Land Matters Group Advisory Committee (LMG AC) Meeting Summary – 21 February 2023

Zoom Videoconference Meeting
Tuesday, February 21, 2023
10 a.m. to 1 p.m. (MST)

Contents

In Attendance

In Attendance

Marc-André Plouffe, Acting VP, Communications and Engagement / LMG Chair
Véronique Duhamel, Director of Engagement
Carole Léger-Kubeczek, LMG Coordinator

Canadian Federation of Agriculture

Lynn Jacobson

New Brunswick Federation of Woodlot Owners

Ron Smith

Ontario Federation of Agriculture

Drew Spoelstra

Union des producteurs agricoles du Québec

Isabelle Bouffard
Stéphanie Levasseur

TC Energy

Graeme Wright

Enbridge Inc.

Larry Yurkiw

International Right of Way Association

Jenna Wood
Josh Vass

Alberta Energy Regulator (AER)

Fiona LeBlanc

Alberta Farmers' Advocate Office

Darcy Allen

Natural Resources Canada

Julie Siddons
Canada Energy Regulator (PWG)

Marc Boucher
Anne-Marie Erickson
Paul Georgison
Brian Martin
Luc M. Rainville
Shannon Neufeld
Lisa Zaplachinski

Absent:

Sarah McKenzie, Enbridge Inc.
Carey Patterson, AER

Guests:

Melissa Mathieson, CER
Ray Yang, CER

Welcome/Introductions/Land Acknowledgements

Review and Approval of the Meeting Agenda

Members Roundtable Updates

  • Self-introduction by each member.

Access to Lands – Group Discussion

  • Reference Documents:
    • Access to Lands a presentation created by Ray Yang.
    • Access to Lands – Discussion Table

Topic #1: Route Selection and/or Siting of Facilities

Definition: Access onto private lands by the pipeline company to conduct studies to assess project feasibility and design, potential impacts and mitigation requirements/approaches, and regulatory compliance.

Early engagement with impacted landowners or land users is an essential component of relationship building. A sound relationship based on trust and respect will endure the test of time, especially if the project is to proceed with construction and operation.

  • A signed consent specifying the terms – monetary and others, under which access is granted, including any type of restrictions imposed by either party, is an available best practice that would ensure greater clarity regarding expectations and obligations, as well as limitations that could prevent or hinder a landowner or land user from gaining access to and/or using those areas.
    • This initial negotiation period allows landowners and land users to gain knowledge about the potential project:
    • The purpose of this undertaking, including the potential risk factors and liabilities
    • The different types of studies
    • The location of the parcels of land that will be accessed as part of these studies, including the sequence when this work will take place
    • The time commitments – the number of weeks / months and the times during the day or night at different periods of the year or season, etc.)
    • The removal of soil and vegetation, if applicable, and their disposal
    • The requirement to return the affected areas back to their original state, to the extent possible.
    • The terms of notification throughout the duration of this phase
    • The contact information where the land agent can be reached, including an alternate number to call in the absence of the person assigned to the project.
  • Given that the project has not yet commenced, landowners and land users are ideally suited to share relevant knowledge that may not otherwise be known about their lands or the vicinity, including information to assist with the selection of areas that might be more favourable or should be avoided for various reasons. Examples of knowledge a landowner may share would include:
    • Specific locations that may be problematic due to concerns such as recurring flooding, poor drainage, or unstable soil conditions;
    • The specific location of the irrigation system or underground streams that feed the property’s well;
    • The habitat of wildlife (animals, birds, and fish) known to frequent the area, including their seasonal patterns;
    • The location of unusual vegetation; and
    • Future/planned development and/or land-use changes that could conflict with or be impeded by the proposed project (e.g., construction of a building or a new access road).
  • Landowners and land users must always ensure that the land registration office in their respective areas has the most up to date contact information about their lands. This information is especially important when companies need to contact absentee landowners.
  • Providing consent for a pipeline company to access lands at this preliminary stage should not be interpreted as implicit support for the project.

Topic #2: Project Construction and Operations of a Pipeline, Facilities and Related Activities

Definition: Construction of new facilities and ongoing maintenance of existing facilities within the permanent project footprint (i.e., the right-of-way and associated surface facilities), and where necessary, temporary workspace outside of the permanent project footprint.

  • Where possible, pipelines companies try to minimize the areas outside of the permanent project footprint. Primarily during the construction phase, but also occasionally during the operations phase, additional temporary workspace outside of the permanent project footprint may be needed for specific periods of time.
  • The land agent assigned to a project may or may not be a pipeline company employee. Often, the land agent works for a third party hired to act as a liaison between the pipeline company and the landowner or land user.
    • Landowners or land users should inform the land agent about ongoing changes or emerging issues to ensure that appropriate action will be taken, if needed.
    • For greater efficiency, companies try to maintain continuity with their land agents, but when someone new comes on board, the parties are encouraged to meet and discuss any history that might still be relevant.
    • All changes involving contact information for either the land agent or the landowner should be communicated immediately to all parties involved to maintain an effective working relationship.

Topic #3: Right of Entry as Defined by the Canadian Energy Regulator Act

Definition: If a company is unable to reach a land agreement to gain access to lands required for an authorized project, it may apply to the CER for a right of entry order. A right of entry order gives a company the right to immediately enter lands as soon as the order is registered, reordered, or filed at a local land titles or registry office.

  • The right of entry process is often perceived as a form of expropriation by many landowners who feel as though their rights to enjoy their lands is being hindered.
  • Right of entry matters can be resolved when the landowner and company are engaged in an alternate dispute resolution (ADR) process.
    • ADR is a collaborative approach that is often used to resolve issues and establish a relationship that will have a lasting impact as the parties continue to engage throughout the facility’s lifecycle.
  • A right of entry process can also be resolved during a hearing that is decided by the Commission of the CER after a request has been filed by the company.
  • While the decision by the Commission is legally binding, the ADR process is not. Similarly, the ADR process is confidential, whereas the hearing process is not.
  • ADR and the hearing processes are two distinct proceedings, though they can occur simultaneously. Even though they are separate, it is not unusual for parties to come to terms during the ADR processes:
    • If the parties come to an agreement before the Commission reaches its decision, the right of way application can be rescinded.
  • During a hearing, both parties are entitled to legal representation.
    • There are no provisions to cover the cost of legal representation in the CER Act.
    • In many instances, the hearing involves a process where all parties are invited to file written submissions.
  • More detailed information about this right of entry matter is available on the CER website under Land Matters Advisory Service.

Topic #4: Access to Temporary Workspace and Roadways

Definition: This type of agreement provides the pipeline company with access to a specific area of land for a specific purpose/use, and only for a specific period of time.

  • Additional lands for temporary workspace outside of the permanent project footprint may be needed at different times during the project lifecycle. For example, additional workspace could be required for temporary equipment laydown and/or vehicle parking and maintenance during pipeline construction.
  • Effective notification and communication with the landowner or land user are essential for negotiating access agreements for temporary workspace.
  • Compensation for this type of access varies on a case-by-case basis, depending on the lands required, the proposed land use, the duration of the land agreement, and the impacts.

Topic #5: Access to CER Staff for Compliance Verification Activities (Inspections)

Definition: CER staff may periodically require access to lands on and alongside the right of way of CER-regulated facilities, as well as elsewhere on the property to field conduct inspections and verify compliance activities.

  • Inspection officers have the broad authority to enter lands (s. for the purposes of ensuring safety, security, or the protection of property and environment and verifying compliance or preventing non-compliance with prescribed areas of the CER Act.
    • CER officers conduct different types of inspections, Compliance Verification Activities (CVAs) to ensure that regulated facilities are constructed, operated, maintained, and abandoned in a manner that protects the safety of people living and working in proximity, and also protects property and the environment.
    • Inspections can include but not be limited to several types of CVAs, notably the following: Audits, Program Audits, Field Inspections, Meetings (Implementation Assessment, Exchanges, Compliance Screenings, etc.), Emergency Response Exercises, Reviews of Condition Compliance filings, Incident Reviews, Enforcement Investigations, among others.
  • Inspection officers may be accompanied by any other person that they believe is necessary to help them perform their duties and functions.
  • Inspection officers and any person accompanying them may enter private property – other than a dwelling or a house – and pass through it to gain entry to a place for the purpose of conduction an inspection. A warrant is not required unless it involves a dwelling or living quarters.
  • To the extent possible, CER officers will endeavor to ensure the regulated company provides adequate notification to all landowners ahead of entering their property.
    • Where applicable, this is also an opportunity for CER inspection officers to engage with landowners by sharing information about various aspects of the inspection process, including the obligations and expectations.
  • To enable inspection officers to perform their duties, landowners are expected to provide all forms of assistance that could be reasonably required.
    • Examples of landowner assistance could include moving machinery or directing the inspection team by the most accessible route to the area targeted for this activity.
  • In the same manner as what would be expected of pipeline company or contracted personnel, CER staff and other persons, if applicable, are required to take all necessary precautions to ensure that no damage could result from their inspection activities.
    • CER officers expect to be held to the same standards as they would require of the company or contracted personnel whose work they could be inspecting.

Topic #6: Emergency Response and Incident Investigation

Definition: Access is to be made available on the whole of the lands for the purposes of responding to and addressing an emergency, such as a spill or release. Full and complete access may also be needed for the purpose of conducting post-incident investigation.

  • The terms surrounding situations of this nature are typically described in the land acquisition agreement to ensure that the company will be permitted to access the necessary portions of the property to respond to and deal with an emergency incident.
  • To better understand how the incident occurred and to prevent a follow up occurrence, access beyond the usual access routes may be needed.

Damage to Property – Sub-committee Update

  • Members of the sub-committee presented an overview of the guidance to be provided to landowners and companies
    • A recommendation was put forward that landowner associations and companies alike should seek input within their own membership or organization to identify applicable situations that would help build a roster of issues.

Follow-up Items and Next Meeting

  • Members are invited to put forward topics of discussion for upcoming meetings or ideas for articles to explore and develop that are relevant to all key stakeholder groups.
  • The next meeting will be scheduled in June. Date to be determined.
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