The B.C. Supreme Court has recently clarified the interpretation
of section 8 of the B.C. Water Act. Section 8 relates to
the power of the B.C. Oil and Gas Commission (OGC) to grant
approvals to oil and gas companies for the short-term use of
surface water bodies such as lakes, rivers, streams, and storage
dugouts. Many oil and gas companies rely on section 8 approvals in
various exploration and development activities.
In Western Canada Wilderness Committee v British Columbia
(Oil and Gas Commission), 2014 BCSC 1919, Bennett Jones LLP acted on
behalf of Encana Corporation and successfully opposed the argument
advanced by litigant environmental groups that recurrent (or
consecutive) use of section 8 approvals improperly permit companies
to withdraw substantial volumes of surface water for fracking. In
the result, the Court upheld the OGC short-term water use approvals
on a recurrent basis. Importantly, the Court found the OGC's
application of section 8 to be proper, whether assessed on a
standard of review of reasonableness (affording more deference to
the OGC) or on the stricter standard of correctness.
In reaching the decision, the Court emphasized the following
the legislative history of section 8 and the larger scheme and
purpose of the Water Act reflect a legislative intention
to allow recurrent short-term water approvals;
the OGC requires that successive section 8 applications for
short-term water use approvals be considered as new or
"fresh" applications with updated information and
the OGC "fully" reviews applications and supporting
material required for section 8 approvals; and
the OGC considers numerous technical, environmental, economic,
public interest and risk factors in granting short-term water use
approvals, whether for original or recurring section 8
While the decision is of significant importance to the oil and
gas industry in B.C., it should be noted that the Water
Act is expected to be replaced by the Water Sustainability
Act in 2015. Under the new legislation, section 10(3)
specifically provides that the OGC may grant recurrent short-term
water use approvals. Accordingly, the Court's decision and the
forthcoming Water Sustainability Act conclusively
determine that the OGC may grant successive short-term water use
approvals to oil and gas operators, provided that the rigorous
application requirements are met.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).