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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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