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Co-operation between landowners brings pipeline power
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. 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.

Federal and provincial regulatory agencies responsible for regulating the construction, operation and maintenance of pipelines usually require pipeline companies to demonstrate that efforts have been made to notify affected landowners of proposed pipeline construction with a view to resolving their concerns and obtaining agreement to the conveyance of easement rights required.

Until relatively recently, pipeline companies have tended to conduct such negotiations with landowners individually; landowners have suffered the disadvantage of not having the time, knowledge or resources to bargain effectively for either adequate compensation or reasonable measures to accommodate their safety, environmental and other concerns. With the advent of intervenor funding available in connection with at least some provincially-regulated pipelines, landowners have been more successful in combining their efforts to ensure that their concerns are addressed in the planning and implementation of pipeline projects.

The Ontario Pipeline Landowners Association (OPLA) was formed by concerned landowners in the summer of 1993 to address issues related to a proposed pipeline project undertaken by InterCoastal Pipeline Inc. (ICP) and Interprovincial Pipe Line Inc. (IPL). Part of the ICP/IPL application to the National Energy Board requested permission to convert an existing oil pipeline to handle natural gas. Although intervenor funding is not presently available to support interventions before the National Energy Board, OPLA was able to organize the energies and resources of more than 100 landowners for the purpose of bringing to the National Energy Board landowners' concerns related to the safety of the proposed conversion, as well as environmental and other issues.

As part of its presentation to the Board, OPLA requested that the Board require ICP/IPL to develop and implement a landowner communication and participation program which would include a "pipeline impact management committee" to consider and resolve, by mediation, issues related to pipeline construction and operation. OPLA proposed that the committee consist of two members appointed respectively by OPLA and the pipeline, with a third member to be mutually agreed upon. To assist in carrying out its duties, OPLA suggested that the committee be empowered to undertake investigation with respect to soil preservation and remediation; well water testing; tile drain assessment and repair; appraisal and salvage of woodlots; and, generally, to provide a forum for informal dispute resolution between landowners and the pipeline.

The Board denied ICP/IPL's application because of safety concerns relating to the integrity of the existing pipe, depth of cover problems, the proposed designed temperature, inadequate hazard assessment and compliance with provincial setback requirements. However, the Board did endorse OPLA's proposals concerning a more co-operative approach to the resolution of landowner concerns. In its Reasons for Decision, the Board stated:

"The Board views the OPLA's initiative in proposing a landowner relations program, and IPC's agreement to work with the OPLA to create a joint informal dispute resolution committee as a positive step towards improving the current relationships between ICP and affected landowners. The Board encourages meaningful consultation and co-operation. However, the Board notes that it retains overall responsibility for the regulation of the construction, operation and maintenance of pipelines under its jurisdiction."

Landowners are increasingly affected by the construction and operation of pipelines on their lands. In addition to impacts on farm operations, pipelines may be of concern to landowners and their bankers from the perspective of environmental liability and may limit development options and, therefore, market value of easement and adjacent lands. Landowners have demonstrated a willingness and ability to constructively address such issues in negotiations with pipeline companies. It is to be hoped that informal dispute resolution forums such as that proposed by OPLA, and endorsed by the NEB, will be adopted by pipeline companies in recognition of landowner concerns. Only through implementation of such a co-operative approach to addressing landowner issues will landowners achieve a satisfactory resolution of their concerns.

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