Land Matters Group Advisory Committee (LMAC) Meeting Summary Notes – 9-10 January 2024
In-person Meeting
9-10 January 2024
CER Centre 10, Calgary, Alberta
Contents
- In Attendance
- Meeting Opening
- Review and Approval of the Meeting Agenda
- Rules of Practice and Procedure
- Early Engagement
- Cost Apportionment
- Land Matters
- Filing Manual Updates
- Workshop Participation Guidelines
- Historical Timeline of the Land Matters Group ExerciseTerms of Reference 2024–2027 Workshop
- Terms of Reference 2024–2027 Workshop
- Roadmap 2024–2027
- CER Dialogue
- Next Meeting
In Attendance
Marc-André Plouffe, A/VP Communications & Engagement |
|
Canadian Federation of Agriculture |
Lynn Jacobson |
New Brunswick Federation of Woodlot Owners |
Ron Smith |
Union des producteurs agricoles du Québec (UPA) |
Stéphanie Levasseur |
Ontario Federation of Agriculture |
Brian Crews |
| BC Farmers Information Service | Maria Reschke |
Enbridge Inc. |
Larry Yurkiw |
TC Energy |
Graeme Wright |
| Manitoba Hydro | Tim Kirkham |
International Right of Way Association |
Jenna Wood |
Alberta Energy Regulator (AER) |
Carey Patterson |
| Canada Energy Regulator (PWG) | Anne-Marie Erickson |
Absent: |
Darcy Allen |
CER Guests: |
Tracy Sletto, Chief Executive Officer |
DAY 1
Meeting Opening
- Participants welcomed by Véronique Duhamel
- Meeting officially opened by Marc-André Plouffe
- CEO opening remarks
- Tracy Sletto welcomed the group and highlighted the importance of the initiative and the meaningful work its members are doing.
Review and Approval of Meeting Agenda and Meeting Minutes
- Approval of the meeting agenda
- Approval of the November 2023 Minutes
- Land Acknowledgement
Rules of Practice and Procedure
Speakers: Melissa Mathieson, Technical Specialist and Andrea Boras, Market Analyst
Overview:
A comprehensive update to the National Energy Board Rules of Practice and Procedure, 1995 (the Rules) is needed to ensure alignment with the Canadian Energy Regulator Act (CER Act), reflect the CER’s new governance structure, and formalize the practices, processes and terminology, all of which have evolved in the years since the Rules were first in effect.
The purpose of the Rules regulation is to:
- outline the methods of applying to and participating in the CER’s adjudicative processes;
- provide a procedural framework for participants, without the Commission establishing a case-by-case process for every matter; and,
- allow for predictable and timely processes.
The objective for the Rules review process is to deliver regulations that:
- align with the CER Act, including the objectives outlined in the Act’s preamble, such as the commitment to Reconciliation;
- enhance competitiveness through predictable and timely processes; and,
- modernize practices and procedures.
Discussion:
No concern with moving to electronic filing/service, but there should be clear guidance for how landowners/parties can “opt in” to hard copies.
Personal Service – personal service requirements should be maintained.
- Seen as a critical element
- required to reduce barriers
- varying degrees of computer literacy and access – need to communicate that personal service is readily available
- some ethnoreligious groups (e.g., Mennonites, Hutterites, Amish, etc.) across mainly Ontario and the Western provinces have a very limited access to electronics.
- Suggestion for CER to have a clear definition of ‘legal service’ and what it constitutes
Landowners risk information overload via mail and e-mail, regulated industry feels this can make these methods of communication lose their effectiveness.
- Personal service can provide access to renters who generally are not reached via alternative methods.
- E-service is beneficial to accommodate for urgency or hard-to-reach landowners.
Detailed Route and the Plan, Profile, and Book of Reference (PPBoR)
- Formalize process to increase transparency and clarity for landowners
- Include process step related to landowner ability to file statements of opposition
- With regards to publishing notices, a multi-faceted approach to reach people is key
- Some groups may be experiencing engagement fatigue
- Newspapers are less relevant. Publishing schedules are becoming less frequent (especially with Indigenous newspapers) and it can be challenging for companies to meet timelines.
- Internet can contribute to information overload
- Community meetings (notification via Canada Post) have been successful in Quebec, while other regions have struggled with this approach (low attendance)
- Timelines can have a significant effect on company-landowner relationship in terms of information-sharing
- Requirements need to account for a diverse array of landowners, including renters
Detailed Route Hearing – Costs
- A 20-day timeline requirement seems challenging due to competing CER timeline requirements
- Clear definition of “on the same day” regarding service required
- “Cost-eligibility” list would be beneficial
- Transparency is important to ensure landowners have the opportunity to comment
Right-of-Entry Timelines
- “Same day service” expectation can be challenging, considering something that is easier to meet but still meets the objective of the rule to meet
- Landowners may face challenges to meet the 10-day response expectation
- That said, landowners should have already be engaged and aware of the upcoming timeline for response.
- Companies have a 7-day response timeline but can prepare responses sooner
- With trained Land Agents, the ROE process can be relatively simple for a landowner to navigate. Educating Land Agents and holding them accountable is key. Land agent training that reflects CER expectations strongly recommended.
- The CER should have a greater role in working directly with landowners and educating them on their rights, the process, opportunities to intervene etc. (very clear communication tools to map this out).
Early Engagement
Speaker: Michael Benson, Technical Leader
Overview:
This topic was first introduced in November 2023.
The ongoing Filing Manual (FM) and the Onshore Pipeline Regulations (OPR) review processes provide stakeholder groups with opportunities to identify and address issues experienced by landowners during early engagement phase of CER regulated projects.
Brainstorming questions were posed to the LMG AC:
Landowners
- What level of detail are you looking for in the initial project information package?
- What information do you need before deciding to participate in the CER’s application assessment?
- What information do you need before signing an agreement with the company?
Companies
- What type of flexibility or constraints do you have in providing more detailed information earlier?
- What feedback have you received from landowners about the timing and level of detail of information?
Discussion:
- Union des producteurs agricoles du Québec (UPA) framework agreement with Hydro-Quebec (addressing mitigation measures etc.) as a base for regional subgroups to enter into agreements on other recent energy projects (tailored to the specific considerations of that project)
- agreement is solidified once all aspects from the landowner’s point-of-view have been documented
- Entente sur le passage des lignes de transport en milieux agricole et forestier (in French : hydroquebec.com)
- A similar agreement is being developed for the wind sector
- Question: what is the “worst case” scenario for minimum notification to directly impacted landowners? CER: a minimum of 2 months for Section 214 (<40km) applications and a minimum of 4 months for Section 183 (>40km) applications.
- Land sketches
- Regulated companies state that it is not always feasible to have detailed sketches of individual land parcels at the project application stage
- A key consideration is the length of time required for the CER adjudication process
- Suggestion to have a project-level sketch that demonstrates proposed route (and options) superimposed on layers including landownership, biophysical, socio-economics, engineering, and etc.
- Land values and compensation
- Early engagement can inform the range of potential adverse impacts
- Start with generalities and become more specific as project planning and regulatory approval processes progress
- Opportunity for the CER to consider sharing best practices with both landowners and regulated industry.
Cost Apportionment
Speaker: Anne-Marie Erickson, Technical Leader
Overview:
The Commission of the CER has legislative authority to address cost apportionment related to construction of a facility or activity causing a ground disturbance authorized under section 335 (damage prevention) of the CER Act.
Ground disturbance includes any operation or activity that disturbs or displaces the existing soil or ground cover to a depth of 30 centimetres or more.
A “cost apportionment dispute” is when there is:
- a proposal to construct a facility or there is an activity causing a ground disturbance within the prescribed area
- authorization has been obtained from the company (written) or the Commission of the CER issuing an order; and
- incremental costs are incurred and are in dispute between the company and the other party.
Discussion:
- The CER has received a cost apportionment application, a new authority for the Commission since the CER Act coming into force.
- Conversations have started between landowners, regulated industry, municipalities, developers, etc. to manage potential impact to project plans
- Certain areas may be affected sooner given the greater urban development (e.g., the Greater Toronto Area)
- CER: updates to the Rules of Practice and Procedure to include the CER’s authority to decide on compensation and cost apportionment disputes:
- It will be important to have consistency in processes
- Flexibility in compensation process may be key
- The Rules of Practice and Procedure project team are drafting an engagement plan for this topic and are currently open to suggestions and approaches.
Land Matters
Speakers: Lisa Zaplachinski, Socio-Economic Analyst and Usha Mulukutla, Technical Leader
Overview:
Land acquisition overview: Land Agreements (Lisa Zaplachinski)
A company must acquire the right to use land before it can construct, operate, and maintain projects, such as a pipeline or a power line.
Companies work with the owners of the land to negotiate these rights. The results of these negotiations are included in a document called a land agreement, which is signed by both the company and the owner of the lands.
The CER Act includes legislative requirements about how a landowner must be notified that their land may be required. The notification typically includes the following information: a description of the lands required by the company, details of the compensation offered for the lands required, a description of land value, a description of the detailed route process, and a description of the compensation dispute process.
The CER encourages all parties to work together to negotiate an agreement. However, if an agreement cannot be arrived at, the CER provides alternative dispute resolution (ADR) services.
If the parties are unable to come to terms on a land agreement, the company can apply to the CER for a right-of-entry order, which gives a company the right to immediately enter lands as soon as the order is registered, recorded, or filed at a local land titles or registry office.
After the company registers the land agreement on the title for the lands, it remains in effect even after the property is sold or developed.
Discussion:
The group discussed how – in comparison with the provincial regulators – there is limited understanding of the CER’s responsibilities. Opportunities for collaboration between the CER and the companies could materialize when landowners are introduced to the CER and learn about the process and regulations.
A tool that could help landowners understand the process, including their rights and responsibilities, is a reintroduction to a modified (printed) version of the Land Matters Guide.
A discussion ensued regarding who determines the value of the land, a discussion which demonstrated that this question is one that is raised often. Even though companies are not mandated to use evaluators or appraisers, they are required to demonstrate the reasoning behind the estimated value because companies may be called to justify compensation offers to the Commission.
Compensation Dispute
Aside from the negotiation between parties, the CER offers the following resolution options regarding compensation disputes. The first is through ADR (voluntary, confidential and non-binding) and the second involves a decision rendered by the Commission of the CER (an adjudication process that is not confidential, but it is binding).
The CER encourages companies and landowners to negotiate their own settlements (either between themselves or using the CER’s ADR services). The CER has ADR staff to help parties better understand the issues, work through disputes, and find practical solutions. About 98% of all disputes (not just compensation disputes) referred to ADR are resolved outside of a more formal hearing process.
As for adjudication, compensation dispute hearings are only available for those who are entitled to compensation under Part 6 of the CER Act. During this process, the Commission will decide compensation matters on a case-by-case basis, consider the relevant evidence and arguments submitted by all parties regarding the dispute, and publicly issue its decision with reasons following a hearing.
The CER Act lists the factors the Commission must consider when determining compensation. Factors include the market value of the lands taken by the company; the loss or adverse effect of use to the owner of the lands taken by the company or whose use is otherwise restricted; and the nuisance, inconvenience and noise that may reasonably be expected to be caused by or arise from or in connection with the operations of the company. There is no participant funding available for CER compensation hearings.
The Commission may be asked to review, vary, or rescind its own decision. Decisions made by the Commission may also be appealed to Canada's Federal Court of Appeal. Each hearing is unique, and the Commission will provide detailed instructions when a hearing order is issued.
Typically, a hearing will involve some or all of the following processes:
- Application received;
- Commission issues hearing order;
- Oral hearing;
- Decision.
Discussion:
It is in the best interest of the company to resolve a compensation dispute outside of the Commission.
The group raised the concern of the compensation process affecting access to lands, and that access to land should not be a condition of a finalized compensation agreement. As it stands, the current process fosters conflict. A suggestion was made to include a mechanism with which parties can agree to project specifications without having defined compensation and allowing right of entry; the compensation portion can then be negotiated.
One tool to help resolve conflict is to use the CER’s ADR services. However, there must be an equitable base for landowners to be able to participate fully and fairly. Many landowners do not have the resources to negotiate in their best interest. There should be some framework for landowners to know they are being offered something fair and reasonable. Land agents can work to support communities to uphold fairness.
There is evidence to show that these negotiations can cause conflict within communities.
Overview:
Abandonment / Decommissioning (Usha Mulukutla)
The presentation began with an overview of abandonment matters within the mandate of the CER and its Commission. The CER regulates abandonment and decommissioning through the CER Act and regulation, filing requirements, regulatory decisions and compliance and condition filings.
Abandonment constitutes the discontinued service of a pipeline from point A to point B, for which the pipeline may be removed or kept in place with all service non-operational. Decommissioning a pipeline involves removing service from a portion of the pipeline, while maintaining service within the same system.
The CER looks at several considerations including socio-economic, environmental, safety and financial effects of the proposed decommissioning when deciding whether to approve or deny an application. Public hearings for decommissioning a pipeline are not required; however, the CER can hold a hearing if it deems it to be in the public interest.
More detailed guidance on these processes can be found here:
- CER – Filing Manual – Guide K – Decommissioning (section 45.1 of the OPR) (cer-rec.gc.ca)
- CER – Filing Manual – Guide B – Abandonment (cer-rec.gc.ca)
Considering the CER regulates the lifecycle of a pipeline, this includes the process of abandonment or decommissioning and the maintenance and monitoring of those pipelines.
Even after a company has abandoned or decommissioned its pipeline(s), it is responsible for monitoring the abandoned facility until all conditions are met. If the pipeline is left in place, monitoring of the abandoned facility continues. If removed, monitoring will be conducted until the land is reclaimed and restored.
Discussion:
During the discussion, the matter of how these processes interact specifically with other federal and provincial bodies and legislation was raised. Further, it was stated that even these processes are just as stringent as other project applications.
Filing Manual Updates
Speaker: Anne-Marie Erickson, Technical Leader
Overview:
A draft Filing Manual Guide (A.4 Lands Information) was prepared for discussion purposes with the LMG AC. Current and proposed amendments were outlined to obtain feedback.
For more information, see the current Filing Manual.
Discussion:
- More information is needed.
- Suggestion to provide a “Filing Manual 101” (1-2 pages)
- 2 weeks prior to April meeting
- Present current filing manual structure and compare it against the proposed changes
- 2 weeks prior to April meeting
- The Secretariat to propose a strategy in order to best seek feedback
- Extra care should be taken when proposing changes as to avoid unintentionally prompting standardized responses (boilerplate text).
DAY 2
Workshop Participation Guidelines
- Everyone has wisdom.
- We need everyone’s wisdom for the wisest result.
- There are no wrong answers.
- The whole is greater than the sum of its parts.
- Each person will hear and be heard.
Historical Timeline of the Land Matters Group Exercise
2012 |
LMG formed: Company interaction with landowners |
2016 |
LMG Renewal:
|
2018 |
Terms of reference CER modernization Development of Work Plan:
|
2019 |
Canada Energy Regulator Act: On 28 August 2019, the National Energy Board became the Canada Energy Regulator More information about the transition involving the Regulations is available on the CER website. |
2020 |
Covid February workshops:
|
2023 |
Early Engagement Access to land Damage to property Communication more structured since 2021 (newsletter) Increased momentum: during and after the pandemic the group had to redevelop its working dynamic; together with efficient coordination and committed group members from various fields the group has a collaborative dynamic. Members noted a shift in the interaction between the CER and the Advisory Committee (AC), including a greater focus on collaboration, as well as a clearer and more action-oriented communications. AC is also more inclusive with greater regional representation and more diversified with a greater range of representation within a category (e.g., the addition of non-typical representation: electricity sector within the industry group and woodlot owners within the landowner sector) |
2024 |
What projects and products does the LMG AC want to focus on during the 2024-2027 time period?
|
References
- Crossing guidance
- Damage prevention
- Guide to land agreements
- Land matters guide
- Group Composition
- Public Engagement Report (this document is a compilation of the post-meeting responses to the engagement survey posted on CER Dialogue).
Report and status review of the current LMAC Work Plan
- Damage to property: a document from the landowner’s perspective on property damages has been drafted by the project working group. It will be shared with the LMAC for a final review prior to being posted on the CER website. Deadline: end of the fiscal year (31 March 2024).
- Access to lands: a document drafted from the landowner’s perspective was prepared by the project working group. It will be shared with the LMAC for a final review prior to being posted on the CER website. Deadline: end of the fiscal year (31 March 2024).
- Early engagement: this topic has been discussed on a couple of occasions already and discussions will continue as work involving the filing manual review process progresses. This topic will be included in the 2024–2027 Roadmap.
Terms of Reference 2024–2027 Workshop
A new Terms of Reference is in development and will be presented to the LMAC for review. Input from subcommittee members will be required.
Roadmap Planning and Prioritization Activity (Must, Should, Could)
Must:
- Definition of Land Matters
- Information kit for Landowners
- Strategic Planning / 2024–2027 Roadmap
- Opportunity to engage on the Filing Manual updates
- Revisit Excel worklist from 2019 for situational awareness
Should:
- Increase awareness of Indigenous land matters
Could:
- N/A
Roadmap 2024–2027
Education Information |
Internal Management and Operations |
Strategic Planning |
|
Committee-driven agenda |
Operational Structure |
Plans and Actions |
Reflect and Assess |
Member sharing |
Organizational Chart |
Expectations, goals based on guiding principles |
Participation of others (e.g., Electricity reps) |
Onboarding of new members (sharing the Terms of Reference) |
Efficient, accessible secretariat (continue from ToR, roles and responsibilities) |
Annual review/ update of workplan (2024–2027 Roadmap) + annual action plan |
Goal to include geographically diverse representatives |
Formalized onboarding of new members |
Feedback mechanism |
Focus on outputs/results |
Consideration to add an Indigenous representative and additional landowner groups to the LMG AC |
Update #14 meetings to include virtual meeting efficiency Meeting for a purpose |
Celebrate success |
Feedback and/or data from industry and/or landowners |
|
CER 101 |
Chair: CER only or co-chair? |
Annual schedule with goals/targets |
Continual improvement process |
Confirm definition of “Land Matters” |
More specific language (in purpose and guiding principles) |
Clarify how follow through/outcome are identified |
Measures: More details More frequent |
More extensive list of acronyms and definitions |
Clarify/Review membership |
||
Conflict resolution (process rules for disagreement) |
|||
Continuity of individual membership |
|||
Other:
- Indigenous context (CER-internal liaison/rep)
- Indigenous exposure
CER Dialogue
Purpose: To improve the members’ access to LMG generated documents and provide members with a portal that allows access to discussion forums.
LMAC portal*: LMG – Advisory Committee / Comité consultatif du GQF
For ease of information sharing, the project page on CER Dialogue will become the only point of access and the CER documentation will be posted in both official languages. The members can contribute content in the language of their choice.
* Please note that the page is an access protected page, so members need to register and be admitted to the group to view and comment on the information.
Next Meeting
The next meeting will be virtually held on the 30 April 2024 from 10:00am – 1:00pm Mountain time.
- Date modified: