LMG News – October 2024

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

October 2024

Figure 1 – Canoe navigating a river.

Figure 1 – Canoe navigating a river.

Table of Contents

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 while supporting 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 industry sector companies, land professionals and government officials.

Update from the Editor’s corner

During its spring meeting, the Land Matters Group Advisory Committee (LMG AC) held a virtual meeting to discuss three main topics that were initially introduced during an in-person meeting a few months earlier:

  1. Land Matters Components in the CER’s Filing Manuals Review: The LMG AC addressed matters related to land components within the context of this initiative, including guidelines, procedures, and regulations related to land use, ownership, and management.
  2. LMG AC Terms of Reference: The committee discussed updates to its Terms of Reference (TOR), a document that defines the committee’s purpose, responsibilities, and scope of work.
  3. Roadmap 2024-2027: The LMG AC reviewed a roadmap for the next three years (2024-2027). This is a new approach that will enable the LMG AC to better outline and track its progress in terms of goals, priorities, and planned initiatives.

Overall Impressions

A lot of effort was invested this past year to ensure we have greater diversity within the advisory committee. Landowner representation was added in the provinces of Ontario and British Columbia, and we also added representation from the electricity sector within the industry group. Even with this last addition, there is consensus that the industry category is under-represented. This summer, we initiated a recruitment initiative to include representation from a Group 2 company, as well as representation at the municipal level of government and another landowner association that will complement the landowner contingent.

Having a few new people around the table always brings renewed energy, a change that was clear during the January in-person meetings and continued during the April meeting. This drive also extends to the members of the LMG project working groupFootnote 1 (LMG PWG) who demonstrated greater motivation to not only work on, but also lead projects.

Filing Manuals Review

CER staff made a Filing Manual 101 presentation that included examples of land matters submissions in applications, and a proposed draft of Guide A.4. This manual serves the following purposes:

  1. Assist CER-regulated companies to identify the instances where a filing is necessary, pursuant to the CER Act and CER/National Energy Board (NEB) regulations;
  2. Outline the filings needed for most applications within the jurisdiction of the CER; and
  3. Provide guidance as to the type of information the Commission would typically need to render a decision.

The members shared the following comments:

  1. The proposed updates to Guide A.4 were well received, with members finding them more readable and easier to understand.
  2. There was a call for companies to be more transparent about their compensation approaches.
  3. The term “third party crossings” was suggested to be expanded to include “utilities and features” to cover a broader range of applicable scenarios.
  4. A significant portion of the discussion centered around the new sub-section on compensation methodology.

This feedback will be instrumental in refining the text of Guide A.4 and the broader Filing Manuals project. It’s great to see such collaborative efforts towards improving the clarity and comprehensiveness of these important documents.

Terms of Reference and Roadmap 2024-2027

Work has started on updating the current LMG AC Terms of Reference to better reflect how the group operates and how it can more consistently provide input into CER initiatives and deliver recommendations that meet the needs of the organization.

CER staff also presented a draft version of the Roadmap 2024-2027. The content of this draft was based on comments collected from the facilitated session during the January meeting.

Some key comments included:

  1. Focus on prioritizing and closing out the one outstanding item (early engagement) from the 2019 Workplan;
  2. Produce an information kit for landowners; and
  3. Develop clear targets, including evaluation measures of outcomes.

Participants also discussed developing a high-level guidance document on how members can share information and report back to their own organizations, the need to take into consideration accessibility, and the inclusion of information or education on how Indigenous land matters could impact other stakeholders’ land interests.

If you require further information about any of the items described above, feel free to contact us at LMG-GQF@cer-rec.gc.ca.

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

Heather Adams
Acting Director of Engagement

Figure 2 – View of a watercourse surrounded by forest and mountains in the distance.

Figure 2 – View of a watercourse surrounded by forest and mountains in the distance.

Filing Manuals – A Resource for the Land Matters Group

The Canada Energy Regulator (CER) is seeking feedback for the Phase 2 review of the Onshore Pipeline Regulations (OPR) and the Environmental and Socio-Economic Assessment and Lands portion of the Filing Manuals (FM).

The OPR are the main regulations we use to oversee pipelines in Canada. The FM explains what to include in an application for a potential project. Some of the proposed changes could impact landowners.

Phase 2 of the OPR/FM review launched on 17 June 2024. Engagement for this phase will take place from June to December 2024. The feedback collected will inform potential improvements to both the OPR and the FM, as well as any other related guidance and internal processes. Feedback received will be posted publicly in early 2025. The CER completed Phase 1 engagement in 2023. See our What We Heard Report to read about the key themes we heard in Phase 1.

What are the CER Filing Manuals?

The Filing Manuals include a document for pipelines and associated facilities and activities and another document for international and interprovincial powerlines. The pipeline filing manual is approximately 310 pages while the electricity filing manual is 130 pages. The Filing Manual is a key tool to communicate the Regulator’s filing requirements, including engagement, impact assessment, project design, and emergency preparedness.

What are the purposes of the Filing Manuals?

  • Provide guidance as to the type of information the CER would typically need to make a decision, however, more information may be required at the time of review based on unique circumstances
  • Encourage complete applications to reduce the amount of additional information that must be requested (likely fewer information requests)
  • Share with Indigenous communities and stakeholders the requirements that the CER has of companies

What are the key areas of Filing Guidance?

  • Engagement
  • Engineering
  • Environmental and socio-economic assessment
  • Economics and financing
  • Lands Information

The Filing Manuals provide guidance and set out requirements. They are not rules, regulations, orders or directions. No penalties can be imposed. If a filing does not contain all the information required in the Filing Manual, the Commission may determine that the application or other filing is not complete enough for assessment or information requests may be asked to clarify the information.

What are the key areas of Filing Guidance?

Previously the Filing Manuals were static documents updated and published irregularly. They are now posted online, are easier to update, and will be updated on an on-going basis, as needed. Updates will incorporate feedback from CER staff, the Commission and external parties including regulated companies, Indigenous peoples, NGOs, landowners and the public.

What is the approach to updates to the Filing Manual?

The approach includes:

  • Identifying necessary content updates.
  • Ensuring that applications and other filings contain data and reporting that supports high-quality impact assessment.
  • Simplifying or eliminating requirements, as appropriate.
  • Looking at recurring Information Requests as possible symptoms of inadequate filing guidance.
  • Incorporating other guidance that has been issued (guidance notes, advisories, guidelines, etc.)
  • Engaging and consulting as appropriate:
    • Indigenous peoples, landowners, industry, public.
    • Coordinate methods and timing for engagement with other CER initiatives, such as the Onshore Pipelines Regulations Update Project.

What is the CER’s Regulatory Context for Updating the Lands Information section?

CER assessment processes for energy infrastructure are heavily focused on addressing and responding to interests and concerns of Indigenous peoples, landowners and other interested parties. The resulting regulatory outcomes must deliver the highest standards of environmental protection, safety, and security, while advancing Reconciliation with Indigenous peoples.

The Filing Manuals support and guide project proponents to develop applications that anticipate and address rights, interests and concerns of affected people early in project design and throughout the planning phase. This supports more efficient assessment processes, where participants see their broad interests and concerns addressed in project applications and allows them to focus, as deemed necessary on more specific or unique details of the project. Transparency and inclusive participation in the assessment process ultimately support predictable and timely lands assessment decisions and regulatory oversight and encourage innovation in anticipating and addressing issues of concern to Canadians during development of energy infrastructure. As the understanding of rights, public interests and concerns of Indigenous peoples and the public evolve, the regulatory processes and tools that support project assessment must also evolve.

Over the years, some technical updates have been made to the Lands Information section of the Filing Manual. Consequential edits to these and other sections of the Filing Manual were published in August 2020, following the 2019 coming-into-force of the CER Act, which replaced the National Energy Board Act. However, it has been more than a decade since a comprehensive review and update of the Lands Information section.

What are some of the benefits to updating the Lands Information section of the Filing Manuals?

Engagement on topics such as the following will contribute to the CER developing clarity and consistency around the filing requirements and guidance related to land matters:

  • Incorporating input and perspectives when siting a project or establishing a proposed route such as how directly affected Indigenous Peoples participated in the route selection process to ensure the protection of heritage and cultural resources.
  • Describing company compensation methodology and compensable matters. • Details on lands and land rights (such as permanent, temporary or third-party crossings) necessary for a project.
  • Details on the overall land acquisition process.
  • Sample form of the type of land agreements to be used (such as a sample of the form of agreement used to access to lands in support studies for Traditional Land Use and Traditional Ecological Knowledge).

Why is the Lands Information Section of the Filing Manuals being updated?

Section A.4 Land Matters requires updating because of context factors such as the following:

  • Expanded mandates for the CER such compensation matters, have introduced additional areas to assess, resulting in the need for guidance to applicants for such land matters.
  • As a result of recent projects, the CER received applications submitted pursuant to section 324 (Right of Entry) and section 217 (authorization to cross a utility) which often related included issues such as compensation for land rights and access to lands.
  • In addition to the previous bullet, in recent applications to the CER, companies are acquiring the different types of land rights (such as permanent and/or temporary and third-party crossings) for new projects as well as operations and maintenance activities.
  • The nature of impacts to, and the issues of rights holders, owners and users of lands, are being observed to be more detailed based on the nature of these land rights.
  • Some project applications which include seeking an exemption from the detailed route process may have routing issues. A description of the company’s typical route selection process or project siting methodology is expected to provide high level context to understanding how routing is addressed, and issues resolved.
  • Although compensation disputes are considered separately from facilities applications details on compensation methodology relating to lands acquisition, mitigation of damages and impacts because of the prescribed area can provide the CER with context and framework of the company’s approach to compensable matters.

For information on how you can bring land-related compensation disputes to the CER, see Land use compensation on the CER website.

Pipeline Retirement – Decommissioning and Abandonment

Pipelines have a lifecycle, and just like people, they also retire. The Canada Energy Regulator (CER) ensures that when pipeline operations need to permanently shut down, the pipelines companies will meet their obligations towards landowners, Indigenous Peoples, and the public by maintaining safety within the pipeline right-of-way (the land allocated for the pipeline and its maintenance) and associated facilities.

Whether a pipeline is abandoned in place or decommissioned, the CER continues to regulate the facility and ensures that the company maintains its responsibility and liability. As such, companies are required to continue to monitor and report on them.

When a pipeline is abandoned, it is permanently taken out of service and product delivery is stopped. A decommissioned pipeline is different because the service delivery can continue. A pipeline may be decommissioned when a section of the pipeline is no longer needed or when a new pipeline replaces the original pipeline and provides the same service.

Prior to submitting a plan to shut down the operation of a pipeline permanently, the company must submit an application to the CER, including a detailed plan to either decommission or abandon the installation. The CER will either approve or deny the application.

In their application, companies must demonstrate how they plan to carry out the project, including how they intend to restore the land to a state comparable with the surrounding environment. Companies are also expected to engage with potentially affected individuals and communities who might be affected by the proposed decommissioning or abandonment activities.

If approved, the Commission will issue the order with terms and conditions to decommission or permanently stop the operation of the pipeline.

The company is required to pay all costs, including cleaning up the surrounding area until the land is restored. Even after the restoration work is over, pipeline companies have an ongoing responsibility to landowners and the public to ensure the pipeline right-of way and the associated facilities remain safe.

The CER’s expectations and requirements to abandon or decommission a pipeline are set out in our Onshore Pipeline Regulations and Filing Manual (see Guide B and Guide K, respectively). These include the steps the company must take to prevent harm to people and the environment.

To better understand the difference between decommissioning and abandonment, check out this link CER – Feature Article – Keeping pipelines safe - operating or not (cer-rec.gc.ca).

The CER requires that companies set aside money to pay for abandonment work. The company must keep funds available to pay for any costs that might come up in relation to the abandoned pipeline, including further maintenance activities.

When you are planning to work near an abandoned pipeline the rules are different from an operating pipeline. Check out this link CER – Damage prevention (cer-rec.gc.ca)

You may be wondering about what happens if a pipeline company goes bankrupt or can no longer be located anymore, Canadians can be reassured that the Canadian Energy Regulator Act introduced actions that the CER can take in regard to the orphan pipeline. The CER’s appointed Designated Officer can now take necessary measures to abandon an orphaned pipeline, if required.

More information on these topics - Pipeline Abandonment and Pipeline Decommissioning is available on the CER website.

Review of the Rules of Practice and Procedure

Are you a landowner that has participated in or has an interest in Canada Energy Regulator (CER) hearings?

The Commission of the CER, supported by CER staff, will be starting a review of the Rules of Practice and Procedure (the Rules) to update the regulations. We are looking to gain valuable feedback from landowners, CER-regulated companies, Indigenous Peoples, and other interested parties on potential amendment areas and improvements to the Rules.

The Rules govern the procedures, practices and processes that are to be followed during Commission hearings at the CER. Among other things, the Rules set out how applications will be assessed, how to submit a complaint during a public hearing, and the overall conduct of public hearings. In broad terms, the objective for the Rules review 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.

Figure 4 – Gavel from a judiciary proceeding.


Figure 4 – Gavel from a judiciary proceeding.

As a part of early engagement for this review, a Discussion Paper will be posted on the CER website which identifies possible areas of change for interested parties to consider and discuss when sharing feedback. For landowners, topics addressed in the Discussion Paper that may be of interest will include:

  • Filing and Service (including personal service): the Rules include requirements related to how landowners and other parties must file and serve documents, including how companies must serve documents on owners of lands proposed to be acquired, leased, taken or used.
    • The Commission is considering modernizing requirements to allow for electronic filing and service, without the subsequent provision of hard copies, where it makes sense to do so. These potential changes would not apply to instances where personal service is required.
  • Publication of Notices: the Rules include certain requirements for applicants to publish notices; for example, notices related to a public hearing or plan, profile, and book of reference (PPBOR) notices for proposed pipelines and international/interprovincial power lines.
    • The Commission is considering what type of publication requirements are appropriate in a digital age, where Commission approval is necessary for notices, and whether amendments should be made to current requirements or supporting guidance.
  • Detailed Route Hearing - Process for Fixing Costs: the Rules include a process for fixing costs related to detailed route hearingsFootnote 2 (Rules, s. 53-54).
    • The Commission is considering whether the existing process for fixing costs requires updates and if it can be applied to other instances where parties require a Commission decision on costs.
  • Right of Entry to Lands: the Rules specify deadlines for filing objections to a company’s right of entry application and company replies. The CER has received feedback that same day service is not always feasible when filing right of entry applications (Rules, ss. 55(2)).
    • Through the Rules Review the Commission will examine all timelines set in the Rules and consider whether new time limits should be added. In certain instances, timelines may be shortened and in others they may be extended.
  • Compensation and Cost Apportionment HearingsFootnote 3: through the CER Act, the Commission was given the authority to decide compensation (CER Act, ss. 327 and 334) and cost apportionment (CER Act, ss. 335(4)(g)) disputes. Currently, these processes are supported by guidanceFootnote 4, but not reflected in the Rules.
    • The Commission is considering the incorporation of standard processes for these application types. For example, a new requirement in the Rules may be that a landowner applying for a decision on compensation may be required to serve their application on the company within a specific timeframe.

This Discussion Paper will help guide the conversation over the course of a 90-day period. You are welcome to provide feedback on any aspect of the Discussion Paper or any other issue related to the Regulations. You may wish to use the list of discussion questions that are incorporated in the Discussion Paper to provide your feedback.

We anticipate engagement will begin in September 2024. The feedback collected will inform potential improvements to the Rules and any other related guidance and internal processes. Your participation is very important to us. We look forward to hearing from you and receiving your input for the Rules Review.

To ask questions about the Rules Review, please email: RPPR@cer-rec.gc.ca.

CER Issue and Dispute Resolution Processes

From coast to coast to coast, there are over 500 people who work at the CER and who interact with Canadians in numerous ways in the course of our day-to-day work to carry out our lifecycle oversight responsibilities – from our inspectors in the field to our regional office, emergency management, library services, and dispute resolution staff – as well as through our website that provides various contacts for concerned parties.

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

Figure 6 – NO DESCRIPTION!

CER lifecycle oversight means we hold regulated energy companies accountable during the full lifecycle of a facility project (such as a pipeline), which often spans several generations. Oversight starts with the project’s design and the assessment process, to determine whether the project is in the public interest and, if the project is approved, carries on to construction, operation, and ultimately until the facility is abandoned and the land is reclaimed. This ensures the project is safe, and that people and the environment are protected. Issues and disputes between an energy company and the people living near those projects can result at any stage of the project lifecycle. Lasting impacts to people’s homes, lands, and livelihoods such as farming or trapping can create a deeply emotional response in the parties when concerns are not addressed.

In the example of a pipeline – it could flow gas or oil for 40 years or more. And the folks living along the pipeline right-of-way are not going anywhere either. These are long-term relationships where issues can arise when communication breaks down. While the CER expects the parties to attempt to resolve issues or disputes amongst themselves before contacting the CER, we understand there may be situations where CER support may be necessary.

Inquiries

An inquiry is any issue, question, concern, or information request made to the CER from a concerned party, landowner, member of the public, or Indigenous Peoples. Inquiries received by the CER are first triaged to clarify what they are and determine the most appropriate approach for addressing them in a timely manner.

For example:

  • If it is identified as an emergency, the regulated company would be contacted to address it immediately;
  • If it is identified as a potential compliance issue, it would be referred to CER compliance and enforcement staff for assessment and follow-up; and
  • If it is identified as a matter that falls outside of CER jurisdiction (for example, a provincially-regulated facility), it would be referred to the appropriate authority.

The triage process enables the CER to address and resolve a significant amount of the issues and concerns it receives. Often, the preliminary steps of acknowledging the concerns, facilitating information-sharing, and ensuring that the company is made aware of the concerns, results in actions that lead to resolution.

For example, a concern about odours that community members attribute to a CER-regulated facility may result in a dialogue that includes topics such as facility maintenance, sources of odours, and air monitoring practices. The dialogue and information-sharing can help to build understanding and trust between the company and the community members. However, if the issue(s) cannot be resolved, either of the parties can file a formal complaint or request Alternative Dispute Resolution (ADR) services from the CER Dispute Resolution team.

Disputes

A dispute includes any written or verbal complaint received from a concerned party who has unresolved issues associated with CER-regulated facilities.

Most of the disputes referred to the CER Dispute Resolution team are resolved among the parties outside of the formal regulatory process through timely intervention.

Under Section 73 of the Canadian Energy Regulator Act (CER Act), the Regulator must provide an ADR process to parties in a dispute related to a matter under this Act.

ADR is a confidential, interest-based approach for resolving disputes outside of a formal adjudicative process and requires the consent of all parties. The use of ADR processes encourages parties to gain understanding of each other’s perspectives and interests, and to develop a mutually acceptable resolution. ADR processes are facilitated by neutral mediators who use a variety of tools and techniques to help parties reach an outcome. These processes may include negotiation, facilitation, workshops, or mediation. They can be a cost-effective, timely, and informal alternative to formal CER adjudicative processes such as a hearing.

Generally speaking, landowners are the most common users of the CER’s ADR processes, however, Indigenous Peoples, companies, and members of the public all have used the CER’s ADR processes. ADR processes may be used at any time during the project lifecycle but are most common during the construction and operation phases. The most common theme in CER dispute cases is compensation and related matters, such as damages to property and land acquisition.

An example of a dispute during the construction phase of a project could involve ongoing concerns regarding noise, dust, and traffic that impact residents. Additionally, when there are delays to the project timelines, these concerns can be exacerbated. In these cases, CER-facilitated issue or dispute resolution can ensure that the concerns of the parties are heard and mitigated.

The CER encourages parties to find a mutual solution to a dispute either through ADR processes or negotiations. However, when parties in a dispute are not able to come to a resolution, the Commission of the CER (Commission) may adjudicate (decide) the matter. Commission adjudication is most common when dealing with disputes related to Part 6 of the CER Act – Lands, which includes land acquisition agreements, right-of-entry applications, compensation disputes, and cost apportionment applications. A Commission-adjudicated decision is viewed as a last resort.

The ADR process, on the other hand, provides parties direct control in the discussion and outcome and puts the power to reach a mutually acceptable resolution in the hands of those involved. Landowners find ADR beneficial in that it provides them a sanctioned platform to be heard. Through ADR, CER-regulated companies are better able to maintain relationships with landowners, communities, and stakeholders, thus mitigating potential future conflicts around facility maintenance, operations, etc. ADR is a process that can be applied specifically to local problems and provide local solutions.

In working together with our colleagues across Canada, CER staff ensure that there are fair and efficient processes in place for resolving disputes. In that context, the CER’s objective with respect to issue resolution and ADR processes is to lead and support innovative and effective approaches to manage issues and resolve disputes to complement its regulatory mandate.

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

Date modified: