On October 10, 2014, the British Columbia Supreme Court
("Court") issued reasons in Western
Canada Wilderness Committee v. British Columbia (Oil and Gas
Commission), 2014 BCSC 1919. In this case, the petitioners,
Western Canada Wilderness and Sierra Club of British Columbia
Foundation (together, the
"Petitioners"), brought a judicial
review application against the British Columbia Oil and Gas
At issue was the proper interpretation of the Water Act
as it relates to the granting by the OGC to the oil and gas
industry of short-term water use approvals under s. 8
("Approvals"). The issue focused on
whether recurrent Approvals may be granted, and whether such
Approvals may extend beyond the 24-month maximum term specified in
the Water Act. According to the Petitioners, the OGC
consistently acted in contravention of the Water Act by
granting repeated Approvals which, in effect, authorized companies
to use and divert water for more than one term and for more than 24
months. The Petitioners' main concerns were the negative
effects of water use for hydraulic fracturing (or
As the majority of the subject Approvals were issued to Encana
Corporation ("Encana"), Encana was also
a respondent in the proceedings. The Court ultimately dismissed the
1. Issue of Standing
As a preliminary matter, the Court addressed the issue of the
Petitioners' standing. The Court decided the Petitioners had
standing to bring the matter to the Court, as the Petitioners were
not appellants who could bring an appeal to the British Columbia
Environmental Appeal Board under the Water Act. Further,
the Petitioners received public interest standing, as: (a) the
matter involved an important issue of statutory interpretation
affecting an important resource owned by British Columbians; and
(b) the Court's proceeding was the only reasonable and
effective way for the Petitioners to adjudicate the issue.
2. Standard of Review
In deciding the standard of review was reasonableness and
deference should be afforded to decisions of the OGC, the Court
reasoned, among other things, that the Water Act is a
statute the OGC has particular familiarity with, and the OGC has
considerable expertise in performing its mandates under that
3. Interpretation of Section 8
The Court held the proper interpretation of s. 8 of the
Water Act is such that Approvals may be
granted on a recurrent basis, as is currently done by the OGC. In
reaching this conclusion, the Court emphasized that: (a) there is
no prohibition against consecutive Approvals in the Water
Act; and (b) recurrent Approvals are granted pursuant to fresh
applications which are reviewed by the OGC on a de novo
basis, thus providing necessary "checks and balances".
The Court ultimately held the OGC's policies associated with
Approvals are reasonable and entitled to considerable
As an aside, the Court noted the Water Act is soon to
be replaced by the Water Sustainability Act, which will
specifically provide that Approvals may be recurrent.
4. Notes on the Oil and Gas Industry
In its reasons, the Court also highlighted several interesting
facts from the evidence in regard to Approvals and the oil and gas
In 2009, oil and gas companies were
authorized to use a maximum of 0.0058% of all surface water
allocated for use through licences and Approvals in British
Columbia. The hydro power industry was allocated 98% of surface
water during the same period.
For the 12-month period ending
December 2012, the OGC granted Approvals for a total of 20.4
million m3 of water, of which 7 million m3
was used for fracking.
54% of water used for fracking in
2012 arose from Approvals – a number which was substantially
lower than that in 2009.
The OGC developed specific policies
regarding the granting of Approvals for fracking purposes.
Generally, Approvals for fracking are not issued for terms longer
than 12 months.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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