LMG News – February 2023

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The LMG in a nutshell

The Land Matters Group (LMG) examines and resolves land issues related to energy infrastructure through a collaborative process.

The LMG is a forum for members to exchange information on the protection of the rights and interests of landowners, with the goal of achieving regulatory excellence.

The LMG advisory committee is made up of members from across the country who represent the membership. Members of the advisory committee provide advice and make comments and recommendations to resolve land issues.

Members are landowners, landowner associations, advocacy groups, as well as energy sector associations and companies, land professionals and government officials.

Update from the Editor’s Corner

Having to contend with damages due to the presence of energy infrastructure on private property is not a common occurrence, but it can happen. Property damages, nuisance and other types of inconveniences can be disruptive if not addressed properly and expeditiously.

Another area of concern for many landowners revolves around access to property – who is authorized to access private property and under what terms?

These are two of the more significant and complex subjects that the Advisory Committee of the Land Matters Group has identified. The first subject – Damage to Property, Nuisances and other Impacts – is under review by a sub-committee consisting of CER staff and Advisory Committee members.

As for the second – Access to Property, a project working group (PWG) comprised of CER subject matter experts will be developing a workshop on this topic to be conducted during the Advisory Committee’s quarterly meeting later this month. The PWG will be seeking input from the members who represent numerous categories of stakeholder groups, including landowners, land users and landowner associations, as well as industry, lands professionals, and different levels of government officials. In upcoming issues of this newsletter, updates will be provided.

Véronique Duhamel
Director of Engagement 

Figure 2 – Birds chirping on a branch

Figure 2 – Birds chirping on a branch

What’s new at the CER

A new face at the helm of the Commission

Figure 3 - Mark Watton, Lead Commissioner

Figure 3 - Mark Watton, Lead Commissioner

Commissioner Mark Watton was appointed as Lead Commissioner of the CER and began his new appointment on 29 August 2022. He was first appointed as a Canada Energy Regulator (CER) Commissioner in 2019. Mark Watton has twenty-five years of experience in government and public policy development, litigation and regulatory law. Prior to his initial appointment with the CER, he held the position of Senior Legal Counsel with TC Energy. He has also worked in executive and policy advisory roles for numerous cabinet ministers in several federal government departments and the Prime Minister's office. He graduated from Dalhousie University Law School (LL.B.) with specializations in Marine Law and Business Law. Commissioner Watton also holds a Bachelor of Social Sciences (Political Science) from the University of Ottawa and is a member of the Alberta Law Society.

Part of the Commission’s caseload includes compensation applications, which is a new authority for the CER. The consideration of compensation applications represents an additional area of responsibility for the Commission who prior to the Canadian Energy Regulator Act coming into force in 2019, did not have the authority to adjudicate disputes relating to compensation matters. To learn more about land acquisition costs, damages, and impacts of operation of the prescribed area, we refer you to the article about compensation published in the August 2021 issue of the LMG News.

Figure 4 – Winter landscape with fir trees and mountains in the background.

Figure 4 – Winter landscape with fir trees and mountains in the background.

The importance of relationships

When first approached by a company about a proposed project, landowners may be anxious or may already be worried about what might happen. The question that comes top of mind is “will they be treated fairly?”

The land agent is normally the first person that the landowner encounters during the early engagement and negotiation process. The land agent’s role is to present landowners with project specific information and ensure that when the time is right, they will be able to make informed decisions.

This early stage is often a good opportunity for landowners to share information on site specific details and concerns pertaining to their lands. Open communication and information-sharing by both parties throughout the engagement process is very important for the establishment of a positive relationship. Landowners can take time to review the documents, seek assistance, ask questions and further educate themselves before making any decisions.

It is important for a landowner to put time and effort into understanding information, asking questions, and raising potential concerns early on, or when they arise.

Most land acquisition agreements result from successful negotiations between landowners and companies. All parties are encouraged to work together to negotiate an agreement on the compensation, including provisions for impacts related to construction, such as damages and the size and location of the land rights required for the project.

If a landowner and a company cannot come to an agreement, either party can make a request to the CER for assistance. Section 73 of the CER Act authorizes the CER to make alternative dispute resolution (ADR) processes available if all parties to a dispute directly related to a matter under the CER Act consent. Participating in ADR is voluntary and requires the consent of both parties. About 98% of the disputes referred to ADR are resolved outside of a more formal hearing process.

If parties wish to address some or all their outstanding matters through the confidential ADR process, the CER’s ADR services are available to assist parties in resolving their dispute. If you are interested in learning more about this service, please refer to the CER website or contact us at ADR-RED@cer-rec.gc.ca.

Once constructed, the company’s facilities will likely be in operation for a long time, so it is important to see this lengthy relationship start on a solid foundation.

Figure 5 – Relationship building, one piece at a time.

Figure 5 – Relationship building, one piece at a time.

Property damages, nuisance and other inconveniences

The CER expects companies make every effort to identify, mitigate and address the impacts of their activities. In some instances, however, landowners may sustain damages, and these typically fall under the category of physical damages, nuisance and other inconveniences. When these damages are identified, landowners should contact the company’s representatives to discuss the nature, degree and extent of the impact.
For example, a landowner may inform the company that crops on their property have not yet fully returned to production after completion of construction on the lands. The landowner could describe this impact in terms of area of lands affected, type of crop, current market value for the crop and general operational impact losses to the business. A reminder that although this is only an example, each property is unique, and the impacts can vary even when some circumstances are similar.

The Canada Energy Regulator Act requires companies to make full compensation for all damages sustained because of their activities. The company will discuss with the landowner measures such as restoring, repairing or returning the property to its original state, or to a condition that is to the satisfaction of the landowner, mindful that the company must remain in compliance with the approvals and authorizations applicable to its project or activity.

Most discussions between companies and landowners result in solutions to address the impact or damage, however disputes do occur. The CER has services available to assist in resolving these disputes, such as its Alternative Dispute Resolution service. Alternatively, the Commission can be requested to make a binding decision to resolve the dispute.

Figure 6 – Open gate and fence crossing an open field.

Figure 6 – Open gate and fence crossing an open field.

The land matters advisory service

The CER’s Land Matters Advisory Service (LMAS) has been in operation for over two years. The LMAS was created around the time the Canadian Energy Regulator Act (CER Act) came into effect.

The LMAS is a service available to anyone who has questions about land matters.
A frequently requested source of information is the Land Matters Guide, which can be found online on the CER’s website.  Here are some of the topics that may be of interest to you:

  • Statement of concern
  • Detailed route
  • Right-of-entry orders
  • Land agreements
  • Land use compensation
  • Guidance on land related compensation dispute

If you have questions or concerns, or need assistance in interacting with company representatives, feel free to reach out to the LMAS.

Available in both official languages, the service may be accessed in one of two ways:
Email @ LMAS.SCQF@cer-rec.gc.ca
Phone @ 1-800-899-1265
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Additional provisions in land acquisition agreements

As with any contractual agreement, the terms and conditions within the land acquisition agreement can be negotiated before signing. This means that elements may be added to or taken out of the draft agreement provided by the company. It also means that more explanation can be provided using simple language within the agreement after the legal clauses.

In addition to the required provisions in the CER Act, companies may include details on some of the following:

  • A list of the rights of the landowner and the company under the land acquisition agreement
  • Specific items of agreement relating to the landowner’s ongoing use of the lands
  • Information on the landowner’s responsibilities related to damage prevention and safety
  • Clarification on administrative matters and operational procedures
  • Information on pipeline and power line abandonment process and regulatory accountability

Coming to an understanding from different perspectives

The following article is entirely fictional. This article, and similar ones in upcoming editions, is part of a recurring series of articles depicting a variety of situational scenarios about how landowners and company representatives interact when disagreements come into play. The articles describe not only the context, but also the actions taken by all parties working towards a form of resolution.

“I don’t want this new pipeline to be built next to my property!”

It’s in these terms that Mr. Ancett started the phone conversation with Dale Cooper, the land agent hired by the pipeline company to engage with landowners who stand to be impacted by the construction of a new pipeline that was recently approved by the Commission of the CER.

The Ancetts are a retired couple who recently invested in what they consider to be a dream property – one that is crossed by a slow-moving creek bordered by a stand of trees where different species of wildlife can be seen throughout the year. These landowners understand that their property is not directly impacted by the pipeline construction as it will take place on the neighbour’s property and yet, they still have concerns.

Figure 7 – Photos of the yellow warbler, one of the most common species in North America.

Figure 7 – Photos of the yellow warbler, one of the most common species in North America.

It is part of Dale’s job to engage with landowners to hear their concerns and provide relevant information about the project. During the call, the Ancetts requested an in-person meeting on their property. In their view, they needed to show Dale where they felt that the construction activities planned for later in the year could potentially affect the wildlife habitat. Dale agreed to the request and suggested bringing along the company’s environmental expert who could discuss the more technical elements of the process.

The Ancetts are passionate conservationists who feel very strongly about the environment. They are especially protective of the animals and birds that they have observed by the meandering creek. What concerns them the most is the timing of the construction and how it could interfere with the nesting habits of birds.

During the meeting, Dale and his colleague explained the different steps that a company must undergo before an application for a new facility can be filed with the CER. This preliminary work involved an environmental study to assess the potential risks that the construction and operation of the pipeline could pose to the environment (including risks to plants and animals). The study also listed a series of measures that the company could implement to reduce or eliminate those risks.

Using a laptop, the landowners were shown where to find BERDI – the CER’s new online tool to locate regulatory information.

The landowners located the documentation relevant to this application and with the environmental specialist’s assistance, they reviewed the company’s environmental assessment, as well as the Commission’s decision document that lists all the conditions by which the company must abide, with some specifically targeting the protection of the environmental resources in this area.

From the environmental assessment, the Ancetts realized that the company did take note of the birds’ nesting patterns. They also saw that the Commission included conditions such as a 30-meter setback area where construction would be forbidden until the hatchlings have fledged, thereby restricting the project’s construction schedule during the birds’ nesting period.

In the end, the meeting was successful because the landowners were given the chance to express their concerns and in return, they received the needed assurances to appease their worries. The project construction got underway as scheduled and without opposition by the Ancetts.

On the website, detailed information about the CER’s regulatory expectations regarding environmental assessments is provided.

Related documents:

BERDI - access to environmental and socio-economic information

BERDI” is a new search tool that provides easy access to regulatory data about Canada’s land and water, such as weather and wildlife, species at risk, environmental protection, public safety, and more is now at the disposal of all Canadians.

Landowners wondering about the presence of certain species on their lands can now use the “BERDI” (Biophysical, Socio-Economic, and Regional Data and Information) tool to search data more easily. The data and information were collected from environmental and socio-economic assessments submitted to the CER as part of 40 pipeline applications since 2003, including more than 14,000 tables, 1,800 figures and 4,000 maps.

While this information is available on REGDOCS on our website, BERDI makes it much easier to use keywords and filters to define searches, view results and download data.  

“BERDI makes the depth and breadth of data that supports CER’s regulatory decisions available to the people we serve,” notes Ryan Hum, Vice-President, Data Information & Management, and Chief Information Officer. BERDI can help level the playing field, making it easier for people to participate in the CER’s regulatory process by providing easy access to helpful information, informing the dialogue on climate change, and leading to better decisions in the future.

Figure 8 -  BERDI - the new online tool that provides easy access to regulatory data such as weather and wildlife, species at risk, environmental protection and public safety.

Figure 8 – BERDI - the new online tool that provides easy access to regulatory data such as weather and wildlife, species at risk, environmental protection and public safety.

Damage prevention – safety takes no breaks

Preventing damage to pipelines is vital to the safety of the public and the environment across Canada. The CER’s role in preventing damage includes the development, promotion and enforcement of regulations that ensure people can live and work safely around federally regulated energy infrastructure.

Our Damage Prevention Team helps stakeholders and rights holders learn about these regulations through engagement and compliance verification work. The external website is an important tool in our engagement toolbox because it provides access to many useful publications designed for our stakeholders.
The intended audiences for the website are:

  • Residential and commercial landowners
  • Farmers, producers, and growers
  • Federal, provincial, and municipal government departments and agencies
  • Contractors, landscapers, and developers
  • Regulated companies

We also have four new publications:

Damage prevention is a shared responsibility between the CER and landowners. Check out our updated damage prevention page.

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