Bennett Jones
Written by David McKinnon and Russell Kruger
Caution should be exercised when requesting, reviewing or sharing seismic data held by a regulatory authority, as demonstrated by the latest decision in a series of lawsuits commenced by Geophysical Service Incorporated (GSI).
GSI is a geophysical services company headquartered in Calgary that creates and markets offshore seismic data. In the last several years, GSI has commenced 20 or more lawsuits in the courts of Alberta, Nova Scotia, and Newfoundland and Labrador against oil and gas companies, off-shore regulatory boards, and at least one province. The lawsuits are concerned with seismic data shot by GSI for its own use and licensed to third parties. GSI asserts that it retains full rights of ownership in the data either as a trade secret, confidential information, or through copyright, notwithstanding that the data has been: (1) licensed to third parties; and (2) disclosed to Canadian regulatory authorities pursuant to a regulatory framework requiring the same.
The most recent decision in this series of lawsuits is Geophysical Service Incorporated v Martin, 2013 CanLII 71082 (NL SCTD) [Martin]. In Martin, GSI sought to appeal a decision of Nalcor Energy (Nalcor), a provincial energy company headquartered in St. John's, Newfoundland and Labrador, which denied an access to information request made by GSI pursuant to privacy legislation. The request sought disclosure of Nalcor's use or distribution of seismic data obtained from the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB). The Court stayed the appeal on the basis that it was premature, holding that the outcome of a companion action in which the question of whether GSI retained any proprietary rights in seismic data disclosed to C-NLOPB would affect the outcome. The trial in the companion action, while not yet scheduled, is anticipated to be an interesting one that may address the underlying legal merit of GSI's position with respect to the multitude of proceedings it has brought. Until the underlying legal question is addressed, energy companies viewing or contemplating acquiring seismic or similar data from regulatory authorities should be aware of the potential risks and exercise caution in proceeding.