A Homeowner Is Told He Has No ‘Standing’ to Block Nearby Fracking

A landowner who has tried for more than a year to halt a potential earthquake-inducing fracking operation near his home has learned less than a week before the drilling is to commence that his request for an appeal is denied.

Richard Kabzems lives in a neighbourhood halfway between Dawson Creek and Fort St. John, in the heart of British Columbia’s most intensely developed methane gas zone.

Kabzems says he is troubled that the Energy Resource Appeal Tribunal took over six months to deny his request for an appeal — months that he could have spent trying to fight the project by other means.

The decision, communicated to Kabzems late Monday, followed on the heels of media reports on increasing fracking-induced earthquakes in the Montney Basin in The Tyee and other news outlets, including this segment on CBCs flagship TV news show, The National.

Kabzems, who featured prominently in those reports, subsequently contacted the tribunal again to get a response on his request for a hearing. He also wrote directly to Energy Minister Adrian Dix on Friday.

In the letter, Kabzems informed Dix that local residents were recently told by the BC Energy Regulator, which is tasked by the provincial government with expediting development permits to oil and gas companies, that it had granted Ovintiv permission to commence drilling at the disputed well site as early as this Monday.

Drilling is the precursor to fracking.

“When drilling begins, the ERAT appeal becomes largely pointless,” Kabzems told Dix. “‘Justice delayed is justice denied.’ The Province of British Columbia, the BC Energy Regulator and Ovintiv appear to have created a situation where damage to people and property could occur while an appeal of the decision has not been heard.”

The letter ends with an appeal to Dix to “put a pause on Ovintiv’s planned drilling… to allow time for the appeal and legal process to be completed.”

After receiving a copy of that letter, The Tyee filed questions in separate emails to Dix and to Darrell Le Houillier, the tribunal’s chair.

Within hours of those emails, both Kabzems and The Tyee were informed that a decision had been made.

Le Houillier did not disclose what the decision was in response to questions filed with him by The Tyee on Monday, but did say that it would be published in a matter of days on the tribunal’s website.

However on Tuesday afternoon the tribunal posted its decision rejecting the appeal. A key finding was that Kabzems lacked standing to file an appeal.

Lacking standing

Under B.C.’s Energy Resource Activities Act appeals are almost solely limited to landowners on whose property a proposed and disputed development has been permitted. Other nearby landowners rarely have standing.

Kabzems says that he appealed to the tribunal anyway, hoping that the tribunal would see that the circumstances surrounding his appeal warranted an exception.

The big worry for Kabzems and many of his neighbours is that the proposed Ovintiv well pad would have 24 methane gas wells drilled and fracked on it, with each fracking operation having the potential to generate a potentially deadly earthquake.

The tribunal acknowledged the numerous concerns that Kabzems and his neighbours had raised but found that Kabzems had no standing to raise such concerns, even though his home is within 1.3 kilometres of the controversial well pad, which means that he and other local residents are supposed to be consulted about their concerns.

“The Appellant’s property is located 1.3 km from the activity area and no party submits that the activity area is on the Appellant’s property. There are two intervening parcels of land between the Appellant’s property and the activity area. Given these facts, I find the Appellant’s property is not on or adjacent to the ‘activity area’ as defined in the Permit,” reads the decision, written by panel chair Nancy Moloney.

Moloney’s finding on standing was precisely what Ovintiv and the BC Energy Regulator had argued, a finding that does not surprise Kabzems.

Longer wells, more earthquakes

Currently, the average fracked methane gas well in the Montney is drilled a couple of kilometres into the earth and then horizontally for some three kilometres.

Some horizontal wells in northeast B.C. and neighbouring Alberta are much longer, including one recently drilled in northern Alberta that was just shy of six kilometres long.

Fracking in northeast B.C. now involves pumping millions of gallons of water under extreme pressure down into the earth along with sand and chemicals. This pressure fractures the rock and allows trapped deposits of gas and light oils to be pumped out.

But it can and often does trigger earthquakes, some of which have tipped the scales at magnitudes of 4.5 and 4.6 in B.C.

Kabzems and his neighbours have experienced the terror of having their houses shaken during such induced earthquakes and it is the main reason why they lobbied hard for the BC Energy Regulator to not issue a drilling and fracking permit so close to their homes.

In a letter to the regulator in April, Kabzems and a number of his neighbors wrote the Energy Regulator urging it to deny Ovintiv’s application.

No control

“BCER has no control over either the timing or magnitude of earthquakes induced by hydraulic fracturing after permits have been granted,” the letter reads in part. It goes on to urge the regulator to not approve the proposed well pad and to place a moratorium on any further well approvals within five kilometres of the neighbourhood.

The regulator subsequently approved the well pad while not responding directly to any specific concerns about earthquakes raised by Kabzems and many of his neighbours. Kabzems has been told in the event of a fracking-induced earthquake his home insurance will not cover any damages.

Kabzems then appealed to the Energy Resource Appeal Tribunal, hoping that it would grant a hearing allowing him to argue that the proposed development carried with it the potential risk of powerful fracking-induced earthquakes similar to those that killed people and destroyed homes in China’s Sichuan province in recent years.

Kabzems says the frustrating thing about the regulation’s narrow definition of who has standing to appeal is that the regulations themselves predate modern-day fracking technology.

Out-of-synch regulations

Kabzems notes that prior to 2005, when the first high-water-volume fracking operation occurred in a horizontal well not far from his home, oil and gas companies were typically drilling wells straight down into porous rock formations. In effect it was like placing a large straw into the ground and sucking up the gas and oil.

Limiting the right to appeal such an operation to just the directly affected landowner may have made sense in such circumstances, Kabzems told The Tyee. But today’s realities are entirely different.

“In the fracking world, where they drill horizontally at least three or four kilometres in different directions, and the fracks may cause seismic activity one, two, three kilometres away from where the fracking actually takes place, many people can be affected and have absolutely no voice,” Kabzems said.

Kabzems expressed frustration with the tribunal’s slow response to his appeal request.

If tribunal’s major reason for denying a hearing is that Kabzems doesn’t have standing, that decision need not have taken six months.

“Are they so under-resourced that it takes this much time to even do the first screening?” Kabzems said. “If this decision is a straightforward thing for the tribunal, people are not being well-served by a long delay when everything piles up at the last minute before drilling starts.”

In response to questions filed by The Tyee, tribunal chair Le Houillier said that the tribunal “is aware of the time-sensitive nature of these appeals and endeavours to complete them as soon as its capacity and the requirements of any given appeal allow.”

“While the Tribunal appreciates that the parties to this appeal would have preferred an earlier answer, a decision was rendered before any work was undertaken,” Le Houillier wrote in an email.

When contacted again by The Tyee and informed that a great deal of work had, in fact, already been done at the well pad in advance of potential drilling as early as next week, Le Houillier responded.

“I am unaware of the state of work at the drill site, but the Tribunal provided a decision on Mr. Kabzems’ appeal as soon as it was able to, given its operational constraints.”

The gathering storm

Kabzems’ fight comes at a critical time for fracking developments in northeast B.C. The first exports of liquefied natural gas from a massive new facility in Kitimat are expected later this year and the Montney Basin will be the primary source of the raw gas.

A recent report by David Hughes, an earth scientist who has studied the energy resources of Canada and the U.S. for the past 40 years, notes that as of the end of 2023 nearly 17,000 wells had been drilled in the Montney, which extends from northeast B.C. into northwest Alberta.

About 30,000 new wells are expected to be drilled and fracked in the region, with 15,000 of those wells in northeast B.C.

The Tyee did not receive answers to several questions filed with Dix.

The Tyee also requested an interview with Kabzems’ MLA in Peace River South, Conservative Larry Neufeld, but received no reply.