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Oil and Gas Appeal Tribunal

Fourth Floor, 747 Fort Street Victoria BC V8W 3E9 Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.ogat.gov.bc.ca Email: [email protected]

DECISION NO. 2019-OGA-003(b)

In the matter of an appeal under section 72 of the Oil and Gas Activities Act, S.B.C. 2008, c. 36.

BETWEEN: Olaf Jorgensen APPELLANT

AND: BC Oil and Gas Commission RESPONDENT

AND: Encana Corporation THIRD PARTY

BEFORE: A Panel of the Oil and Gas Appeal Tribunal Daphne Stancil, Panel Chair

DATE: Conducted by way of written submissions concluding on November 1, 2019

APPEARING: For the Appellant: For the Respondent: For the Third Party:

Self-represented Claire Bond, Counsel Lars Olthafer, Counsel

APPEAL

[1] Olaf Jorgensen appeals the May 13, 2019, decision of the BC Oil and Gas Commission (the “Commission”) to issue permit 100107235 (the “Permit”) authorizing Encana Corporation (“Encana”) to construct and operate a pipeline within an activity area specified by the Permit. Mr. Jorgensen is an owner of land within the activity area.

[2] The Oil and Gas Appeal Tribunal has the authority to hear this appeal under sections 19 and 72 of the Oil and Gas Activities Act, S.B.C. 2008, c. 36 (the “Act”). The scope of a land owner’s appeal is limited by section 72(2) of the Act, which provides, in part, that a land owner:

… may appeal a determination under this section only 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) … of this Act, or

(b) a written [consultation and notification] report submitted under section 24(1)(c) ….

[Emphasis added]


[3] Mr. Jorgensen does not take issue with how the Commission considered Encana’s written consultation report submitted under section 24(1)(c) of the Act. He bases his appeal on subsection “a”; that the Permit was issued without due regard to matters raised in his submission to the Commission under section 22(5) of the Act. Mr. Jorgensen asks me to rescind or amend the Permit under section 72(6) of the Act.

[4] This appeal has been conducted in writing.

BACKGROUND

Project description and location relative to the Jorgensens’ Property

[5] The Permit relates to Encana’s Pipeline Project No. 000025253 (the “Project”). The Project is located in an area of British Columbia known as Farmington, about five kilometers northeast of the confluence of Sunset Creek and the Kiskatinaw River, and 27 kilometres northwest of Dawson Creek.

[6] The Project, as permitted, is for the construction and operation of four flowline segments within a single right-of-way. The route is shown in lime green on the map attached as Appendix “A” to this decision.1 The first two segments carry unprocessed sour natural gas in one direction from well-site facility 16-36 (shown in orange in the upper northeast corner of section 36) to well-site facility 05-32 (shown in orange in the southwest quarter of section 32) 2. Unprocessed gas is transported from that well-site, by other existing pipelines previously approved by the Commission, to be processed. The third segment is a fuel line to carry processed sweet natural gas in one direction from well-site facility 05-32 to well-site facility 16-36. The fourth segment is a line to carry both water (for fracking) and a mix of water and fuel (after fracking) between well-site facility 16-36 and well-site 05-32, which can be operated in both directions.

The Commission issued the Permit to conduct oil and gas activities subject to certain conditions: notification (condition 5), environmental (conditions 7 and 8), clearing (conditions 9-13 inclusive), and Agricultural Land Commission (“ALC”) (condition 15). The ALC condition requires that Encana complete to the Commission’s satisfaction a Schedule ‘A’ Site Assessment (“Schedule A Report”) prior to beginning construction of the Project. The Schedule A Report establishes how the permittee will handle soil and manage water during Project construction. It also requires Encana to reclaim the area of the Project within 24 months of pipeline installation.

[7] Mr. and Mrs. Jorgensen own the northwest and southeast quarters of section 31. Their land is within the Agricultural Land Reserve (“ALR”).

[8] As shown on the map, most of the pipeline route at issue is located on the properties of other owners, and is beyond the Jorgensens’ property boundary. The green route of the pipeline proceeds from well-site facility 16-36 in an easterly

1 This map was attached as Exhibit “A” to the affidavit of Gerald Andres. 2 All land sections referred to are in the Peace River District.


direction within the Simlik Road right-of-way, which is beyond the northern boundary of the Jorgensens’ northwest quarter. The pipeline turns south at a mid-way point along the edge of the northeast quarter of section 31 for 800 metres. It then turns east for 400 metres along the southern edge of that quarter, which is located north of the Jorgensens’ southeast quarter. The route then takes a southern “jog” onto the Jorgensens’ property, which abuts Studley Road at the eastern edge of section 31. The pipeline runs for 72 metres along the Jorgensens’ property before turning east to join well-site facility 5-32.

The Permit Application

[9] Before applying to the Commission for a permit to conduct an oil and gas activity, applicants are required to complete a notification and consultation process established by section 22 of the Act and the Consultation and Notification Regulation, B.C. Reg. 279/2010 (the “Regulation”). As part of that process, an applicant must notify owners of land on which the applicant intends to carry out an oil and gas activity of the applicant’s intention to apply for a permit, and the notice must advise the land owner that he or she may make a submission to the Commission with respect to the application.

[10] On January 7, 2019, Encana sent a letter to various land owners, including the Jorgensens, describing its proposal to construct and operate a five-segment3 pipeline across private land, including land owned by the Jorgensens. A map attached to the letter showed the proposed pipeline route. In the same letter, Encana advised land owners that they could make a submission to the Commission and/or Encana regarding its proposal.

[11] Mr. and Mrs. Jorgensen made a written submission to the Commission on January 28, 2019 (the “January Submission”). The Jorgensens opposed the Project on their land and raised the following concerns:

• the Project would increase the size of the emergency planning zone (“EPZ”)4 over their property;

• the Project would add additional “burden” to the land;

• to avoid further burdens, and in order to use an existing pipeline (12-25-79-18) (shown in orange on the attached map), new pipeline could begin collection from well-site 16-36 (shown in orange) and continue through well-site 10-36 (shown in yellow) south for 800 metres, west for 800 metres and south again for 800 metres (new pipeline shown in purple) to

3 Only four segments were approved in the Permit 4 The Emergency Planning Regulation, B.C. Reg. 204/2013, requires permittees to develop an Emergency Response Plan for all oil and gas activities. That plan establishes how the permittee will deal with emergencies in order to protect persons who could be affected by hazards associated with an oil and gas activity, such as a pipeline. The permittee is required (section 5) to calculate a zone of potential impact (Emergency Planning Zone) associated with every permitted activity, in accordance with the standards established by the regulation.


join the beginning of an existing pipeline at a riser site at 12-25-79-18. The Jorgensens’ submission suggests existing pipeline could be used without change from the riser site at the beginning of the pipeline at 12-25-79-18 to the final collection point at the well-site at 13-295 (shown in orange) (the “Alternative Route”), rather than installing and operating the proposed new Project infrastructure;

• because of the existing oil and gas activities and the cumulative impacts of these activities in the Farmington area, the land cannot “absorb” any additional impacts;

• until the Commission undertakes a comprehensive review of the existing activities in the Farmington area, no additional activities should be permitted; and

• the “economic, social and environmental impacts of the proposed development have not … been fully and transparently analyzed.”

[12] Representatives of Encana met with Mr. Jorgensen to discuss his concerns on January 29, 2019.

[13] On March 6, 2019, Encana provided a written response to the Jorgensens’ January Submission. I have summarized its response as follows:

• The EPZ associated with the Project is 230 metres. The Jorgensens’ residence is 2.5 kilometres away from the Project and outside of the EPZ for the Project.

• Encana chose the Project route to minimize disturbance of land which is in the ALR. The route is approximately 40% shorter than the Alternative Route, resulting in less disturbance to lands within the ALR, and minimizes the need for looping or twinning of existing routes within Encana’s infrastructure. While part of the Alternative Route already exists, adjustments to and extension of the existing line would be required to achieve the outcome necessary for the Project (e.g., potentially four additional loops of existing infrastructure).

• Encana acknowledges the level of industrial activity in the community and that an increase can result in an impact. Encana tries to minimize impacts through the use of mitigation techniques when building and operating oil and gas projects, and operates respectfully to support the local community.

• Encana chose the Project route to maximize pipeline and well-head operational efficiencies, and to improve the economic impact of the Project on Encana.

5 The existing pipeline from the well-site at 06-30 running east for about 1000 metres and then north for about 800 metres from 08-30 to 13-29 is shown on the map by a broken purple line indicating that portion of the line would require a loop.


[14] Representatives of Encana met, again, with Mr. Jorgensen on March 26, 2019, to further discuss the Project. Encana offered further meetings, but no further in-person meetings took place.

[15] On April 10, 2019, Encana applied to the Commission for the Permit, and included its Consultation and Notification Report (the “Consultation Report”). This report is required by section 24(1)(c) of the Act, which states that an applicant for a permit must submit “a written report, satisfactory to the commission, regarding the results of the consultations carried out or notification provided under section 22”. In its Consultation Report, Encana notes that the Jorgensens’ concerns about the cumulative impacts of the Project, routing, and emergency response/human safety had not been resolved at the time of its permit application.

The Commission’s Decision

[16] On May 13, 2019, the Commission issued the Permit under section 25 of the Act, along with separate Reasons for Decision. The Commission notes that, in coming to its decision, it reviewed the Jorgensens’ January Submission and the issues it raised, as well as Encana’s response. The Commission identifies the concerns raised in the Jorgensens’ January Submission as follows:

• increasing the amount of the Jorgensens’ land located within an EPZ;

• the proposed pipeline route; and

• additional impacts in the Farmington area, including in their land.

[17] With respect to the pipeline EPZ, the Commission relies on Encana’s explanation in its March 6th reply letter. Specifically, the Commission notes that the regulatory framework for construction and operation of pipelines in British Columbia is a rigorous one, which protects the safety of the public, workers, and the environment against potential hazards associated with pipelines. The Commission acknowledges Encana’s submission that the Jorgensens’ residence is outside of the 230-metre EPZ for the Project, and that there are regulatory requirements in place requiring Encana to prepare and maintain an Emergency Planning Program, which it had done. The Commission was satisfied that the information provided by Encana to the Jorgensens to address their EPZ concern was accurate, and appropriately addressed their concern.

[18] Regarding the Jorgensens’ Alternative Route, the Commission considered:

• Encana’s rationale for choosing the Project route;

• Encana’s assessment of alternatives; and

• the views of the Commission’s reviewing engineer.

[19] The Commission concluded that when compared with the Alternative Route, the Project route resulted in:

• less disturbance to the surface and ALR lands;

• greater recovery of gas reserves; and


• less pipe and installation due to a lower need for twinning or looping on the Project pipeline for operational efficiencies.

[20] Further, the Commission found that the Project route eliminated the need for pre-investment on a pipeline of uncertain usage.

[21] Based on this analysis, the Commission concluded that the Project route was reasonable.

[22] As to the potential for cumulative effects of the Project route, the Commission reviewed the potential for surface disturbance generally, impacts to agricultural lands, and the potential for impacts to upland and wetland wildlife habitat associated with the Project. The Commission concluded that the existing legislative and regulatory requirements that apply to Encana would prevent, or mitigate, any potential adverse effects. Further, once constructed, Encana must conduct reclamation of the right-of-way area within 24 months in accordance with any recommendations contained in the Schedule A Report that Encana provided to the Commission, in order to return the land to equivalent condition and capability.

[23] The Commission notes, however, that the Schedule A Report and another rationale document submitted by Encana at the time of application, did not include information regarding two parcels of land to which the Jorgensens refused Encana access. As a result, the Commission added a requirement in the Permit for Encana to complete a Schedule A assessment and provide a final report including these two parcels, to the satisfaction of the Commission, prior to clearing and construction on these parcels.

[24] The Commission found that the Project as proposed was consistent with and met the current regulatory requirements under the Act, that Encana had undertaken the required consultation within the community, and that the application should be approved subject to the conditions set out in the Permit. The Commission found that the proposed pipeline route “… reflects developmental and operational needs in the area, discussions and consultations with landowners and stakeholders in the area, and an assessment of environmental, social and economic impacts of the activity.”

[25] After receiving the Permit, Encana applied to the Surface Rights Board for a right of entry order in respect of the Jorgensens’ lands. The Surface Rights Board granted an order May 31, 2019. Although Mr. Jorgensen sought a review of that order, Encana advises that it exercised its right of entry in accordance with the order and applicable conditions in order to complete the Schedule A Report.

The Appeal

[26] Mr. Jorgensen filed a notice of appeal, dated May 27, 2019, requesting that the Permit be “repealed”. He relies on similar submissions to those he made in the January Submission that:

• use of the Alternative Route would reduce impacts to the Jorgensen’s land, since it would utilize an unused length of pipeline located to the west of the Project;


• no further decisions should be made in the area until the Commission has completed a comprehensive review of the development in the “over permitted” Farmington area; and

• a full transparent analysis of the economic, social and environmental impacts of the Project is lacking.

[27] In addition, Mr. Jorgensen states that Encana has another option, which is to route the pipeline “due south” from the 10-36 well-site facility to a location on the existing and unused pipeline (shown in orange in the Appendix A map) at 10-25-79-18. This proposal follows the purple line in the Appendix A map from the yellow well-site facility at 10-36, south along the purple line, then straight through the middle of the northern half of section 25 (no colour) to join with the orange pipeline proceeding east along the 12-25-79-18 pipeline from a point at 10-25, to well-site 16-30 and then east and north to well-site 13-29 as described for the Alternative Route (“Alternative Route #2”). Mr. Jorgensen explains that Alternative Route #2 reduces the length of his proposed Alternative Route by 800 metres (i.e., it eliminates the remainder of the purple line that turns west then south). He does not indicate if there is infrastructure in place to enable the joining of the proposed south-running pipeline to the existing pipeline at 10-25. He attached a Google Earth map showing the general areas of his proposed routes.

[28] Mr. Jorgensen did not reiterate the EPZ concern expressed in the January Submission.

Stay Application and Project Status

[29] Mr. Jorgensen applied to the Tribunal for a stay of the Permit on June 10, 2019. He argued that he needed the Permit to be stayed because Encana had started construction of the pipeline and it may be completed before his appeal is heard and decided.

[30] After considering written submissions, the Tribunal denied the application on July 23, 2019 in Olaf Jorgensen v. BC Oil and Gas Commission, (Decision No. 2019-OGA-003(a)). In its decision, the Tribunal notes that, even if the pipeline is built before the appeal is decided, the appeal would not be moot. It states at paragraph 55: “Encana took a risk that it may have to cease construction and/or operation of the pipeline if a stay is granted, and/or the appeal is successful and the Permit is rescinded.”

[31] Encana completed construction of the Project on July 22, 2019. It commenced operations (i.e., flowback from the 16-32 well-site facility) on August 17, 2019.

SUMMARY OF THE PARTIES’ POSITIONS

Mr. Jorgensen

[32] In his notice of appeal, Mr. Jorgensen relies on three of the four concerns he outlined in his January Submission to the Commission—he does not rely on the EPZ concern. In addition to the concerns identified in the January Submission, Mr.


Jorgensen proposes a new alternate route—Alternative Route #2. Both the Commission and Encana object to the inclusion of the further route variation in this appeal as it was not part of Mr. Jorgensen’s written submission to the Commission.

[33] In his appeal submission filed on September 19, 2019 (the “Appeal Submission”), Mr. Jorgensen outlined additional concerns. He elaborates on what he considers to be failures on the part of the Commission in accepting the Project alignment as proposed by Encana rather than his proposed Alternative Route, and in failing to consider the adverse impacts of the Project on his land. In this regard, he makes submissions pertaining to the impacts to the land where the Project is to be constructed.

[34] Regarding the Commission’s assessment of the economic, social and environmental impacts, Mr. Jorgensen submits that the Commission should include his perspective as a land owner when evaluating the economic effects.

[35] Further Mr. Jorgensen submits that the issuance of a permit under the Act results in a “taking” under the Expropriation Act or the Petroleum and Natural Gas Act. Where there is a “taking”, he submits that the law imposes a different standard on the Commission when exercising its powers. Mr. Jorgensen submits that if there is uncertainty about the effects of the Project, the Commission should “favour” the land owner whose rights will be altered by the decision.

[36] Finally, Mr. Jorgensen also raises a matter of procedural fairness in the Commission’s decision-making process, and submits that the Commission is biased in favour of the industry in its decision-making.

[37] As Mr. Jorgensen did not identify the EPZ issue in his notice of appeal or his Appeal Submission, I find that he is not pursuing this as a ground for appeal and I will not consider it further in this decision.

[38] Mr. Jorgensen maintains that the Permit ought to be rescinded, or should be amended to provide a 12-month window within which Encana can abandon the Project route and reconfigure the route to make use of the 12-25 to the 6-30 well-site, “following which the existing pipeline would be removed from my property.”

The Commission

[39] The Commission submits that the January Submission establishes the appealable matters. The appealable matters are the proposed routing of the Project, including the recommendation of the Alternative Route, and the impacts of the proposed activity on Mr. Jorgensen’s land and generally on the lands in the Farmington area. The Commission submits that it considered the matters raised in the January Submission and gave them due consideration before issuing the Permit. The Commission explained the legislative authority for its decision and denies being a biased decision-maker.

[40] The Commission also argues that any new issues raised by Mr. Jorgensen in his appeal—issues that were not part of the January Submission—are not properly before the Tribunal and should not be considered in this appeal: Karl Bryce Mattson v. Oil and Gas Commission, (Decision No. 2015-OGA-007(a), November 23, 2016). In particular, it submits that Mr. Jorgensen introduced and described Alternative


Route #2 in his notice of appeal, but did not raise it in the January Submission. Therefore, the Commission submits that it is not properly before me in this appeal.

[41] In support of its position that it properly considered the January Submission, the Commission filed an affidavit affirmed on October 24, 2019, by its employee Dean Zimmer, Executive Director, Permit Adjudication.

[42] The Commission also gave notice of expert evidence and filed that evidence in the form of an affidavit affirmed on August 23, 2019, by its employee Jason Wilson, professional engineer, Pipelines and Facilities. Mr. Wilson completed the Pipeline Engineering Review of the proposed pipeline before the Permit was issued. Mr. Wilson’s affidavit contains his opinion on whether the Alternative Route would require twinning of the pre-existing pipeline to provide equivalent capacity as the permitted pipeline. Although Mr. Jorgensen suggests that Mr. Wilson has estimated the length of pipe needed for twinning the portion of Alternative Route from 12-25 to 6-30 incorrectly, he relies on Mr. Wilson’s affidavit in the Appeal Submission.

[43] The Commission submits that the appeal should be dismissed.

Encana

[44] Encana submits that the Commission gave due regard to the concerns that Mr. Jorgensen raised in his January Submission. It submits that the Commission gave detailed consideration to each of the concerns raised by Mr. Jorgensen, including the suggestion that the Alternative Route is more appropriate for the Project.

[45] Encana submits that the Commission is required to consider and balance the environmental and social effects of a proposed project along with the economic effects, and that it did so in this case. In considering the Project route, Encana states that the Commission is under no obligation to undertake a comparative economic analysis between the one applied for and the alternatives presented by Mr. Jorgensen. Encana goes on to state that there is no evidence that the Commission was biased in its decision-making.

[46] Encana argues that, considering all the evidence, Mr. Jorgensen has not established, on a balance of probabilities or otherwise, that the Commission should have given more weight to the Alternative Route or his other concerns and refused the Permit.

[47] In support of its case, Encana gave notice of expert evidence. It filed that evidence in an affidavit sworn on August 23, 2019, by Gerald Andres, a professional engineer employed by Encana as the Senior Production Engineer. Mr. Andres’ evidence analyzes three aspects of the Alternative Route (its length/distance, capacity and compression) and compares the Alternative Route with the Project route approved by the Permit.

[48] It should be noted that Mr. Jorgensen objects to Mr. Andres’ evidence on the grounds that there is no indication that the details of his evidence were before the decision-maker at the time the decision was made. In response, Encana submits that there are no proper grounds to reject Mr. Andres’ affidavit. It notes that the Tribunal conducts new hearings (hearings de novo), whereby it may consider new


evidence in support of, or related to, the land owner’s submissions (see, for example Penalty Ranch Ltd. v. Oil and Gas Commission, Decision No. 2016-OGA-G01, June 22, 2018 at paragraphs 132-136) [Penalty Ranch]. Further, Encana submits that Mr. Andres’ evidence relates to the merits of the approved Project route and Mr. Jorgensen’s Alternative Route, a matter that was before the decision-maker and has been appealed to the Tribunal. I will address this objection later in this decision.

[49] Encana submits that the appeal ought to be dismissed.

ISSUES

[50] As set out in section 72(2) of the Act, the main issue to be decided on this appeal is:

Was the Commission’s determination to issue the Permit made “without due regard” to a submission previously made by the land owner, Mr. Jorgensen?

[51] Under this issue, the Panel has addressed a number of sub-issues that were raised in the parties’ submissions. Those sub-issues are:

a) Whether the Commission breached the rules of procedural fairness and issued the Permit without due regard to Mr. Jorgensen’s submissions because the Commission was biased in favour of industry;

b) Whether the Commission failed to give due regard to:

• the full burden of the Project when considering any potential additional impacts of the Project to the land;

the cumulative effect of all oil and gas pipelines and activities in the Farmington area because it failed to undertake a comprehensive review of the area prior to issuing the Permit; and

• the viability of the proposed alternate pipeline routes.

c) Whether the Commission failed to conduct a full and transparent analysis of the economic, social, and environmental effects of the Project and, in particular, whether the Commission failed to give due regard to the economic impacts of the Project on Mr. Jorgensen as land owner.

[52] If I find that the Permit was issued without due regard to Mr. Jorgensen’s written submissions, or by breaching the rules of procedural fairness, I must next consider the appropriate remedy in the circumstances.


DISCUSSION AND ANALYSIS

1. Was the Commission’s determination to issue the Permit made “without due regard” to a submission previously made by the land owner, Mr. Jorgensen?

a) Whether the Commission breached the rules of procedural fairness and issued the Permit without due regard to Mr. Jorgensen’s submissions because the Commission was biased in favour of industry.

[53] Mr. Jorgensen alleges that the decision-maker failed to give due regard to his submissions because of “institutional bias”. Specifically, Mr. Jorgensen alleges the Commission was biased when issuing the Permit because it approved a pipeline route which avoided land of a different land owner who is currently litigating with the permittee, Encana. He refers to two previous decisions of the Commission, and states:

… this is another case where the OGC [the Commission] has acquiesced and allowed Encana to once again avoid dealing with a landowner that they are currently in litigation with. In the present instance Encana could have avoided the subject Jorgensen property by going straight east and then straight south to 5-32. In my view this repeated behaviour of the OGC constitutes an institutional bias favoring industry over landowner rights and concerns. It speaks volumes in this instance as to why the OGC did not require Encana to make use of the pre-existing right of way 12-25 to 6-30.6

[54] If there is institutional bias, this would taint the entire decision-making process so I have addressed this sub-issue first.

[55] Institutional bias is a type of bias resulting from the decision-maker’s membership or structure which causes the decision-maker to make an unfair decision. If Mr. Jorgensen’s submission is successful and I find the Commission was biased in its decision-making, this would undermine all the Commission’s considerations regarding the Project and require me to rescind the decision to issue the Permit, or send the matter back, with directions, to the decision-maker.

[56] In response to this bias allegation, the Commission refers to R. v. Lippe, [1991] 2 S.C.R. 114-157; 1990 CanLII 18 (SCC). The alleged bias in that case arose from the structure of the municipal court system which allowed judges to continue to practice law while sitting as part of the municipal court. Under these circumstances, could the municipal court be an independent and impartial tribunal? The Supreme Court of Canada posed the issue as “is the institution impartial”? In that case, the Court determined that it could be, but this would have to be determined on a case by case basis, taking into account legislative or institutional safeguards adopted to avoid bias. Also, if there is institutional bias, it exists because of the institution not an individual.

6 Paragraph 16 of the Appellant’s submission.


[57] Part of Mr. Jorgensen’s submission is that the Commission repeatedly favours industry rights over land owner rights. The Commission notes that the courts have held that the test for a reasonable apprehension of institutional bias is the same as for a reasonable apprehension of individual bias. In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394, the Court considered the appropriate test and held:

… the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. … that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[58] To establish bias, the burden of proof is on the person who raises the allegation “to demonstrate on the facts that a reasonable apprehension of bias exists and a mere suspicion of bias will not meet that burden”: Sutherland v. British Columbia (Superintendent of Motor Vehicles), 2017 BCSC 263.

[59] The Commission submits that Mr. Jorgensen has presented no evidence to support his assertion that the Commission has an institutional bias in favour of industry over land owner rights and concerns. It states that, on the facts and in law, there is no reasonable apprehension of bias in this case, including on an institutional basis.

[60] Encana submits that the Commission’s approval of the Project route, and the Project as a whole, does not constitute evidence of bias in favour of industry. It argues that Mr. Jorgensen has presented no evidence that the Commission failed to consider the Alternative Route with an open mind; rather, the evidence shows that Commission staff took Mr. Jorgensen’s January Submission seriously, and undertook a detailed and independent review of the information submitted to confirm that Encana’s assessment of the Alternative Route was accurate. It submits there is no evidence to establish the Commission is generally biased or that proponents are always favoured over land owners.

The Panel’s Findings

[61] This Tribunal considered a similar allegation of institutional bias in Willis Shore v. Oil and Gas Commission (Decision No. 2012-OGA-002(c), May 22, 2013) [Willis Shore]. In that case, the Tribunal held that the person asserting the bias must provide the evidence to support that assertion. No such evidence was provided by the appellant in that case, and the Tribunal held at paragraph 103 that “Without compelling evidence to support such an assertion, the Tribunal is not prepared to make such a finding.”

[62] The evidence before me relevant to Mr. Jorgensen’s submission includes the Commission’s Reasons for Decision and the affidavit sworn by Mr. Zimmer, Executive Director, Permit Adjudication, with the Commission. Mr. Zimmer’s affidavit states at paragraph 11:


In determining whether an oil and gas activity can be carried out in accordance with the purposes set out in section 4 of OGAA [the Act], the Commission is charged with balancing a broad range of environmental, economic and social considerations, including identification of land owners’ interests and concerns in relation to the application.

[63] Mr. Zimmer explains that, once a decision-maker who has been delegated the legal authority to make a determination about the application is assigned, that person may seek the assistance of expert staff members who provide advice with respect to the range of values, engineering, and consultation as required by the Act, for consideration prior to a decision. The Commission sets out the considerations it took into account in the Reasons for Decision.

[64] To accept Mr. Jorgensen’s argument of institutional bias, I require “compelling evidence” that the decision-maker did not give due consideration to the issues raised in the January Submission in a balanced manner (Willis Shore). Mr. Jorgensen has not provided such evidence. His remark that “approving the pipeline as proposed by Encana not another one in a different route over land owned by a person litigating with Encana” suggests some sort of predetermination by the Commission. I find that this assertion is not enough; it merely reflects a suspicion of bias. There is neither compelling evidence of institutional bias, nor compelling evidence that would result in a reasonable person apprehending bias.

[65] In fact, the evidence establishes that the decision-maker fairly considered Mr. Jorgensen’s concerns and his January Submission. As will become clear from my analysis of the other issues raised in this appeal, I find that the decision-maker gave due consideration to the issues raised in the January Submission in a balanced manner, and issued the Permit consistent with the Commission’s mandate or purpose provided in section 4 of the Act, and as described by Mr. Zimmer.

[66] In summary, I find that there is no basis to conclude that the Commission was biased as an institution or that a reasonable person would apprehend that the Commission was biased in issuing the Permit. Accordingly, this ground for appeal fails.

b) Whether the Commission failed to give due regard to:

i. the full burden of the Project when considering any potential additional impacts of the Project to Mr. Jorgensen’s land;

ii. the cumulative effect of all oil and gas pipelines and activities in the Farmington area because it failed to undertake a comprehensive review of the area prior to issuing the Permit; and

iii. the viability of the proposed alternate pipeline routes.

[67] I now turn to the analysis required by the legislative scheme. Section 72(2) of the Act requires me to determine whether a “determination was made without due regard to … a submission previously made by the land owner under section 22(5) … of this Act” [underlining added].


[68] In Penalty Ranch, the Tribunal described the legal test applied to appeals under the Act as follows:

[132] The question to be decided by the Panel is not whether the land owner’s concerns are legitimate, or whether they were addressed to the land owner’s satisfaction. Nor is the question whether this Panel would have made a different decision than the OGC.

[133] As noted earlier, the legal issue here is limited by section 72(2) of the OGAA [the Act] to whether “the determination was made without due regard to” the written submissions that Penalty Ranch made to the OGC under section 22(5) of the OGAA.

[134] …

[135] Of note, at paragraphs 41 to 45 of Bell the Tribunal reasoned that, to be successful, an appellant must establish that the OGC did not give “due regard” to its submissions. To be successful, the appellant land owner needs to convince the Panel, on a balance of probabilities, that the OGC should have given its submissions more weight, and then ought to have decided the matter differently.

[136] Also of consequence, an appeal under section 72(2) of the OGAA is treated as a hearing de novo in which the Panel is able to consider new evidence in support of, or related to, the land owner’s submissions. This was expressed in Bell as follows:

45. … the Legislature has limited a land owner’s grounds for filing an appeal which, by implication, narrows the types of issues that may be relevant in land owner appeals. Those issues must relate to the decision-maker’s failure to have “due regard” to the appellant’s written submissions (see Kerr v. Oil and Gas Commission, Decision No. 2011- OGA-005(b), December 12, 2011). However, in that decision, the Tribunal also found that it could hear new evidence. This Panel finds that both the submissions in relation to the original submissions, and any new evidence provided in support of those submissions, must meet the burden and standard identified above. In particular, an appellant must be able to establish that the concerns expressed are reasonable and legitimate and that the OGC, and now the Tribunal, should give them greater weight and should make a different decision.

46. For example, if an appellant raises a concern about impact to drinking water, there should be some evidence that there is a source of water that could reasonably be impacted, and there should be some evidence of link between the risk and the water in order to establish that it should be protected, but that the decision under appeal did not/does not do so. As stated by the Board in the decision quoted above, there must be some evidence “that the process which lead to the decision was flawed in some way” and should now be changed.


[Emphasis in Penalty Ranch]

[69] The following provides my analysis of each of the three matters listed above to determine whether the Commission duly considered each of them before issuing the Permit.

i. The Commission failed to give due regard to the full burden of the Project by considering any potential additional impacts of the Project to Mr. Jorgensen’s land.

[70] Mr. Jorgensen is concerned this Project adds to the burden and impacts of existing pipelines and oil and gas infrastructure in the area (Farmington), and more specifically, to his land.

[71] Mr. Jorgensen farms his land, and the land is in the ALR. He is concerned that his land and the area will not continue to support farming, the environment and wildlife. He suggests there is a point at which the same area cannot “absorb the burden”.

[72] The Commission states that it did not receive “additional” details or description of the “burden” Mr. Jorgensen is concerned about beyond the January Submission, and that it undertook its consideration of that concern based on the January Submission.

[73] In its Reasons for Decision, the Commission is clear that the Project route runs through land that is in the ALR. It explains the Commission’s relationship with the ALC, established by application of a regulation and the execution of an agreement enabling the Commission to require remediation of farmland due to the installation of, or changes to, a pipeline. Pipelines are an allowed use of the ALR.7 When making its decision to issue the Permit, the Commission considered any potential impacts to the condition and capability of the land, and reviewed the applicable legislation,8 to determine what the permittee would be required to do to avoid adverse impacts to the land if it approved the Project. The applicable legislation requires a permittee to:

• minimize any damage and disturbance to the sites of oil and gas activities (the Act, section 35);

• restore surface after construction (Pipeline Regulation, section 5);

• install pipeline to a minimum depth of 0.8 metres (Pipeline Regulation, section 3(2); and

• adhere to the standards of the Canadian Standards Association Z662 to minimize disturbance and control erosion in the pipeline right of way (Pipeline Regulation, section 3).

[74] The Reasons for Decision disclose that the decision-maker applied these provisions to minimize impacts on land and to require Encana to restore and/or

7 Agriculture Land Reserve Use Regulation, B.C. Reg. 30/2019, sections 21 and 25. 8 The Commission addressed the requirements of section 35 of the Act, section 5 of the Pipeline Regulation, B.C. Reg 281/2010, and in the Canadian Standards Association Z662.


reclaim the land within two years of the installation, back to a state compatible with agricultural use (e.g., Permit conditions 7 and 8 (Environmental), and condition 15 (ALC)).

[75] In particular, with respect to ALR lands, the Commission included a condition in the Permit (condition 15) requiring Encana to submit a Schedule A Report to the Commission’s satisfaction, indicating the type and timing of restorative measures prior to construction. The Commission also specifically considered the post construction requirements of Encana to return the right-of-way to its pre-existing status.


[76] Based on the decision-maker’s Reasons for Decision, I find that the Commission gave due regard to Mr. Jorgensen’s concerns as expressed in the January Submission. I find that the Commission gave due regard to the full burden of the Project by considering any potential additional impacts of the Project on Mr. Jorgensen’s land.

ii. The Commission failed to give due regard to the cumulative effect of all oil and gas pipelines and activities in the Farmington area because it failed to undertake a comprehensive review of the area prior to issuing the Permit.

[77] Mr. Jorgensen argues that the Commission needs to undertake a comprehensive review of the Farmington area in order to make a proper decision because of the cumulative impact of pre-existing oil and gas activities in the Farmington area. He submits that, until that review is done, no further disturbance should be allowed.

[78] The Commission submits that by considering the potential impact of the Project on the farm land of the area, and imposing several requirements to protect the condition and capability of the land, the oil and gas activities and agriculture are compatible: “… once construction is completed and disturbed areas are restored, the operation of a pipeline is compatible with agricultural use of the land” (paragraph 30). The Commission anticipates the land will be returned to pre-project equivalency.

[79] Encana submits that, if the proponent complies with all legislative and regulatory requirements to ameliorate any and all impacts to land disturbed by the Project, there is no ongoing impact from the Project. It submits that the Commission’s Reasons for Decision supports this conclusion.


[80] The Commission concluded, as a basis for issuing the Permit, that the Project could be built and operated to meet current regulatory requirements. The Commission’s Reasons for Decision discuss and outline the protection, management and remediation requirements of Encana relating to the oil and gas activities described by the application.


[81] Section 4 of the Act expressly describes the purposes of the Commission. For example, under section 4(a)(i) of the Act, the Commission is required: “to regulate oil and gas activities in British Columbia in a manner that provides for the sound development of the oil and gas sector, by fostering a healthy environment, a sound economy and social well-being…”.

[82] Another purpose of the Commission (Act, s. 4 (b)) is “…to ensure that applications that are approved are in the public interest having regard to environmental, economic and social effects”. This provision establishes the requirement for and nature of the Commission’s assessment of the effects of each project.

[83] The phrases “cumulative effects” and “cumulative impacts” are absent from the Act. In particular, those phrases 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. I note that 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 are set out in Division 1 of Part 2 (sections 4 to 7) of the Environmental Protection and Management Regulation, B.C. Reg. 200/2010. I find that an assessment of cumulative effects is not mentioned in the government environmental objectives for permits. The only mention of “cumulative effects” is in section 27(b) of the Environmental Protection and Management Regulation, which states that “cumulative hydrological effects that would have a material adverse effect on fish” are a consideration when the Minister decides to make an order establishing a fisheries sensitive watershed.

[84] If the legislative purpose for the Commission was to give regard to the cumulative effects of each application, or the cumulative effects of all oil and gas activities in a region, the language in the Act could have specifically included those requirements9. Instead, the Act requires the Commission to give due regard to the economic, social and environment effects of an oil and gas activity proposed in an application to determine if the project is in the public interest. In this case, the Commission concluded that “the proposed pipeline route reflects … an assessment of environmental, social and economic impacts of the activity”. Similarly, if the Commission was obliged to consider the cumulative impacts of oil and gas activities when deciding whether to issue a permit, the legislation could have said so, but it does not.

[85] I find that the Commission met the requirements of the Act specifying that the Commission deal with the assessment of effects for each application and consider the effects associated with that application. The absence of an assessment of cumulative or regional effects does not provide a basis for allowing the appeal.

9 For example, see the Environmental Assessment Act, S.B.C. 2018, c. 51, sections 25 (2)(a) and (b), and 35.


[86] I deal with Mr. Jorgensen’s claim that the Commission failed to conduct a full and transparent analysis of the assessment of the effects later in this decision under issue c).

iii. The Commission failed to give due regard to the viability of the proposed alternate pipeline routes.

[87] In the January Submission, Mr. Jorgensen proposed the Alternative Route, suggesting the impacts associated with the Alternative Route would be less than those from the (then) proposed pipeline route. In his notice of appeal, Mr. Jorgensen proposed Alternative Route #2, a variation to the Alternative Route. He suggests that the impacts associated with Alternative Route #2 would be even less than the impacts associated with the Alternative Route. Alternative Route #2 requires 800 metres less new pipeline than the Alternative Route.

[88] Encana submits that the length of the Project route is 2,871 metres, with only 72 metres crossing the Jorgensens’ property. Encana evaluated Mr. Jorgensen’s Alternative Route proposed in the January Submission, and responded in its March 6th reply that:

• the Alternative Route would require Encana to develop infrastructure (10-36 well pad) that was not immediately planned;

• the Project route is about 40% shorter than the Alternative Route, and disturbs less land, including ALR land, than the Alternative Route;

• the Project route is a more efficient route likely requiring less compression than the Alternative Route; and

• parts of the Alternative Route would require additional looping, requiring more pipe and causing renewed surface disturbance.

[89] Encana submits that, in the context of appeals pertaining to routing alternatives, the Tribunal has not rescinded or amended permits when there is evidence that the Commission gave due regard to the routing alternative(s) proposed by an appellant. In decisions where the Tribunal has assessed alternative routes, it has considered whether there is evidence that a proposed alternative route is clearly superior to the route selected by the proponent.10

[90] Encana submits that there is ample evidence that the Project route is superior to the Alternative Route. In support, Encana refers to its expert evidence contained in the affidavit of Mr. Andres.

[91] Mr. Andres is a professional engineer that has been employed by Encana since 2005. He is currently in the position of senior production engineer. In Mr. Andres’ opinion, the length of the Alternative Route is 4,017 metres longer than the Project route. Further, the Alternative Route would require approximately 5,500

10 For example, Robert and Maxine Dilworth, and Olaf and Frances Jorgensen v. Oil and Gas Commission, (Decision Nos. 2015-OGA-001(a) and 002(b), June 7, 2016), at paragraph 203.


metres of new right-of-way, representing 1,683 metres of additional right-of-way and associated land disturbance when compared with the Project route.

[92] Mr. Andres also states that the Alternative Route requires 3,900 metres of new greenfield right-of-way to connect the 16-36 well-site facility to the existing, but not yet operational, Encana flowline at 12-25-79-18 W6M. Additionally, in his opinion, approximately 1,600 metres of new parallel right-of-way would be required to accommodate the construction and installation of flowline segments adjacent to the existing and not yet operational Encana flowline segments (flowline “looping”).

[93] Mr. Andres concludes that the right-of-way would require expansion to accommodate looping required for flowline capacity and additional pipe to carry increased production volumes. In addition, he determined that the Alternative Route would require booster compression from 16-36 to 13-29. These pipeline adjustments would result in surface disturbance during installation.

[94] As noted earlier, Mr. Jorgensen objects to this expert evidence on the grounds that it was not before the Commission when it decided to issue the Permit. In response, Encana acknowledges that the level of detail in Mr. Andres’ affidavit was not before the Commission when it issued the Permit. However, it submits that its March 6th reply to the January Submission stated that the Project route “reduces the likelihood of requiring in-field compression” and contained sufficient definitive information to demonstrate that the Project route is superior. Specifically, the March 6th reply indicated that the Project route is shorter, maximizes reserve recovery, and minimizes looping requirements. Moreover, Encana submits that the Tribunal holds de novo hearings in which it will accept new evidence in support of, or related to, an appellant’s submissions.

[95] The Commission considered the Alternative Route. The Jorgensens proposed this route, in part, to utilize pipeline that was already built and installed, but not yet operational (12-25 to 06-30) (the orange line), and to utilize an operational length of pipe from the end of the existing, but unused, stretch of pipe to a well site and point of export for processing (06-30 to 13-29) (the broken purple line). Mr. Jorgensen suggests that reliance on an existing pipeline is better than installing new pipelines to avoid further soil disturbances.

[96] The Commission submits that it is clear from its Reasons for Decision that it considered the Jorgensens’ January Submission, and the Commission sought the advice of its reviewing engineer (Mr. Wilson) as part of its evaluation of the better route: the Project route or the Alternative Route. It determined that Encana’s March 6th response was credible and reasonable. The Commission’s decision-maker relied on it when issuing the Permit.

[97] In particular, the Commission considered that part of the alignment of the Alternative Route extending from 16-36 to 12-25 had not been disturbed before. Land at the well-pads (10-36 and 16-36) has been previously disturbed. The Commission concluded that the overall disturbance to ALR lands by building the Project in the Project route would be considerably less than the Alternative Route. This is because the Alternative Route requires much more new pipe than the Project route. The Commission also considered that some of the existing pipeline of the Alternative Route would likely need to be twinned.


[98] After evaluating the information available to the Commission at the time of the decision, the decision-maker concluded that the potential for adverse effects to the land and environmental resources from the Project pipeline would be sufficiently less than those related to the Alternative Route. Therefore, the decision-maker determined that the Project route was a better route to avoid land and agricultural disturbance. The Commission decision-maker took into account pre-existing rights-of-way where pipelines exist, any need for new rights-of-way, and the land remediation measures set by statute, regulation or permit.

[99] In support of its decision, the Commission refers to the expert evidence provided in the affidavit of Mr. Wilson, a professional engineer and contributor to the Design Technical Subcommittee for Canadian Standards Association Z662. Mr. Wilson has been employed by the Commission as a pipeline engineer since 2012. Mr. Wilson conducted the pipeline review of the Project route and the Alternative Route for the Commission, with a focus on the portion of Encana line approved and built that runs from 12-25 to 06-30. He opines that this component of the Alternative Route proposal would require that the existing line be twinned to add an 8-inch line, for a length of approximately 3,358 metres to provide equivalent capacity as the Project route.

[100] Mr. Wilson also reviewed the technical document Encana submitted for the Project with respect to the EPZ and concluded that, based on the specifications provided, the Project would comply with the Pipeline Regulation, B.C. Reg. 281/2010, and associated Canadian Standards Association Z662 specifications.

[101] Mr. Zimmer states in his affidavit that the length of new pipeline for the Alternative Route (necessitating the establishment of new right-of-way for that route) would be 3,933 metres.


[102] I find that the Commission gave due regard to the Alternative Route proposed in the January Submission. In particular, it considered whether the Alternative Route would result in less disturbance than the Project route.

[103] After reviewing the steps that the Commission took when it assessed the Project route and the Alternative Route, and applying the test set out in section 72(2) of the Act and discussed in Penalty Ranch, I find that the Commission gave due regard to the concerns that Mr. Jorgensen raised in his January Submission regarding the effects of the Project route on the lands associated with the Project, and to the Alternative Route.

[104] I find that when evaluating the Alternative Route, the Commission took into consideration Encana’s March 6th reply regarding that route. Mr. Wilson, after reviewing the Alternative Route in August 2019 for the Commission, determined that the existing pipeline from 12-25 to 06-30 was not of sufficient diameter to meet the needs of the Project, and that an 8-inch line would have to be added for approximately 3,358 metres to provide “equivalent capacity as the Pipeline” in the Project route. I accept Mr. Andres’ evidence that the Project route is shorter than the Alternative Route by over 4,000 metres, and that the Alternative Route would


result in a significant increase in right-of-way disturbance. He also confirms the need for twinning on the existing portion of pipeline of the Alternative Route.

[105] Although Mr. Jorgensen objects to Mr. Andres’ evidence, I have considered Mr. Andres’ evidence because it is relevant to the Alternative Route proposed in the January Submission that was considered by the Commission and, as noted by Encana, the Tribunal may hear new evidence that relates to the issues raised in the appeal. I find that Mr. Andres’ evidence clarifies Encana’s March 6th reply submissions, and that proper notice of his evidence was given under the Tribunal’s Rules

[106] Regarding Mr. Jorgensen’s Alternative Route #2, this proposed route was not made to the Commission as part of the January Submission under section 22(5) of the Act; therefore, it is beyond the scope of Mr. Jorgensen’s appeal under section 72(2) of the Act. However, even if it was properly before me, I would find that Alternative Route #2 raises the same concerns as the Alternative Route in terms of additional disturbance, compression and twinning. This is because most of Alternative Route #2 is the same as the Alternative Route; it is simply 800 metres shorter. Even with the reduction of 800 metres, this route is still significantly longer than the Project route and would result in more disturbance of land without a pre-existing right-of-way during installation than the Project route. I am not dismissive of Mr. Jorgensen’s interest in using infrastructure that was already in place (the 12-25 to 13-29 pipeline), but the evidence has shown it is not as simple as just using the existing line. To be functional and meet Encana’s operational needs, the line would have to be enhanced, causing additional surface disturbance that Mr. Jorgensen did not foresee.

[107] Based upon the evidence before me, I find that the Commission gave due regard to the Alternative Route proposed in the January Submission, and that the Project route is superior to the Alternative Route. Although I have ruled that Alternative Route #2 is not properly before me, I find that the Project route also creates less surface disturbance than Alternative Route #2, and requires the installation of significantly less pipe.

c) Whether the Commission failed to conduct a full and transparent analysis of the economic, social, and environmental effects of the Project and, in particular, whether the Commission failed to give due regard to the economic impacts of the Project on Mr. Jorgensen as land owner.

[108] Mr. Jorgensen notes that the Commission’s mandate and purpose is set out in section 4 of the Act. Section 4 states, in part:

4 The purposes of the commission include the following:

(a) to regulate oil and gas activities in British Columbia in a manner that

(i) provides for the sound development of the oil and gas sector, by fostering a healthy environment, a sound economy and social well-being,

(ii) conserves petroleum and natural gas resources,


(iii) ensures safe and efficient practices, and

(iv) assists owners of petroleum and natural gas resources to participate equitably in the production of shared pools of petroleum and natural gas;

(b) to provide for effective and efficient processes for the review of applications for permits and to ensure that applications that are approved are in the public interest having regard to environmental, economic and social effects;

…

[Emphasis added]

[109] Mr. Jorgensen submits that the Commission failed to properly undertake the economic effects assessment. In the January Submission, the Jorgensens assert that the “Economic … impacts of the proposed development have not … been fully and transparently analyzed.” Mr. Jorgensen clarifies this claim in his notice of appeal, where he states:

The … Commission … has failed to properly consider the … economic impacts on me, as the landowner, and have weighted it all in favour of the proponent.

[110] He elaborates that the Commission must consider the effects the Project would have on the economic value of his property, and because the Commission did not do so, it failed to meet its legislative mandate.

[111] Mr. Jorgensen claims that the Commission should bear the burden of assessing the economic impact of the Project on his land, and bear the cost of the assessment. He suggests this burden arises because the land owner cannot refuse access to their land once the Surface Rights Board makes a right of entry order. Mr. Jorgensen claims that the right of entry order11 granted to Encana to work on his property for purposes of the Project amounts to a “taking”. He relies on Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32 [Dell], for the proposition that when the Commission is exercising its powers, the legislative provisions should be strictly construed. Mr. Jorgensen understands this to mean that the Commission must undertake an economic analysis that evaluates “more than the competing costs of alternative routings”; i.e., the Commission should evaluate competing costs over the life of the Project, and a rationale should be provided for any trade-offs.

[112] In response, the Commission submits that it considered the effects of the Project on agricultural values, and it specifically reviewed the mitigation and reclamation requirements that protect agricultural lands and activities. Further, the Commission considered “the Appellant’s interests in light of the information provided, … and the jurisdiction of the Surface Rights Board to address right of

11 The Surface Rights Board issued an order granting Encana rights of entry for the Project over the Jorgensen property under section 149 of Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361.


entry along with related compensation to land owners”. The Commission submits that the Surface Rights Board has the jurisdiction and authority to compensate land owners for loss of use of their land.

[113] Encana submits that section 4(b) of the Act requires the Commission to consider and balance the environmental and social effects of a proposed project, along with associated economic effects. It submits that the evidence shows the Commission considered social effects (through the consideration and creation of the EMZ, and discussing the potential impacts of the Project with other affected landowners), and the environmental effects. Regarding the latter, the Reasons for Decision show that the Commission considered: avoidance of wildlife habitat or water resources; the legislative, regulatory and permit requirements for minimizing impacts to land, including minimizing the footprint on agricultural land especially where there is no right-of-way in existence; and, reclaiming land after construction.

[114] In addition, Encana submits that the Commission considered the economic effects of the Project and the Alternative Route, to the extent that information was provided to the Commission as a basis for such an analysis. Based on that information, the Commission determined that the Project route optimized access to and collection of gas, required less pipe, and did not require any extra well-pad infrastructure to be built. Encana points out that the Jorgensens did not provide any information about the economic effects of the Project on their property with their January Submission. If they had, the Commission would have considered that information. Further, Mr. Jorgensen has not provided any information about adverse economic effects to his property in his Appeal Submission.

[115] Encana submits that Dell is not applicable to this case. In Dell, the Court was required to determine whether a land owner was entitled to compensation for losses not expressly contemplated in Ontario’s expropriation legislation. The Court held that the legislation must be interpreted in favour of the land owner, and as such, compensation was owed in the circumstances of that case. The Act, which establishes the need for the Commission to assess economic effects, is not the legislation that deals with compensation to land owners for rights of entry. The Dell case would apply to issues of compensation under the Petroleum and Natural Gas Act (i.e., proceedings before the Surface Rights Board), as opposed to the Act. Encana submits that Dell is not relevant to the Commission’s decision which is focused on whether the Project is in the public interest.

[116] Encana also points out that the onus is on Mr. Jorgensen, as the Appellant, to convince the Tribunal, on a balance of probabilities, that the Commission failed to have due regard for his submissions regarding economic effects, or that the Commission should have given his submissions greater weight. It submits that Mr. Jorgensen has not met this onus.


[117] Section 4(b) of the Act describes one of the purposes of the Commission as “to ensure that applications that are approved are in the public interest having regard to environmental, economic and social effects”.


[118] The Reasons for Decision demonstrate that the Commission considered the potential impacts of the Project route on wildlife habitat, including winter ungulate range, and noted there were no such habitats along the Project route. Similarly, the Commission noted that the Project route does not impact water resources (stream, lake, wetlands, and associated riparian management areas). A condition of the Permit requires Encana to comply with the Forest Act for removal of any timber within rights-of-way, which the Reasons for Decision note will be necessary for a “small portion” (0.774 ha) of the Project.

[119] It is clear that the Commission gave due regard to the environmental implications of the Project by taking into account wildlife, aquatic, riparian and land resources and values.

[120] I accept that the impact of the Project route on Mr. Jorgensen’s land is relatively limited—under 100 metres. The Commission considered the potential for spills of hazardous substances during construction and operation through regulatory means12 to ensure the safety of workers and the public, including residents in the area. It reviewed Encana’s Community Relations Summary and its March 6th reply to the Jorgensens, which states in part, “it [Encana] has implemented programs to minimize the effect of industrial activity on communities by providing contractors with a benchmark for appropriate, courteous behavior and minimizing impacts from dust, traffic and noise.”

[121] By considering the potential for managing emergencies and the effects of industrial activity on communities, I find the Commission addressed the social effects of the Permit.

[122] The Commission considered the potential efficiencies of the Project route, and obligated Encana to return the land disturbed by the Project to its former agricultural capability within two years. These considerations show that the Commission considered the economic interests of the applicant, Encana, and affected land owners.

[123] Mr. Zimmer explains in his affidavit that, when determining whether an oil and gas activity can be carried out in accordance with the purposes set out in section 4 of the Act, the Commission must balance a broad range of environmental, economic, and social considerations, including identification of land owners’ interests and concerns in relation to the application. I find that the Commission performed this balancing and gave due regard to the economic considerations it was aware of at the time of the decision.

[124] Mr. Jorgensen’s clarification that the “economic impacts” were impacts on him (e.g., impact to his property value) came after his January Submission, and were not part of it. The Commission was unable to consider the issue at the time of issuing the Permit, because it was unaware of the issue and could not give it due consideration. Furthermore, these specific economic effects are not within the scope of Mr. Jorgensen’s appeal as required by section 72(2) of the Act.

12 Pipeline Regulation (section 3) and Emergency Planning Regulation (section 5), as noted previously in this decision.


[125] In any event, Mr. Jorgensen has provided no evidence of any economic effects on his property. Despite Mr. Jorgensen’s submissions that the onus is on the Commission to provide evidence of the economic effects of the Project on his property, and that Dell requires me to interpret the Act liberally, I find that the principles regarding statutory interpretation determined in Dell, if they apply here at all, do not operate to reverse the onus of proof. As the party making the claim, Mr. Jorgensen has the onus of proving the asserted economic effect on his property. He has not met that burden.

[126] Based on these considerations, I find that the Commission has fulfilled its legislative mandate under section 4 of the Act, to provide “for the sound development of the oil and gas sector, by fostering a healthy environment, a sound economy and social well-being”. The Commission did so by giving due regard to the potential environmental, economic, and social effects of the Project. I find that the Commission assessed the effects related to the Project before issuing the Permit based on the information that was before the Commission at that time, as contemplated by section 4 of the Act.

The Panel’s Conclusion on Main Issue: Was the Commission’s determination to issue the Permit made “without due regard” to a submission previously made by the land owner, Mr. Jorgensen?

[127] After considering the evidence and arguments presented, I find that the Commission gave due regard to the January Submission made by Mr. Jorgensen.

[128] I also considered the implications of Mr. Jorgensen’s proposal for a pipeline using Alternative Route #2, and I found that, even if Alternative Route #2 were properly before me, it would result in greater surface disturbance than the Project route. Additionally, I found that there was no basis to consider the economic effects of the Project specifically on Mr. Jorgensen’s property. These findings do not interfere with my conclusion that the Commission gave due regard to Mr. Jorgensen’s January Submission.

[129] In light of my findings above, I do not need to consider the final issue on the appropriate remedy.

DECISION

[130] In making this decision, I considered all of the relevant and admissible evidence and the submissions of the parties, whether or not I specifically referenced them and reiterated in this decision.

[131] For the reasons provided above, the appeal is dismissed.

“Daphne Stancil” Daphne Stancil, Panel Chair Oil and Gas Appeal Tribunal

August 11, 2020


APPENDIX “A”

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