LMG News – April 2024

Welcome to the LMG News, the e-newsletter for all members of the Land Matters Group (LMG)

April 2024

Figure 1 – Canoe navigating a river.

Table of Contents

• Update from the Editor’s Corner
• The LMG in a nutshell
• The LMG – then and 12 years later
• Damage to property
• Access to Lands
• Cost apportionment – A path for landowners and municipalities
• Damage prevention guidance for municipal operations

Figure 2 – Country road across fields.

Update from the Editor’s corner

Re-energized focus on land matters

On 9-10 January, the members of the Land Matters Group Advisory Committee (LMG AC) gathered in Calgary to attend two days of meetings about land related CER initiatives, and to provide feedback reflecting the needs and interests of the stakeholder groups they represent.

During the four-year span since the previous LMG AC in-person meeting, the group’s composition consisting of a dozen or so external members, has evolved significantly. It is now more inclusive with broader regional presence and more diversified with the addition of the electricity sector within the industry group.

The landowner associations represent the provinces of British Columbia, Alberta, Ontario, Quebec and New Brunswick, and the representation within the industry category was boosted with the addition of a provincial electricity and natural gas distribution utility that now complements the two pipeline companies. The lands professionals are well represented with two members – experienced land agents – who speak on behalf of the International Right of Way Association. To close the loop, representatives from the provincial and federal levels of government, including a handful of CER staff, all bring expertise in different areas of land management. In the coming months, more members may be considered, especially from regions and sectors that are not currently represented. For the time being however, the addition of new members has brought a new energy to the LMG AC

The discussions were focused on topics of interest to landowners. On the first day, they opened with the CER’s rules of practice and procedure, and other topics included early engagement activities, cost apportionment and the process involved in abandoning or decommissioning a pipeline. The second day was dedicated to reviewing the current terms of reference and evaluating the progress made on the implementation of the work plan. In the coming weeks, CER staff will be updating the terms of reference to reflect how the members will work over the next three years, including the development of a roadmap listing the issues that collectively the LMG AC will address.

The meeting summary is available on the CER website’s Land Matters Group page.

Véronique Duhamel
Director of Engagement

Figure 3 – Bird soaring in the sky.

The LMG – then and 12 years later

In May 2009, following two years of consultation, the National Energy Board (the NEB, the predecessor of what is now known as the CER) published the Land Matters Consultation Initiative (LMCI) Final Report in which the NEB developed and adopted the Roadmap for Change, setting out specific actions to bring about concrete improvements to address issues raised regarding company interactions with landowners, accessibility of NEB processes, and physical issues of abandonment.

As an outcome of the LMCI, the NEB established and advanced a multi-stakeholder group – the Land Matters Group (LMG) – to provide stakeholders with a two-way conduit of information for the purpose of continually improving the delivery of its regulatory mandate related to land matters.

The LMG, led by the LMG Advisory Committee (now the LMAC), was formed in 2012 and remains in place, continually evolving to represent, advance, and address the land matters interests, concerns, and priorities of Canadians impacted by federally regulated energy infrastructure.

Figure 4 – Members attending a virtual meeting.

Damage to property

A company is responsible for damages to property caused by activities associated with its CER-regulated facility^Footnote 1. Under section 314 of the Canadian Energy Regulator Act (CER Act), a company must do as little damage as possible, and must make full compensation for all damage sustained by the company if the damage is related to these powers.

While there is no one definition of ‘damage to property directly caused by company activities’, this generally includes: damages to physical property (for example, damage to buildings, facilities, vehicles, fences, soil, crops, livestock, surface drainage, or groundwater); damages resulting from nuisance (for example, noise, odours, traffic, disruptions or impediments to reasonable use and enjoyment of the property, and the time required to address the situation); and a combination of these that can happen over the entire lifecycle of the facility. Note that this is not an exhaustive list.

What can you do about damage to your property^Footnote 2?

The CER encourages you to reach out to your local company representative as the first point of contact as early as possible if damages are thought to have occurred.

It is helpful to document the damage to property wherever possible with photos, dates, and a comprehensive description. The following is a useful list when reporting damage to property:

• Identify the company or contractor that caused the damage.
• Explain the damage done in writing, through photos, or both.
• Describe the location of the damage.
• Describe the duration and effect of the damage.

Describe what the owner of the lands expected would happen (for example, the fence would be repaired, or reseeding would be done with a certain type of seed mix).

• Provide any supporting information, such as a quote from a local repair company.
• Send your documented information to the company, including your contact details and preferred method of contact, and keep a copy for your records.
• Detail any steps taken to resolve the issue.

In your discussions with the company, focus on what is needed to restore the damage to a condition that is to your satisfaction. Note that the company must always remain in compliance with the approvals and authorizations applicable to its facility or activity. Where restoration isn’t practical, the landowners may be entitled to monetary compensation. For information on how you can bring land-related compensation disputes to the CER, see Land use compensation on the CER website.

Parties are encouraged to work together to resolve damage claims and, where required, negotiate agreements involving damages. As is often the case, open dialogue between you and the company is an efficient way to resolve disputes about damage to property.

Figure 5 – Farmer looking out into the distance.

What if you have an unresolved dispute with the company?

The CER expects companies to establish and maintain strong relationships with the public and encourages landowners and interested parties to resolve disputes amongst themselves. If this is not possible, the CER’s alternative dispute resolution (ADR) services are available to assist with resolving the dispute. Participation in ADR is entirely voluntary and requires the consent of all parties. If both parties wish to address some or all their outstanding disputes through the ADR process, either party can make a request for the CER’s assistance or submit a completed Complaint Form [PDF 190 KB].

For more information about the CER’s dispute resolution services, please refer to the ADR page on the CER website or contact us at:

Email: ADR-RED@cer-rec.gc.ca
Phone: 403-292-4800 or 1-800-899-1265 (toll free)
Mail: Canada Energy Regulator
210-517 10 Ave SW
Calgary AB  T2R 0A8

Access to Lands

The Canada Energy Regulator (CER) has clear expectations that pipeline or power line companies with facilities under its regulation will engage with landowners prior to gaining access to private lands. Detailed information about Land Agreements is available on the CER website under the Land Matters Guide.

“Access to lands” is a broad definition that can carry more than one understanding or experience, depending on the timing and reasons why the access may be needed by a company operating a federally regulated pipeline or power line. Stipulations regarding access are typically set out in land rights agreements, project orders or regulations such as the obligations of pipeline companies as set out in the Damage Prevention Regulations.

Early Engagement – Project Routing or Siting Phase

Under the Canadian Energy Regulator Act (CER Act), companies have the authority to access lands to determine a project’s feasibility and to assess the risk of potential impacts, the mitigation requirements and methods, and the need to establish measures to ensure regulatory compliance. As part of this phase, the company may also determine areas that will be needed for the project. No project construction takes place during this phase.

Successful early engagement supports relationship building between a company’s land agent and a landowner.

Project Construction and Operation Phases

Prior to construction, the company finalizes the location of the right-of-way, the strip or area of land required by the company and to which it has rights to construct and operate a pipeline or power line. The company will also confirm the location and number of temporary workspaces needed to support project construction.

The terms that grant access to lands during the project construction and operations phases must be negotiated to ensure a clear understanding of everyone’s expectations and obligations. If the company does not already have existing land rights needed for its construction and operations activities, it will negotiate with the landowner for those rights in advance of the use of these lands.

Right of Entry

Right-of-entry disputes can be resolved by the parties negotiating amongst themselves or engaging in a CER-led alternative dispute resolution (ADR) process. ADR is a confidential process where parties can work together to resolve the access dispute, as well as related issues, such as pre-existing concerns. ADR is not a mandatory process and is only engaged when both parties are willing participants.

A company can apply to the CER for a right-of-entry order if it is unable to reach a land acquisition agreement to gain access and rights to the required lands. Along with legislative requirements, a company must demonstrate that it made reasonable efforts to negotiate for land rights with the landowner. More details on the right-of-entry process can be found on the CER’s website.

Figure 6 – Access to private lands for compliance verification activities (inspections)

Access to private lands for Compliance Verification Activities (Inspections)

CER inspection officers may need access to lands on and alongside the right-of-way of CER-regulated facilities, and elsewhere on a landowner’s property to conduct their field inspections and verify compliance responsibilities and activities.

Inspection officers have broad authority through the CER Act to enter lands for the purposes of ensuring safety and security, including the protection of property and the environment. The CER Act permits inspection officers to be accompanied by anyone they believe is necessary to help them perform their duties and functions. Such persons can include Indigenous Monitors.

Emergency Response and Incident Investigation

Access to the whole of the lands is typically for the purpose of responding to and addressing an emergency, such as a spill or release. Full and complete access may also be needed to conduct post-incident investigation activities.

The provisions surrounding situations of this nature are typically described in the land acquisition agreement.

Resources

Contact the company for more details on the specific access rights contained within land agreements or other forms of access agreements.

If you have questions about land matters with respect to CER-regulated energy projects and processes, email LMAS.SCQF@cer-rec.gc.ca. The CER’s Land Matters Advisory Service was created to guide people to the service, resource, or information related to their land matters inquiry.

Cost apportionment – A path for landowners and municipalities

The Canada Energy Regulator (CER) encourages companies and those impacted by regulated facilities to develop and maintain positive working relationships. For many situations, these working relationships exist and through them, issues and concerns can be raised, and successfully resolved.

With the coming into force of the CER Act, the CER now has different means to resolve issues relating to costs incurred because of an authorized ground disturbance, including a process to have the Commission of the CER issue a binding decision to that effect.

The following situations are intended to describe how these cost disputes can be resolved. One example involves a landowner with facilities on their property and the second refers to a municipality with infrastructure near energy facilities. A reminder that this dispute resolution mechanism is intended to only address cost related issues and does not refer to other aspects of a dispute that may or may not have been already resolved between the parties.

A landowner would like to build a new access road as part of their business’ agricultural expansion project. After having consulted with contractors to figure out the location for the road access, the landowner decides that the best location is to cross at a location that happens to intersect with a pipeline right of way. The landowner then contacts their local company representative to talk further about the access road and its location.

The company reviews the request, including plans that detail how the landowner proposes to carry out this road construction, provides design feedback to protect the pipeline's safety and reduce the impact, and approves a crossing agreement. The landowner is pleased to learn that their project can go ahead but is unclear about the considerations that the company included in its approval for the access road.

The landowner discusses with the contractors who inform him that the company’s requirements can be met, but there may be incremental costs related to the prevention of damage to the pipeline. The landowner contacts the company representative and tells them that there are now incremental costs affecting the proposed expansion of their agricultural business operations.

The parties in this case agree to engage in the CER’s alternate dispute resolution (ADR) service, which is a confidential process that entails an exchange of information and is followed by an on-site meeting facilitated by a CER staff. While the parties concede that overall, they have had a positive working relationship, they feel that in this instance, using the ADR service could help them better understand the implications, given the project’s technical nature, and provide opportunities to discuss the apportionment of costs.

A municipality proposes a major infrastructure project, a part of which is to be located within the pipeline’s prescribed area. As required, the municipality seeks the company’s written consent for the ground disturbance.

The company issues a consent for the ground disturbance, which is conditional upon having certain activities completed which are necessary for the safety and integrity of the existing company facilities.

The municipality’s project now needs to incorporate these added design requirements, all of which are tied to preventing damage to the pipeline. The company provides its written consent for the project based on its requirements; however, the municipality and pipeline company are unable to reach a cost sharing agreement.

The municipality applies to the CER seeking a decision from the Commission on how the costs incurred by the municipality are to be apportioned between the company and the municipality.

Figure 8 – Road and bridge construction alongside a lake.

Damage prevention guidance for municipal operations

Our Damage Prevention and Safety team has released an updated Damage Prevention Guidance for Municipal Operations and Maintenance Activities.

The guidance was created for pipeline companies, public works crews, contractors and local governments doing routine municipal operations or maintenance activities. These activities could involve construction, ground disturbances or vehicle crossings near Canada Energy Regulator (CER) regulated pipelines.

“We updated the guidance with a table that clearly outlines which digging activities need to be approved by the CER versus the ones that don’t. For example, excavation or maintenance work that does not disturb the ground 30 cm (12 in) or deeper does not need approval,” explained Shannon Neufeld, Technical Leader of Safety and Damage Prevention.

“Ultimately, we hope the guidance will encourage municipalities to involve pipeline companies early in the project planning phase,” said Shannon.

Shannon explains that contact of any kind with a pipeline can have severe consequences ranging from service disruptions to environmental damage or personal injury. The delays can also have a financial impact, directly affecting the ability to operate efficiently and provide essential services to the local community. By communicating early, municipalities and pipeline companies can prevent the worst from happening.

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Figure 9 – Heavy machinery and group of workers