Commission. The Tribunal notes that, at all the material times, section 17(6)(b) of the Oil and Gas Activities Act General Regulation stated:

(6) The commission must make available to the public at all times during busi

…

(b) all applications for permits and amendments to permits, including all submissions supporting those applications.

Further the Tribunal notes that section 22(5) of the OGAA provides for a n, other than the applicant, to make submissions with respect to the

on.

e month before the Commission issued the permits. Despite the s in section 17(6)(b) of the Regulation and s

OGAA, the Commission made no effort to disclose Murphy Oil’s permit applicatioto the Appellant during the month before the permits were issued. The applicatwere eventually disclosed by Murphy Oil, but only after the permits had beeissued.


[67] According to evidence at the appeal hearing, the Commission’s policy at the time was not to disclose permit applications, because they were considered to be confidential information.

[68] The Tribunal finds that the Commission failed to meet its statutory

right to comment on the application than it falls to the it.

s

s

obligations to the Appellant when it did not make the applications available to her before the permits were issued. If a landowner has a right to have access to the application and the further Commission to ensure that those rights are observed before issuing a perm

[69] Regarding the second procedural error, the evidence establishes that the Commission’s staff, including the Operations Manager, disregarded Mr. Carter andhis November 17, 2010 letter, which constituted the Appellant’s submission under section 22(5) of the OGAA. A review of the correspondence shows that the Commission received Mr. Carter’s November 17, 2010 letter, both directly and apart of Murphy Oil’s consultation report, before the permits were issued. The correspondence also shows that Mr. Carter explained to the Commission that he was acting as the Appellant’s legal counsel. In his November 19, 2010 email to theCommission, Mr. Carter stated:

Ms. Gross is not transferring her rights to me. She has asked me to act acounsel on her behalf. You’ll have to take my word on that.

[underlining added]

[70] ed his N ge from t he mistakenly belie d not represent the Appellant with respect to Murphy Oil’s

Despite that information, the Commission ignored Mr. Carter and disregardovember 17, 2010 letter in its decision-making process. The following passa the Operations Manager’s April 11, 2011, report confirms thaved that Mr. Carter di

applications:

Mr. Carter indicated that Ms. Gross was not transferring her rights to him and did not confirm that he was representing her in the OGAA process.

[underlining added]

[71] 2011subm

not received anything in writing from Ms. Gross. Since

In addition, the following passage from the Operations Manager’s April 11, , report confirms that he dismissed Mr. Carter’s letter as not being a valid ission from a land owner:

The Commission has she is not transferring her rights to Mr. Carter for the purposes of OGAA, thisletter [from Mr. Carter] does not constitute a written reply from the landowner.

[underlining added]

The Commission submits that this misunderstanding had no consequences. ribunal rejects that proposition. The Tribunal finds that the Operatioger proceeded

[72] The T ns Mana to make the determinations as though he had no duty to cons r. Carter’s letter. By disregarding Mr. Carter’s letter, ider the concerns in Mwhich was the Appellant’s only submission under section 22(5) of the OGAA, the Operations Manager proceeded as if the Appellant had made no submission. In


doing so, he failed to give due regard to the Appellant’s submission, contrary to section 72(2) of the OGAA.

[73] The Tribunal notes that, during the appeal hearing, the Commission advised that it has changed its policy towards submissions from lawyers representing lanowners, and it no longer requ

d ires land owners to transfer their rights under the

to have her submissions considered by the Tribunal.

re

OGAA to their lawyer.

[74] Although the Commission failed to give due regard to the Appellant’s submissions filed under section 22(5), the Appellant had a full opportunity duringthe appeal proceedingsAccordingly, the Tribunal has considered and addressed the concerns that weraised in the Appellant’s submission filed under section 22(5), as follows:

The concerns/questions raised in the Appellant’s submission filed under section 22(5)

Request for copies of the permit applications

[75] The Tribunal has already found that the Commission erred in failing to nt. Although the Appellant did not after the permits were issued, the

he

t well was drilled under the authority of a ct of the applications filed in and drilling of the first well

Reloc

[78] nt submitted that the access road should be ry of the property, because the current

e strip of land that is only useful because the

dition, it from

disclose the permit applications to the Appellareceive copies of the permit applications until Appellant participated in the appeal proceedings with the benefit of copies of tapplications. The appropriate remedy in these circumstances is addressed later inthis decision, under the third issue.

Whether drilling of the first well resulted in a dry hole

[76] The Tribunal finds that the firspermit issued in 2008. The first well was not the subje2011, or the permits issued in 2011. The authorizationis not the subject of the present appeals, and is not within the Tribunal’s jurisdiction in deciding these appeals.

[77] In addition, the Tribunal finds that Murphy Oil answered this question in its January 4, 2011 letter to Mr. Carter, where it stated:

The drilling of the first well was a vertical well from which studies indicated there is potential for horizontal wells to follow. This well may be tied in whenthe horizontal wells are tied in.

ation of the access road

During the hearing, the Appellamoved so that it abuts the north boundalocation leaves a 50-metre widAppellant currently owns the adjacent quarter section of land to the north.

[79] The Tribunal finds that the existing access road was authorized under the permit issued in 2008, which is not the subject of the present appeals. In adthe Tribunal finds that relocating the access road would require a new permthe Commission, and the applications filed in 2011 did not seek authorization for a new or relocated access road.


[80] Furthermore, the terms of Murphy Oil’s surface lease, including access to the Appellant’s property and any damages arising from the access road that may not

cation of the existing access road, or to order that it be relocated.

n-

to the Appellant’s property. The validity of the

within r the OGAA. The terms of the surface lease are

he ot allow Murphy Oil to expand beyond that

e area, including

tter:

e no ergency Response Zone, therefore there

[87] 1 reportemergency, as follows:

have been previously compensated, are matters within the Surface Rights Board’s jurisdiction.

[81] Consequently, the Tribunal has concluded that it is without jurisdiction to address the lo

Request that Murphy Oil explain why a replacement lease was required due to noregistration of the initial lease

[82] The Tribunal finds that the appealed permits do not authorize, nor was their issuance predicated on, access previous surface lease, and any reasons for a replacement lease, are not matters within the Tribunal’s jurisdiction under the OGAA.

Request that Murphy Oil agree to new and amended lease terms that were submitted to it by Ellen Gross

[83] The Tribunal finds that the terms of the surface lease are not mattersthe Tribunal’s jurisdiction undematters for Murphy Oil and the Appellant to resolve. The Tribunal further accepts that Murphy Oil remains open to renegotiate the terms of the lease should the Appellant wish to enter into such negotiations.

There is insufficient area within the existing well site to accommodate all of the facilities needed for the additional wells

[84] The Tribunal finds that the appealed permits authorize Murphy Oil to use texisting well pad only. The permits do narea. If the existing well pad proves to be insufficient, any proposed expansion would be the subject of a future application to the Commission. Consequently, the Appellant’s concern that the existing well pad may be insufficient to accommodate the new wells is beyond the scope of the present appeals.

Request for Murphy Oil to explain how it proposes to deal with egress in the event of an emergency, and disclose its Emergency Response Plan

[85] During the appeal hearing, the Appellant submitted that her concerns about egress include not only residents, but anyone who may be in thberry pickers and bird watchers.

[86] The Tribunal notes that Murphy Oil responded as follows to the egress question in its January 4, 2011 le

Murphy Oil has a Corporate Response Plan that we will utilize. There arresidents or public roads in the Emare no egress issues for area residents. During the drilling phase, Murphy willbe drilling thru 2 slightly sour zones; which are cased off and production will be from the Montney formation which is “sweet gas”; the emergency planning zone for completions and production is within the wellsite.

In addition, the Tribunal notes that the Operations Manager’s April 11, 201 discusses the emergency planning zone, and egress in the event of an


2. The Emergency Planning Zone (EPZ) during the drilling phase of these projects is calculated to be 190 metres. The Emergency Awareness Zon(EAZ) extends 380

e metres from well centre. When the well is completed the

ission for approval prior to spudding of the wells.

g sues.

[88] Appell rilling phase, Murphy Oil expects to drill through two sour gas zones. Sour gas

complies with the regulatory requirements before “spudding” (i.e.,

roads within the EPZ or the 380-metre EAZ (i.e., the area

o

that Murphy Oil should be required to disclose a copy of its Corporate

EPZ will be reduced to 0 metres. No residents are located within the EPZ or EAZ.

3. The wells have been classified as requiring a corporate emergency response with supplemental information. This plan is required by the Comm

4. There are no residents or public roads within the emergency planninzone or emergency awareness zone; as a result there are no egress is

The Tribunal notes that, according to Murphy Oil’s consultation letter to the ant, the drilling phase is expected to take approximately 60 days. During the

dcontains relatively high concentrations of hydrogen sulphide, which is a hazardous substance.

[89] Based on the evidence, the Tribunal finds that Murphy Oil has a Corporate Emergency Response Plan, which must be filed with the Commission for review to ensure that itbeginning to drill) the wells. Murphy Oil was not required to submit a site-specificemergency response plan, because there are no residences, public facilities, highways, rivers, recreation areas, or places of business and/or egress within the 190-metre EPZ (i.e., the area surrounding a well where residents or other membersof the public would be at risk in the event of an uncontrolled release of a hazardous substance).

[90] The Tribunal finds that egress by residents or non-residents in the event of an emergency should not be problematic or hazardous, because there are no residences or publicwithin which all publicly used facilities must be identified in the emergency responseplan). The Tribunal notes that the nearest occupied residence is 400 metres away from the well site, which is beyond the EPZ and EAZ. There is no evidence as twhat areas may be frequented by berry pickers or bird watchers, or whether drilling may occur during the seasons for those activities, but the Tribunal notes that there is evidence (discussed under the next sub-heading) that the Kiskatinaw River is more than 500 metres away from the proposed project, which is beyond the EPZ and EAZ. Furthermore, the Tribunal finds that, once drilling is completed, the EPZ will not extend beyond the well site, because the Montney Zone produces sweet gas.

[91] However, for the purposes of alleviating the Appellant’s legitimate concerns regarding the possibility of an emergency occurring on her property, the Tribunalfinds Emergency Response Plan to the Appellant, as requested.


Whether an environmental assessment report has been done, especially conthat the watershed around the well site runs into the City of

sidering Dawson Creek water

awson Creek is located approximately 1 km from the well site. She

e

Regional District were notified of the permit e

es

l ct on soils or vegetation, because no further clearing or land

r source

sition y be necessary should the

Mr. Carter’s November 17, 2010 In her appeal submissions, the Appellant submits that

the Operations Manager should have contacted the Appellant, or a neighbouring land owner who also expressed concerns about flaring, to determine if the concern

supply

[92] During the appeal hearing, Ellen Gross explained that a water intake for theCity of Dadvised that the well site is located on land that drains directly into an oxbow lake that is found on the Appellant’s property. Water from the oxbow lake then drains into the Kitskatinaw River which then drains to the Dawson Creek water supply.

[93] The Tribunal notes that Murphy Oil’s January 4, 2011 letter indicates that it was not required to complete an environmental assessment, and that the well sit“will be bermed during drilling and production; and any production equipment on site will have double walled tanks and will be bermed for secondary containment.”

[94] The Tribunal also notes that the permit applications did not seek authorization to clear or develop new land, because the existing well site and access road would be used.

[95] In addition, Murphy Oil’s consultation report indicates that the City of Dawson Creek and the Peace River applications, but did not respond to the invitation to consult. Furthermore, thconsultation report includes a February 15, 2011 letter from Caribou Land ServicLtd., which states that the proposed project is more than 500 metres from the Kiskatinaw River.

[96] Based on the evidence, the Tribunal finds that the permitted activities wilhave minimal impadisturbance is proposed or authorized. The Tribunal also finds that Murphy Oil is taking steps to contain potential spills, and protect surface water from contamination, by using double walled tanks and berms for containment.

[97] However, the Tribunal finds that based on the evidence of a watethat drains into the Dawson Creek water supply being located on the Appellant’s lands, further steps are required. Specifically, the Tribunal finds that Murphy Oil should carry out a baseline environmental assessment of the water found in the oxbow lake that is located on the Appellant’s property. This assessment should include a scientifically accepted background analysis of the water in the lake. The results of the study are to be made available to the Commission and to the Appellant before drilling under the permits proceeds.

[98] The Tribunal makes this finding to ensure that the Appellant is in a poto seek compensation or such other remedies that maoxbow lake be subjected to contamination from the wells. The studies will also benefit Murphy Oil should it need to defend itself in the event of contamination of the Dawson Creek water shed from other sources.

Request for limits on flaring

[99] The Appellant requests limits on flaring, but letter was not more specific.


had been resolved. During the hearing Ellen Gross expressed the concern that flaring is very noisy. No other concerns or limits on flaring were brought to the attention of the Tribunal by the Appellant.

[100] In his April 11, 2011 report, the Operations Manager indicated that the Commission has issued a directive on inline testing, which reduces flaring duringwell testing, and that conditions on flaring could be added to the permit. In thatregard, his report states:

[101] ng for all pipelinComm Directive indicates that emergency flaring and periodic

e concentration in flared

on

e as If Murphy Oil decides to apply to the Commission

tification and s a land owner, the

r

issue of access was

… Murphy has indicated they would inline test based on the feasibility to doso, however, the Commission has clearly outlined the expectation around flaring in Commission Directive 2010-03 Inline Testing…

7. Flaring requirements are conditioned in the approval. Commission Directive 2010-03 Inline Testing outlines industry requirements with regard to flaring practices.

The Tribunal finds that Commission Directive 2010-03 requires inline testinew wells located within 1.25 km of a residence, and 3 km or less from e infrastructure, unless a written exemption is obtained from the ission. However, the

clean-up flaring during well completion may still occur.

[102] In addition, the Tribunal finds that section two of both permits contains eight conditions that apply to flaring for the purposes of well testing and cleanup, including limits on the duration of flaring, 24-hour advance notification of residents,and limits on the maximum volume and hydrogen sulphidgas. Section 2(vii) of the permits incorporates section 6 of the Commission’s “Flaring and Venting Reduction Guideline”, which specifies the required notificatiradius around the well site, depending on the hydrogen sulphide concentration of the gas, and the duration or volume of flaring.

[103] Consequently, the Tribunal finds that the Commission’s Directive 2010-03 and the conditions in the permits impose limits on flaring. In particular, the Tribunal finds that these conditions address the Appellant’s concerns regarding noise that results from flaring.

Request for Murphy Oil to disclose plans for future pipelines

[104] The Tribunal finds that Murphy Oil did not seek authorization for a pipelinpart of the permit applications. for a pipeline permit in the future, it will be subject to the noconsultation requirements in the OGAA and the Regulation. AAppellant will have an opportunity to make a submission regarding any future application for a pipeline. Consequently, the Tribunal finds that any future plans foa pipeline are outside of the scope of the present appeals.

[105] Finally, regarding the Appellant’s concern, which was raised in the appeal proceedings but not in the submissions to the Commission, that the Operations Manager incorrectly assumed that Murphy Oil had access to the Appellant’s land before the permits were issued, the Tribunal finds that the irrelevant to the Operations Manager’s determinations, because any permitted activities are subject to access being obtained. Moreover, the Tribunal finds that


Murphy Oil’s consultation report states that the issue of access to the Appellant’s land was “going to the Surface Land Board.”

[106] In summary, the Tribunal finds that the Commission made two procedural errors: failing to provide the Appellant with copies of the permit applications; and,disregarding Mr. Carter and his November 17, 2010 letter, which constituted the Appellant’s submission filed under section 22(5

) of the OGAA. As a result of the n

e

,

d there should be a full and fair consideration of the

ent Ltd. v. British Court of

ceedings to correct procedural defects in the decision-making process

ave appellate

latter error, the Commission failed to give due regard to the Appellant’s submissiomade under section 22(5), contrary to section 72(2) of the OGAA. In addition, withthe exception of the requirements for the disclosure of the Corporate Emergency Response Plan and for a baseline environmental assessment of water quality in thoxbow lake on the Appellant’s property, the Tribunal finds that the concerns and questions arising from the proposed oil and gas activities that have been raised in the Appellant’s submissions are beyond the Tribunal’s jurisdiction in these appealshave been addressed in the Commission’s determination process, or are without merit based on the evidence.

3. What is the appropriate remedy in the circumstances?

[107] The Appellant requests that, given the Commission’s procedural errors, thepermits should be cancelled, anAppellant’s concerns before any new determinations are made.

[108] The Commission and Murphy Oil submit that the appeals should be dismissed.

[109] The Tribunal notes that, in Taiga Works Wilderness EquipmColumbia (Director of Employment Standards), 2010 BCCA 97 [Taiga], theAppeal reviewed the leading Canadian jurisprudence on the ability of appellatetribunal probelow. The Court concluded that a breach of the rules of natural justice or procedural fairness can be cured by an appellate tribunal in appropriate circumstances. Writing for the Court, Mr. Justice Tysoe held as follows at paragraph 37:

[37] … As demonstrated by the post-Cardinal authorities to which I hreferred, Harelkin and King continue to stand for the proposition that tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness by an underlying tribunal. The question then becomes how one should determine whether such breaches have been properly cured.

[110prese

[111 sidered the nature of the breaches of procedural

ry powers and procedures are indicative of a hybrid appeal before

the

[underlining added]

] The Tribunal finds that the principles discussed in Taiga are relevant to the nt appeals.

] The Tribunal has confairness, which are discussed above under issue 2. The Tribunal has also considered its powers and procedures on appeal. The Tribunal has already found in Kerr that its statutoprocess that is more like an appeal de novo than a true review on the recordthe Commission. In this case, the Tribunal conducted a full oral hearing ofappeals. All of the parties had an opportunity to make submissions as to facts, law


and jurisdiction, and to introduce evidence, including new evidence that was nobefore the Commission. The Appellant had copies of the permit applications before she filed her appeals and made her appeal submissions. The parties were each represented by legal counsel, and each party had an opportunity to call their own witnesses, and cross-examine the other parties’ witnesses. The Appellant had anopportunity to respond to the evidence and submissions of the Commission and Murphy Oil, and to have her submissions considered by the Tribunal in a fair andfulsome manner. In reaching its decision on the merits of the Appellant’s concernsregarding the permit applications and the Commission’s determinations, the Tribunal has given due regard to the Appellant’s submissions filed under section 22(5) of the OGAA, and has considered all of the information and evidence that wsubmitted during the appeal process.

[112] Given the Tribunal’s powers and procedures, and the process by which theappeals were heard and considered, the Tribunal finds that the appeal proceedings have cured the defects in the Commission’s procedures below. Although the Appellant’s procedural rights were preju

t

as

se

diced by the Commission’s process below,

ess

e

e

pub that s” in the consultation report should be held as confidential. The

the blic unless:

ment be received to the

fected, or in the public interest, outweighs the desirability of adhering to the principle that hearings be open to the public…

the Appellant has been accorded a full and fair hearing before the Tribunal. The Tribunal also finds that rescinding the permits and/or sending the matter back with directions that the Commission start the application and decision-making procover again in its entirety would, in effect, duplicate what was achieved through theappeal proceedings. In these circumstances, the Tribunal finds that the appeal process satisfies the requirements of fairness, and the appropriate remedy is to confirm the permits with limited directions to the Operations Manager to amend thpermits as noted above.

4. Whether certain portions of Murphy Oil’s consultation report should breceived to the exclusion of the public, pursuant to the Tribunal’s Rule 50.

[113] During the appeal hearing, the Commission requested that the Tribunal orderthat portions of Murphy Oil’s consultation report be received to the exclusion of the

lic, pursuant to the Tribunal’s Rule 50(2). Specifically, the Commission submits the “line list

line lists are part of a document dated January 25, 2011, prepared by Murphy Oil. The line lists include the names and addresses of the persons that Murphy Oil notified about the permit applications, the dates and means of that notification, and a summary of the comments received (if any) from each person.

[114] The other parties did not comment on, or object to, the Commission’s request.

[115] The Tribunal’s Rule 50(2)(a) states as follows:

2. A document submitted in the hearing of an appeal will be accessible topu

a. the Panel directs that all or part of the docuexclusion of the public because, in the opinion of the Panel, the desirability of avoiding disclosure in the interests of any person or participant af


[116] R ct, which app 1 and 42 of the

Heari

ct that all or part of the information be received to the exclusion of the public if the tribunal is of

interests of any person y

(3) Th ke a document submitted in a hearing accessible

Discretion

42 dopa s the tribunal considers necessary, if the tribunal is of the opinion that the nature of the

ion to ensure the proper

[117] Ththe ordepresump esented at appea ion will be re ly in particular circumstances. The Tribunal

[119] For the reasons provided above, the Tribunal sends the matter back to the Operations Manager with the following directions:

ule 50 stems from sections 41 and 42 of the Administrative Tribunals Aly to the Tribunal by virtue of section 20 of the OGAA. Sections 4Administrative Tribunals Act state as follows:

ngs open to public

41 (1) An oral hearing must be open to the public.

(2) Despite subsection (1), the tribunal may dire

the opinion that

(a) the desirability of avoiding disclosure in the or party affected or in the public interest outweighs the desirabilitof adhering to the principle that hearings be open to the public, or…

e tribunal must mato the public unless the tribunal is of the opinion that subsection (2) (a)or section 42 applies to that document.

to receive evidence in confidence

The tribunal may direct that all or part of the evidence of a witness or cumentary evidence be received by it in confidence to the exclusion of a rty or parties or any interveners, on term

information or documents requires that directadministration of justice.

e Tribunal finds that, in this case, it is not in the public interest to grant r requested by the Commission. The Tribunal finds that there is a tion in the legislation that appeal hearings, and any documents prl hearings, will be open to the public, and public access to that informatstricted by the Tribunal on

finds that the information in the line lists was already in the possession of MurphyOil and the Commission before the appeal process. Furthermore, the Commissionhas an obligation under section 17(6)(b) of the Oil and Gas Activities General Regulation to make that information available to the public, because the line lists were included in Murphy Oil’s consultation report filed in support of its permit applications. In these circumstances, the Tribunal finds that there is no basis to grant the Commission’s request.

DECISION

[118] In making this decision, the Tribunal has considered all of the relevant documents and evidence, whether or not specifically reiterated herein.


end the permits to require that Murphy Oil disclose a copy of its Corporate Emergency Response Plan to the Appellant and the Commission

mits.

s regarding

the Appellant’s land and rther

[120]

[121]Murphy

[122]

Schaffer”

onica Danon-Schaffer, Member ribunal

Tony Fogarassy”

ony Fogarassy, Member

arch 22, 2012

1) Am

before any further gas and oil activities are carried out under the per

2) Amend the permits in accordance with the Tribunal’s directionthe requirement that Murphy Oil complete a baseline environmental assessment of the water in the oxbow lake on make it available to the Appellant and the Commission before any fugas and oil activities are carried out under the permits.

The Tribunal finds that the balance of the determination to issue the permits to Murphy Oil should be confirmed.

The Tribunal denies the Commission’s request for an order that part of Oil’s consultation report be received to the exclusion of the public.

Accordingly, the appeals are allowed, in part.

“Alan Andison”

Alan Andison, Chair Oil and Gas Appeal Tribunal “Monica Danon- MOil and Gas Appeal T “ TOil and Gas Appeal Tribunal

M

fourth floor, 747 fort street oil and gas telephone: (250 ... · during drilling and production;...

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