Balance Between Public & Operator Interests in Offshore Petroleum Resources Data is Set: Supreme Court of Canada Won’t Hear Appeal in Geophysical Service Incorporated (GSI) v. Encana Corporation
November 30, 2017
By Daniel Watt, Partner at McInnes Cooper,
Sara Mahaney, Former Lawyer at McInnes Cooper
On November 30, 2017, the Supreme Court of Canada denied Geophysical Service Incorporated’s (GSI) application for leave to appeal the decision of the Alberta Court of Appeal in Geophysical Service Incorporated v. EnCana Corporation et al. With this, the Alberta Court of Appeal’s decision is final, and the balance between public and operator interests in offshore petroleum resources data is set: seismic operators may initially have copyright over seismic and other geophysical data submitted compulsorily to Canada’s offshore petroleum regulators, but the offshore petroleum legislation effectively overrides that copyright. Under that legislation, after a prescribed period of “privilege,” regulators can publicly disclose, and the public can freely copy, that data. Here’s the fallout from the Supreme Court’s denial of GSI’s application for leave to appeal:
The Leading Decision. While the Alberta Court of Appeal’s decision isn’t technically binding in other provinces’ courts, it’s now the leading decision on this issue. Courts in other provinces aren’t required to follow it, but there’s no doubt they will look to it for guidance, and it will likely be persuasive.
Much Certainty. There’s now no question that a significant portion of GSI’s claims, which GSI has pursued over the last number of years through costly litigation spanning the country, cannot succeed. The defendants in those legal actions, regulators and industry now have certainty that the regulatory regime governing offshore petroleum activities allows the regulatory boards to freely disclose, and the public to copy, seismic data after the expiration of the applicable statutory confidentiality period.
Remaining Uncertainty. But GSI’s litigation efforts aren’t yet finished. GSI has asserted claims against many defendants for breach of specific seismic data licence agreements that weren’t the subject of these Alberta decisions. And in Summer 2017, GSI commenced an action against Canada and the provinces of Newfoundland and Labrador, Nova Scotia and Quebec asserting the regulatory regime – which the Alberta courts described as “confiscatory” – amounts to a taking of GSI’s copyright in its seismic data for which they must compensate GSI. The impact of today’s decision and its confirmation of the Alberta decisions on GSI’s ability to continue its pursuit of these issues remains to be seen.
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