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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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