ARCHIVED – Land Matters Group Steering Committee – Meeting Summary – 9 January 2014

Andrea Hardie stated that 14 letters of comment were received and are now posted on the website.

The proposed one-call element is intended to be one system for both provincial and federal levels; some submissions supported a 3-day response requirement, others suggested 5 day requirement. Manitoba regulations require that “locates” be directed to Manitoba Hydro, which would be in conflict with NEB’s proposed requirement to be part of a one-call system.

Canadian Common Ground Alliance uses Click before you dig slogan. It was suggested that a representative from CCGA be invited to speak to the committee about its mandate.

Questions were raised pertaining to the NoPRC section Safe Work Practices for Construction and Excavation. Concern was voiced about the idea of "responsibility" for damage to a pipeline being placed on landowners who have contracted work near a pipeline. If a "locate" has been requested, the facility owner should advise the landowner if they expect to be onsite to supervise the work. When the landowner is following the steps, there should not be additional liability placed on them.

Andrea expressed that the provision was included in part due to situations where municipalities (project owners) allocate work to sub-contractors without assuring adequate monitoring of required practices pertaining to pipelines or that the appropriate communications have not been transmitted to the contractors. How can the agricultural community (as project owner) confirm qualifications of sub-contractors? Are qualifications defined?

The matter of moving the exemption order to regulation precipitated comments and concerns about losing the intent of the original order when it goes to the Justice Department, because the ability to modify, change or provide input will be lost. The UPA emphasized that landowners are having difficulty with the magnitude of pipeline activities that are disturbing agricultural land and that there needs to be better protection of farm activities. Concern was voiced about social adaptability and social license being compromised.

Including the content of the exemption order in the regulations will mean that there is one regulatory instrument that contains all relevant information, rather than having to refer to multiple instruments. Andrea assured that there will be a draft presented to the group to allow feedback and transparency, and that the NEB will not lose the ability to influence the regulation once the Justice Department is involved. It was recognized that the Board considers the consultation process used to create the order a significant achievement, and that the intent is that the gains achieved are not impacted.

Legislative changes were announced in June designed to strengthen pipeline safety but the proposed amendments have not yet been introduced to Parliament. The timeline for implementing regulatory changes may be determined by Parliament. There will be a follow-up to see if there is any wording of the draft document to discuss in May. The intention is to target the summer for the next consultation process; the committee will be notified as soon as there is any significant development on this project.

Flipchart transcript:

NoPRC – Andrea Hardie

• Comments – Revisions – are welcome after this meeting
• Clarification: Supervisory
• Three days in advance (notification) – Responsibility of the pipeline society or the producer of the work?
• Has an order been moved to Regulation before? – No
• Concern expressed that regulations are not as nimble as orders (that they cannot differentiate between the intended Municipalities and landowners)
• Request not to be too prescriptive/defined regarding size/weight of equipment (Crossings by Agricultural Vehicles or Mobile Equipment)

Action Items

1. NEB to identify representative from CCGA to present an item at upcoming meeting
2. NEB to bring regulatory wording to SC for input

The Code is a working guideline of expected conduct developed in response to issues identified by parties during the NEB’s Land Matters Consultation Initiative and summarized in its final report. One intention of the Code is to help shape a national standard for regulated companies. It is one component of an orientation module to address concerns from landowners; it identifies common terms for diverse companies. April is the start of the orientation roll-out with hope for the full implementation by the end of 2014. Land agents will be required to have the training and sign off on the Code.

The Steering Committee is interested in better understanding the mechanics of implementing the Code, how companies plan to evaluate the effectiveness of the Code in addressing issues identified, and how any complaints related to breaches in Code commitments will be managed.

Some questions relating to possible ‘drivers’ of agent conduct that could influence trust: Is the agent’s compensation or scope of work based on number of signatures acquired within a certain timeframe? Some expressed concern that the Code is quite general: Is it flexible enough to address local/regional issues and broad enough to include Aboriginal engagement elements? The group acknowledged that it is difficult to define behavior of people.

Confidentiality is greatly appreciated by farmers. It is also important for Land Agents to avoid representing a process as a done deal. Group suggests adding a company contact name/number to the code of conduct and provide to a landowner at the start of negotiations. Differentiate between behavior and results (outcome); behavior of agents toward developing trust and respect with landowners should not be in conflict with results-oriented expectations.

A question was raised about any existing land agent associations. Is there a professional, self-regulating organization? Answer: many land agents belong to a professional group based on their education i.e. forestry, biologist, environmental group. However, some land agents are from local communities. Their expertise revolves around knowing the community, the people and local issues.

Jamie recommended that an overview of the Orientation/Training package be presented to the LMG steering committee. CEPA is open to feedback. Following consultation with the Métis council, Shirley expects to submit comments on the Code document. Any comments for CEPA’s consideration may also be shared with other SC members by emailing Lorna Patterson, who has offered to distribute to the group. Members can email CEPA with comments to Amanda’s attention (aaffonso@cepa.com).

Flipchart transcript:

• CEPA Lands Working Group Priorities
  1. Code of Conduct,
  2. Land Agent Training and
  3. Standard Easement agreements
• Code based on US collaboration that included FERC, IINGA, IRWA,
• Training to include Orientation and Ethics
• How will Code apply to contracted Land Agents? Company lands staff? [Company employees and contractors will be required to complete the Code of Conduct.]
• How will CEPA measure success of Code? Landowner survey to assess agent compliance?
• How will complaints pertaining to Agents’ Code of Conduct be managed?
• First step is to call the company (disciplinary or corrective action?)
• NEB complaint process
  • Concern about Agents being compensated for signatures received rather than hourly rate (to ensure quality and not quantity). Would like to see scale to reflect regional, provincial (continuity with federal standard). [Agents are not paid by signatures received]
  • Agents can only promise what they have authority for (add to Code?)
  • Agents to sign off on Code before contracts are awarded.

Questions / suggestions:

[Answers were provided to these questions at the meeting. CEPA’S answers are noted in brackets]

• Could Code be given to Landowners at initial visit? Suggest adding contact phone # to call if there are concerns about Agent behavior/interaction.
• What does "Reasonable" mean in item #3 – Good Faith Negotiations. Answer: "good faith" reflects the desire to influence behavior/process rather than specific results.
• Please remove "reasonable" since it is a vague term.
• Does Code apply to conduct only during acquisition phase or throughout full lifecycle?
• It applies throughout the lifecycle.
• Could training be given periodically to field staff and not just contractors? Answer: Verification of Code is valid for 3 years, recertification required.
• Are there existing Land Agent professional associations, (i.e."CAPL, IRWA, AASLA) or other governing bodies who can discipline/sanction? [No]
• Training package will also apply to company staff who engage with Landowners/land users.
• Could / Should an Aboriginal perspective be part of the Code and the orientation training?

Action Items

1. Any additional feedback on the Land Agent Code of Conduct can be emailed to Amanda (aaffonso@cepa.com)
2. If SC members wish to share their comments with the group, they should email to Lorna Patterson, who can distribute
3. CEPA to present training package for Land Agents at a future meeting

Claudine Bradley reminded the group that comments on the discussion paper are invited until the end of January. Additional tools to measure and improve will be developed. There will be more reporting in the future to help identify trends, concerns, best practices in safety.

Some of the participants asked why this project on safety culture is being done now. There were requests for clarification and communication about what this consists of.

Claudine explained that it is difficult to regulate a safety culture; it requires a desire within an organization to make a change, it cannot be forced. Building culture means improving awareness and understanding of the influence of corporate culture on safety and environmental protection outcomes.

Questions were asked "What was being done before, that we need to add this level? Are there not conditions placed on performance and verified whether adhered to? Does the NEB review conditions? How can you regulate the "culture" of safety? Were there not checks and balances in place before? What was in existence before? Wouldn’t industry develop these safety measures? Is there a lack of trust in the existing safety systems?"

The Board has already identified areas in existing regulation that can be used to build connections between management systems and safety culture within regulatory context (OPR Section"6 includes several safety culture elements). Sandy commented that the NEB audit process of company management systems can identify deficiencies in areas such as safety culture. It is another layer to leverage desired outcomes.

Some participants expressed surprise that this is coming from the Board; it seems that industry should be taking it on and not the Board.

Claudine explained that the draft framework is an attempt to influence behavior in a company. It was developed to promote continual improvements, not because there were specific identified faults or gaps. As a regulator, the Board provides influence and not just prescriptive regulation. This is a proactive approach designed to promote a common understanding and foundation for improvement.

A specific case of a safety incident was mentioned: Safety concerns of oil seeping into the groundwater around Primrose Lake area of Alberta in June and July were brought forward, and it was hard to get the company to consult on this matter. Community representative visits to company in Bonnyville produced nothing. Was this an indication that the local offices contradict what is being initiated at the federal level with respect to this policy?

Sandy stated that the Board cannot comment on incidents outside its jurisdiction, but that it is working much more closely with other regulators to promote consistent approaches. Concerns over energy infrastructure and boundaries are disappearing; there are efforts to reach across jurisdictions.

Flipchart transcripts

• Is the definition clear? Why not regulate “culture”?
• Connections between management systems & safety culture; identify opportunities to influence
• Huge risk-evaluation exercise. Any studies to show cost/benefit?
• How do landowners fit into this framework?
• Elements like pay for performance are beyond regulation, though may influence culture.
• The draft definition of safety culture articulates that it is shared by “a particular group” when it could be different groups.
• Can the NEB make it safer for people who wish to report a breach of safety?

Action Items

1. Any additional comments on the NEB discussion paper can be provided in writing by the end of January.