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Intervenor funding in National Energy Board proceedings
Paul G. Vogel
The following article was contributed by Paul G. Vogel, a lawyer practising with the law firm Cohen Highley LLP in London, Ontario. This article was originally published under the title "Listening to Landowners". It has been reproduced here with the permission of the author.

Mr. Vogel practises in the area of commercial litigation and environmental law. He has written a number of articles on agricultural law topics for farmers which are published on his firm's webpage. Vogel cautions the reader that the opinions expressed in this article are not intended as legal advice. Before anyone acts on any information contained in this article, readers should obtain legal advice with respect to their own particular circumstances. Vogel invites readers to contact him by sending e-mail to vogel@cohenhighley.com or by phone at (519) 672-9330.

Rural landowners throughout Canada are being faced with the prospect of increased use of their lands for energy pipelines. From prairie ranchers to Ontario farmers to Maritime woodlot operators, these landowners are concerned about the potential impact of these pipelines upon the productivity and value of their lands and the safety of their families. They want a meaningful voice in determining where these pipelines are located, how they are constructed and operated, and ensuring that appropriate monitoring programs and contingency plans are in place to protect landowner interests. The National Energy Board (NEB) is presently considering adoption and implementation of an intervenor funding program to provide landowners with the opportunity to actively participate in the federal regulatory process under which many such pipelines operate.

In August, 1996, in response to the direction of the federal Minister of Natural Resources, the NEB circulated a report on intervenor funding options and solicited public comment. In its report, the Board notes:

"Intervenor funding is an issue that has increasingly arisen in connection with administrative proceedings and reflects both the increasing complexity of issues faced by tribunals and the interface between those issues and the lives of the general public. Although tribunals often have well-established public consultation and public hearing processes, many members of the general public and interest groups have voiced concerns that, without adequate resources, they are unable to effectively represent their interests on a par with large project proponents, who possess ample financial and human resources."

The NEB has proposed an intervenor funding program for intervenors who cannot afford to pay for necessary legal and expert consultant services and who do not have recourse to other available sources of funding. Under the Board's proposal, an intervenor funding budget would be appropriated annually by Parliament and would be distributed upon application to intervenors by a panel of outside advisors. The funding is to be recovered from the companies operating under the Board's jurisdiction through the Board's cost recovery powers.

In responding to the Board's request for comment, the pipeline industry has strenuously opposed implementation of the Board's intervenor funding proposal on the grounds that deficiencies in the present public consultation process can best be addressed through greater communication with the public but without funding. The Canadian Energy Pipeline Association criticized the NEB's proposal because it would "increase participation in an adversarial process rather than encourage resolution of issues in a consultative and non-confrontational manner".

The Ontario Pipeline Landowners Association is a voluntary, not-for-profit corporation representing the interests of landowners affected by pipeline facilities. Responding on behalf of landowners in support of the NEB proposal, OPLA has asserted that public consultation without provision for funding has simply not successfully addressed landowner concerns. In its submissions, OPLA stated:

"...because landowners are unlikely to have the resources necessary to advance their interests at a hearing, companies have limited incentive to address landowner concerns during the pre-hearing process. As experience has shown, the result can be an expensive and time-consuming hearing that might otherwise have been avoided...It has been the experience of landowners in Southwestern Ontario that the availability of intervenor funding has contributed to a more harmonious relationship between landowners and the regulated utilities and has reduced landowner involvement in proceedings before the Ontario Energy Board".

"In supporting the implementation of intervenor funding, landowners are seeking nothing more than an opportunity to develop evidence of equivalent expertise with respect to issues of direct concern to them. The perpetuation of the existing process, with its lack of funding, will effectively deny landowners and other significantly affected parties access to the hearing forum for these purposes. Surely, no one would suggest that such an outcome is in the public interest".

The NEB has proposed intervenor funding to address "the lack of a level playing field, particularly with regard to environmental and land use issues". For landowners, intervenor funding is essential to ensuring that their concerns are appropriately identified in the regulatory process and resolved either through negotiation with pipeline companies or by participation in Board hearings.

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