TransCanada Pipelines Application to the National Energy Board

Possible Pipeline Jurisdictional Changes and Potential Landowner Concerns

Recently, many Alberta rural landowners have received a package of information in the mail from a landowner organization. The correspondence expresses concerns with an application made in June of 2008 to the National Energy Board (NEB) by TransCanada Pipelines Limited (TCPL). The Farmers’ Advocate Office (FAO) has received a number of inquiries regarding this issue and following are some facts we have compiled that may provide a more clear understanding of the situation.

TCPL made application to the NEB in June 2008 asking for an order and certificate to allow a portion of their pipeline system in Alberta, formerly known as Nova Gas Transmission Ltd. (NGTL) and regulated under Alberta Utilities Commission, to come under NEB jurisdiction. The NEB accepted the application and set a public hearing for November 2008.

TCPL owns and operates three pipeline systems across Canada. TransCanada Mainline is a large diameter pipeline system approximately 15,000 kilometres in length that is partially in Alberta and runs east through the rest of Canada to serve markets in other provinces and the United States. TransCanada Foothills is a large diameter pipeline system approximately 1240 kilometres in length that runs from central Alberta to both the B.C. border and to the United States. Both of these pipeline systems are regulated by the NEB. The third system is the NGTL network of approximately 23,500 kilometres of pipeline located within Alberta and connected to the other two systems. TCPL’s point is that they operate these three systems as a single enterprise to deliver gas to markets in Canada and the United States and believe that the entire system should be regulated by the NEB. They claim that a single federal regulatory regime will enhance regulatory and economic efficiency.

The NEB held a public hearing on November 18, 2008. There was 38 intervenors granted permission to make their positions known in front of the NEB. The landowner organization referenced above was one of the intervenors. They made an opening statement and presentations to NEB that suggested that landowners would suffer significant prejudice should the NEB approve the jurisdictional transfer. They asked NEB to reject TCPL’s application or, if it did not reject it, to include conditions that would at least partially mitigate the prejudice to landowner interests. The main points the landowner organization made were:

Loss of participant funding available under provincial regulation for landowners to participation in regulatory hearings concerning their interests.
Restrictions on agricultural practices resulting from reduction in permitted ground penetration before requiring company consent from 18 inches (45 cm) under provincial regulation to 12 inches (30 cm) under the Pipeline Crossing Regulations
Expanded control zone and increased notice and consent restrictions
Mobile equipment crossing consent requirement
Substantially increased penalty exposure for regulatory contravention
Increased exposure to abandonment costs and liabilities and loss of current regulatory remedy under provincial regulation
Loss of opportunity to continue to receive reviewable annual payments on future pipelines constructed within federal jurisdiction.

The landowner organization also presented a suggested “Schedule A” asking the NEB to impose the conditions outlined as partial mitigation measures.

The NEB concluded their hearing and is now considering all of the evidence provided. As the NEB is a quasi-judicial independent regulator, they cannot be influenced by political or special interest lobby and no one can speculate on what their decision may be. We understand their decision may be released anytime between now and the end of March 2009. At that time, it will become evident whether or not there may be outstanding landowner issues. TCPL has commented that they will endeavour to undertake an information and consultation process with landowners if they are successful in their application and there are outstanding issues to discuss. The NEB has indicated that if any outstanding issues cannot be resolved between TCPL and landowners, the NEB can intervene and provide assistance through its Landowner Complaint Program or the Appropriate Dispute Resolution Program. The NEB has responded to the landowner organization’s package of information by releasing a question and answer document .

The FAO is available to discuss this issue with rural landowners and we would be happy to try and answer any questions that you have that have not been addressed in the information above. We would suggest landowners to be proactive in a couple of ways if they have concerns with any pipeline crossing on their property. One should review the pipeline right-of-way/easement agreement you have in place with the company in order to gain an understanding of what rights and/or requirements need to be adhered to. You can then contact your pipeline company and ask them for answers to your questions or ask if they could address any issues you may have. Every indication is that the vast majority of concerns can be resolved through fair and responsible negotiation. If negotiation fails, you have processes available through the regulator and/or our office (FAO) that can offer formal dispute resolution or mediation as a means to resolving the issue. Finally, in some circumstances you may have the right to a formal hearing by a regulator that can adjudicate your issue.

For more information about the content of this document, contact Janet Patriquin.
This information published to the web on February 9, 2009.
Last Reviewed/Revised on February 13, 2009.