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Home > Public Participation and Land Matters > Land Matters Consultation Initiative (LMCI) > LMCI Consultation Schedule > LMCI Streams 1 and 2 Workshop Summary - Appendix - Landowner and Industry Associations - 18 March 2008

LMCI Streams 1 and 2 Workshop Summary - Appendix - Landowner and Industry Associations - 18 March 2008

18 March 2008
8:00 a.m. to 4:00 p.m.
Delta Calgary Airport Hotel

Table of Contents

Morning Session - Stream 1
Right of Way Crossing Requirements
Table 1
Table 2
Acquiring Access to the Right of Way
Table 1
Table 2
Company Consultation Programs and Landowner Notification
Table 1
Table 2
Afternoon Session - Stream 2
Table 1: Capacity
Table 2: Hearing Process/Decision Making
Table 3: Regulatory Development

Morning Session - Stream 1

Right of Way Crossing Requirements

Table 1

Landowners should not have to apply for approval

• there may be certain circumstances where required e.g. move a barn
• pipelines should be designed so farmers don't have to review guidelines before purchasing equipment or crossing the Right of Way
• certain farming practices are causing issues - deep tilling

However,

• regulations require company approval of crossings
• normal farming practices should be fine to cross
• would like the farmer to be proactive to ask about questionable crossing
• CEPA has attempted to define normal farming practices as part of the their submissions for consultations on damage prevention regulations
• there is an onus in the landowner to ensure equipment is in compliance with regulations
• once pipe is in the ground it is done, need to work together to ensure safety.

Landowners are worried about liability

• pipelines are not buried deep enough
• need to eliminate third party liability to landowners
• landowners should have no concerns crossing, need blanket agreements
• technology has changed so can't avoid the attention to crossing
• need clarification on third party liability for landowners

There is a cost to landowners of having the pipeline:

• can't buy certain equipment
• liability possibly rests with the landowners

Possible solutions:

• equitable purchase-compensation fund levied by NEB?
• liability insurance fund?
• equipment certified by CEPA?
• regulations need to change:
  • need to know what is safe
  • need to define normal farming activities and appropriate service standards with landowner and other appropriate input
  • need to ensure regular review and assessment in the future
  • golden opportunity as existing regulations are in the process of change (damage prevention regulations)

Other considerations:

• depth of cover is the key factor and should be five feet
• there is a point where equipment won't grow given current land use
• if land use changes need to consider:
  • who is impacted?
  • land owner should not pay?
• Annual payment debate? Need to build awareness of parties' responsibilities
• Land Owners want to be treated fairly.
• Companies are supportive of fair treatment and want a balanced approach.

SUMMARY

• Blanket agreements are ideal
• Loss experienced where advances in normal farming practices are prevented. Should be compensated - compensation fund.
• Third party liability responsibility should be clarified.
• Normal farming activities should be defined in collaboration with land owners and reviewed regularly.
• Recognition that regulations are currently being redrafted -need to look at draft.
• New pipeline designs should attempt to address needs of landowners as time goes on and technology changes. Onus rests with landowners to ensure compliance
• Consider NEB clarification of s.86 and the intention of annual payments.

Table 2

Issue 1: Inadequate legislation in place

Canada wide safety legislation is missing on depth of cover and families fear living on top of pipelines. Existing legislation on vehicule crossing is too onerous on landowners with risk of prosecution.

Solutions to Issue 1:

Regulation change

1. Depth of cover should be at least 5 feet for ¼ mile on either limits of family farming residences across Canada. The NEB should oversee this.
2. S. 112 (2) of the Act benefits the company only. There is a desire to amend it such that easement agreements can work and not impose on landowners to have to call each time. The Act may be hard to amend but alternatively, we should amend the NEB pipeline crossing regulations (which will be the Damage Prevention Regulations (DPRs)) and/or include specific language in the companion guidance notes.

Issue 2: Definition of normal practice

What was normal in the 1960s is not normal anymore. No one could have imagined the evolution of normal farming practices. This discussion/definition must evolve with time. As well, the lack of definition creates a situation where each vehicule crossing or any ground disturbance that goes below 30 cm requires company permission each time. Normal practices should be agreed to, understood and defined such that the landowners do not have to wait to get the approval from the companies which impedes and slows their farming practices.

Solutions to Issue 2:

1. For new pipelines, there is a need to better negotiate new easement agreements. There is a need to have knowledgeable people to have real negotiation. It's hard for landowners to effectively protect their rights. There should be a funding mechanism to assist landowners in this regard and properly negotiated agreements should be a pre-condition to certificates being issued.
   
2. For existing lines, there is a need to better educate via pamphlets, education, and meetings to explain easement agreements.
   Again, there is a need to define normal practices such that blanket approvals can be obtained. From the companies' perspective, each farming practice may be unique and must be looked at in the geographical context where it is being applied. Therefore, normal practices are hard to define generally and must be looked at on a case by case basis. It has to be clear to the landowners that when safety can be at risk, landowners will indeed call the company even if they think that what they are doing constitute normal farming practices.
   
3. Regulation change. There was a CEPA proposal to this effect on blanket exemptions; NEB needs to consider it. There should be language in the DPRs to this effect and/or include language in the companion guidance notes. Changes in the regulations would be stronger than expectations in the guidance notes. Need to define what normal is and set out clear expectations in the DPRs; as a quick fix, guidance notes could go out quickly to explain this but ultimately, the desire is to have those as legislated requirements/definitions in the DPRs.

Issue 3: Depth of cover is too shallow

Depth of cover is too shallow to begin with. This is made worse by the company not monitoring it and allowing the surface to erode such that in some instances, depth of cover can be a little as 36 inches with machinery potentially leaving ruts of 18 inches; this is unacceptable.

Depth should be 6ft. from the top of the pipe. This should alleviate problems for crossings and future land use. CAPLA's proposal calls for a minimum of 3 feet or design depth, which ever is greater. Restrictions on farming activities should be specified, mitigated or compensated.

Solutions to Issue 3:

1. For existing lines, there is a need for proper management plans such that there is no need to call each time (and blanket approvals can be given). These plans should go hand in hand with soil handling discussions.
2. For existing lines, companies need to constantly monitor depth and do surveys. When needed, companies also need to add topsoil, lower the pipe, maintain the cover or compensate landowners.
3. For existing lines, if too shallow (as things have changed since the 60s), company needs to make required upgrades to its infrastructure and costs should be recovered through tolls (the intent is not to impose costs on landowners or on companies but to impose them on society as a whole since it is a matter of public interest).
4. For existing lines, implement designated crossing areas. However, they do not work well for everyone and cannot accommodate thousands or crossings required every year.
5. For new lines, there is a hope that companies would be open to the idea of lower depth (at least 3 ft). Companies need to talk more to landowners and discuss soil handling issues.
   Adding topsoil, conducting depth surveys, lowering the pipe if needed, maintaining cover or compensating should be "performance measures" added to the Filing manual. There should also be mandatory minimum easement agreement requirements providing that companies must design so as not to restrict farming activities and to accommodate agricultural facilities and processes (need to amend s. 86 of the Act?).
   Easement agreements should provide for land use changes over time.
6. Companies should be required to include in certificate applications a blanket crossing approval for all agricultural equipment and processes except as specified, with any restrictions mitigated or compensated (this is relevant to issue 2 above as well).

Issue 4: Lack of Partnership in safety

Landowners, CAPLA, industry and the NEB need to be partners in safety. There is a need for an increased role by the NEB in promoting the joining of landowner associations.

Landowner associations benefit the companies too; need to improve awareness through programs and landowner associations to educate such that landowners know when they need to call.

Solutions to Issue 4:

1. Implement a funding Process for landowner associations to promote awareness. This should be jointly funded.
2. Rather than compensating landowners with a lump sum, compensation should be paid out annually to ensure that there is ongoing dollars available for landowners to join associations.

Issue 5: Lack of enforcement

The NEB simply does not enforce compliance. What ever tools are at the disposition of the NEB, they are not enough. There has to be sufficient deterrents to ensure compliance, not only of landowners, but companies and third parties.

Solution to Issue 5:

1. Implement a "fines" system though the DPRs.
2. Make the DPRs less goal oriented and more prescriptive such that you can have measurable criteria of when a provision is not being complied with. Goal oriented is fine but there is still a need for more prescriptive requirements to better identify events of non-compliance.

Acquiring Access to the Right of Way

Table 1

1. Landowner Contact (Land Agent and NEB)
   1. Suggestion that the first contact is typically by a land agent, who appears unannounced "at supper time", with positive description of project and minimal landowner impacts, along with legal documents for execution.
   2. One landowner representative suggested that there be early contact by the NEB with landowners, to provide process information, etc. and that perhaps such contact should precede any contact by the company. Another landowner representative queried whether this could result in an inappropriate appearance that the Board supportive of the project.
   3. General suggestion that early NEB information sessions in local communities are of assistance.
   4. Recommendation by some participants that there be a process for managing land agent performance, and ensuring expeditious resolution of concerns regarding the professionalism of land agents assigned to their properties/areas. There was related mention of the fact that land agents are subject to regulation/registration and corresponding professional obligations in some provinces but not others.
2. Understanding and Content of Easement Agreements
   1. Participants generally agreed that it is important for landowners to understand the easement documents before signing as the documents form the basis of the future relationship.
   2. General consensus that landowners have difficulty obtaining effective legal advice, given unfamiliarity of local lawyers with energy easement agreements and NEB processes.
   3. Suggestion that understanding of easement documents could be aided by plain language documents and standard Q&A documents that could be provided along with easement documents.
   4. Suggestion that clear cautions in the documents regarding impact on legal rights and any procedural timelines, being of potential benefit.
   5. Suggestion that the wording of "historic" easement agreements might not reflect present farming practices or sufficiently deal with other issues of concern to landowners, such as third party and environmental liabilities or pipeline design (such as depth of burial and crossings) and controlled zone issues.
3. Negotiation
   1. There was some discussion around landowner's perception that it is not fruitful to attempt to negotiate with contract land agents (rather than company representatives).
   2. Suggestion that landowners would benefit from greater knowledge regarding NEB processes and legal/other impacts of easement agreements and projects to negotiate effectively.
      1. Suggestion that knowledge can be enhanced by experienced counsel, funding to retain experienced counsel for document review and negotiation, as well as landowner organization.
   3. Suggestion by landowners that resentment, past bad dealings and/or skepticism regarding company interactions can be a real impediment to the negotiation/execution of easement agreements.
   4. Suggestion that principles based negotiation and relationships is what best makes the land acquisition process and relationships work effectively.
   5. Suggestion by landowner representative that greater information in respect of the company's compensation proposals would be of assistance.
4. Access to ROW for operations and maintenance
   1. There was suggestion that the scheduling of operations and maintenance work requiring access to the ROW might better reflect timing that would have least impact to landowner operations.
5. ROE / Arbitration Processes
   1. Suggestion by landowner representatives that unresolved landowner issues, such as depth of cover, crossings, and possibly compensation, ought to be dealt with in advance of or at the certificate proceeding.
   2. Arbitration process - general consensus that the length of time to hearing and the length of time to obtain a decision post-arbitration to too long.
   3. Suggestion by landowner representatives that the basis for determining the level of compensation prescribed by the NEB Act, and the right of expropriation, are inappropriate. In response, it was suggested by a company representative that there would be broader public interest impacts of such changes, that extend beyond the pipeline companies and landowners.
   4. Suggestion that insufficient compensation for all impacts to landowners creates the perception or reality that landowners are providing a subsidy to industry through uncompensated impacts to their operations and personal inconvenience.

Table 2

Theme 1 - Landowner access to information, resources, and expert advice

• landowner associations/organizations have been, and can be, beneficial for:
  • education - e.g. legal terminology for land acquisition agreements, land rights, and regulatory processes
  • shared information
  • funding - for legal counsel; for technical expertise
  • what rights landowners have in certain situations
  • keeping landowners apprised of changing standards/regulations/expectations, and what they mean
  • leverage, and better ability to negotiate, when dealing with companies and regulators
  • being the intermediary between companies and landowners in project-related consultations (making sure landowners get the right information at the right time)
• there should be formal, organized frameworks in place for industry to fund these associations
  • if this takes place, NEB needs to recognize this industry investment in project costs (tolls, competitiveness considerations)

Theme 2 - Interactions between companies (particularly land agents and project planners/managers) and landowners

• need for improved clarity and consistency in information provided, communication style, behaviours
• land agent behaviours, techniques, and timing - be careful and considerate of landowners' needs and responsibilities
• need to focus on building trust rather than just hammering out deals and meeting the letter of the law as quickly as possible
• need to carefully consider the balance between early/often and too much interaction
• land agent training needs to be re-evaluated and new standards (for interacting with landowners) need to be developed that pay more attention to landowner needs and expectations rather than just company bottom-line expectations
  • a management system approach should be adopted
• are land agents necessarily the most appropriate first line of contact for company interactions with landowners?
  • when planning and managing and project, perhaps the company's first point of contact should be the landowner association
  • landowner associations are better prepared to deal with the company on these project matters at the start (whereas landowners may be intimidated or overwhelmed)
  • landowner associations have the capacity to organize project-related information and communications in a way that makes them more understandable and less intimidating for landowners

Theme 3 - Key elements of easement/RoW agreements that need to be addressed and accounted for (standardized framework for easement agreements):

• Compensation
  • structure needs to make the pipeline passing over a landowner's property an asset rather than a liability - e.g. annual payments suggested
  • regulatory framework needs to be reviewed/renewed
  • land agreements need to appropriately reflect "devaluation" effect on landowner's property
    • disproportionate level of risk placed on "host" landowner - how do you quantify this?
  • land agreements need to reflect burden on "host" landowner when the rest of the "host" municipality is benefiting from the tax revenue
• Land rights issues
  • S. 86 of the NEB Act needs to be tweaked to cover: public safety; new restrictions added to property (e.g. 30 m safety zone); new and changing standards/expectations placed on landowners (e.g. environmental farm plans, drainage requirements, depth of cover); changes to farm practices; liability; crossing with farm equipment (i.e. normal farming practices); abandonment

Theme 4 - Challenges and next steps for landowner associations/organizations

• do landowner associations/organizations truly reflect the needs of all landowners?
  • how broad is their constituency?
  • how complete is their constituency? - do they know, and have access to, all landowners affected by an NEB-regulated facility project, and can they provide representation and services for all of these landowners?
  • do all potentially affected landowners want to be represented by these associations?
• can companies, and regulators, trust that these landowner associations appropriately represent the concerns and interests of affected landowners?
  • what needs to be done to establish and build this respect and trust?
  • do these landowner associations need to expand/broaden their memberships in order for companies and regulators to gain their respect and trust?
  • what do these landowner associations need to do in terms of their governance, programs, attitudes, and behaviours in order to gain the trust of companies and regulators?

Company Consultation Programs and Landowner Notification

Table 1

• timing of notification seems short
  • landowners hear about pipeline when concept developed, project proposal submitted to regulator
• landowners need verbal notification about the concept as early as possible
  • industry concerned that many projects don't get built - would landowners get too much information that is not relevant?
  • question of how much detail and when - at the conceptual level man details of the project (location, schedule) are not concrete, but landowners are interested in the details
  • what level of certainty and detail is needed when notification occurs?
• more time needed between the time of standard notification and time to NEB hearing
• also timing (of consultation, hearings, etc.) within the year can create conflicts e.g. pressure and time taken up around Christmas, agriculture time constraints
• costs incurred when time spent on non-farming activities
• public meetings as a method of consultation
  • difficult to deal with past and future (based on past experiences) issues in this venue
• changes in practices (improvements) are not reflected in company consultation programs
• costs incurred by landowner within consultation process
  • opportunity costs
  • level playing field
• company interaction with landowner often starts with land agents
  • typically the starting offer from the land agent is very different final agreement
  • want to detail with specific issues and compensation
• industry looks to NEB for requirements-are we looking to change the NEB Act?
• changes to consultation and notification should be captured in legislation
• industry has tools and programs in place
• industry feels vast majority of landowners are okay with present processes and interactions with industry.
• rely on guidelines and requirements but tailor practices to specific project, communities and landowners.
• public meetings - land owners might not express their concerns at a large public meeting; however, this is not necessarily an indication there are no concerns
• notification - earlier with more specific information, but industry may need information from consultation to inform routing design.
• public meetings-content
• detail not specific enough in terms of route design
• meeting burn out a factor
• a proposed pipeline in an existing ROW - wouldn't the company know many site-specific issues and be able to provide more design details sooner?
• landowner knowledge of pipeline routing and design issues - opportunity for more education?
• what is the company's flexibility and desire to re-route ROW to accommodate land use and site specific issues?
• do this during consultation program, not at a hearing
• notification by letter-question whether landowners read notifications
• notification timelines- it was suggested that 1 year between notification and application submission/hearing was adequate to allow landowners to prepare (i.e., if most issues are not resolved before the hearing).
• if issues could be resolved pre-hearing there would be costs involved in resolution (i.e., funding for landowners to participate in consultation and detailed negotiations; obtaining legal support for negotiation)
• if not public meetings/open houses
  • meetings with landowners and land owner associations
  • on new projects
  • on ongoing issues with existing projects
  • landowners expect their participation and issues raised would be followed-up to see results/resolution to issues raised
• notification
• okay to have a longer timeline
• industry was wondering what was the expectation on level of detail required when notification occurs
• expectation by industry, if issues could be dealt with upfront between companies and landowners, there must be efficiencies in the hearing process (i.e., timelines and scope of the issues at the hearing)
• industry consultation guided by NEB's requirements
• open houses
• content of information
• location of meetings
  • in future-could contact associations to ask about locations
  • help getting word out
• notification of open houses
• timing
• some members didn't receive the notices
• using organizations as a point of contact for consulting with members
• how to contact non-members
• government policy implications and how those affect company consultations
• government policies, or lack thereof, on land and energy use and planning affect project specific issues/hearings
• issue of compensation not currently dealt with under NEB Act
• but NRCan process not satisfactory
• how can this change?
• issue of costs for landowners associations in consultation and negotiation
  • what can be funded?
  • who pays?
• opportunity to rebuild trust based on good faith relations
• sense of being treated fairly
  • respecting rights
  • intentions vs. actions
  • landowners reflected on yesterday's comments and drew similarities between position/history of treatment of Aboriginal and the current position of landowners
• landowners and industry want to move forward

SUMMARY

Timing of notification-1 year/level of detail

Moving certain issues into pre-application pre-hearing window

• negotiate to resolve issues
• expect greater efficiency in hearing (scope and timeliness)

Industry looks to NEB for requirements in regulations

Open houses

• timing, content
• location
• role of land owner associations

Costs

• what costs can be recovered
• who pays
• level playing filed

Moving forward

Table 2

1.

• timelines when companies begin their consultation programs
• company information often complex - landowners don't always understand it
• landowners intimidated by regulatory process - don't understand it
• Board needs performance criteria to know if consultation has been adequate
• Landowners need to know route earlier and be better educated about project
• Timing when company representatives call is a concern

2.

• Often landowners don't know questions to ask when the land agent shows up
• System is not broken but there is room for improvement
• Consultation programs must consider timing of when to start and availability of landowners
• NEB has a role to play to provide landowners with information about project impacts
• Main consultation issues can be addressed by having some standard clauses in easement agreements
• Companies have an interest in good relationships with landowners
• Companies need to have more landowner involvement in consultation initiatives

3.

• Need for a code of conduct for land agents and needs to be enforced to ensure accountability. Similar to Alberta Land Agent Licensing Act. Alberta is the only province with such an Act.
• Motivation of contracted land agent is to get agreement at the least cost
• Limited pool of land agents to do work, often same people for ERCB and NEB projects but conduct themselves differently
• Companies should use company operations representatives to make first contact in communities
• Companies have to have programs in place to ensure land agents are representing company appropriately

4.

• Problem that not all provinces have guidelines/licensing for land agents - need to ensure consistency and enforcement/compliance
• Companies have principles for land agent engagement with landowners
• Need for NEB regulation of land agents so landowners have someone to call when land agents not acting properly
• Landowners need to better understand the importance of getting involved in NEB processes and company consultation programs
• Companies need to ensure the landowners bring out their issues - need to "unearth" them
• Landowners would rather deal with company than contracted land agents

5.

• Land agents may have misrepresented the NEB - one land agent presented a document that talked about "NEB approved compensation"
• Timing of Consultation
  • Companies don't have much time between when a deal is signed with shippers and in-service date
  • Consultation programs are designed specifically for landowners (vs municipalities or others)
  • Consultation during operations - integrity digs - landowners want everything listed on paper and provided notice as early as possible i.e.:
    • Timing
    • Location
    • Construction methods
    • Wet weather shutdown
    • Compensation package
    • Personal/company contact
    • Public awareness program
    • One-call ERP contact info and issues/concerns

6.

Summary

Timing of Consultation activities

• Needs to be early in the process so landowner can influence desitn/route
• Needs to respect availability of landowner

Complexity of Company/project information

• Needs to be in a manner landowner can understand so they can raise concerns and understand impacts

Land Agent Role

• Landowners would rather deal with company than land agents
• Communication methods are a concern
• Need for a code of conduct and licensing of land agents
• Need for more training so they can better represent interest of the company

7.

• Consultation through lifecycle
  • Not oly at pre-approval
  • Need for integrity dig consultation protocol
  • NEB has role in explaining process and project impacts
  • Landowners need to understand importance of bringing issues forward and getting involved with companies. NEB has a role to play in supporting this.

Afternoon Session – Stream 2

Table 1: Capacity

• Companies can recognize issues for projects and do some proactive info gathering in the development stage (eg. drainage) TMX example
  • Transparency needed
  • Interest-based
  • Need to measure results
• If issues are dealt with before the certificate hearing won't leave issues hanging for the hearing
• Regulator needs to make decisions on landowner issues for a project before the certificate hearing
• Companies need the regulator to fall in line with that if it is within its mandate
• Experience with NEB process is very important to groups - hearing participants need to be in contact with the NEB
• Industry feels that the majority of their company relationships are not broken
  • Some landowners would disagree
• Multi-stakeholder group to work on NEB presentation - a generic presentation that could be delivered at public meetings or at smaller meetings with landowners/landowner associations
• Companies don't necessarily have detailed info on the project at the time of notification and use consultations to develop project
• Who is being used for the consultation? Land agent may not be appropriate first contact with landowners for route selection consultation
• Companies want to be the primary communicator for the project (not rely on the landowner association)
• Easement agreements are a key document for landowners - what is the role for the NEB?
• Template for easement agreements? Negotiate the easement agreement first and reduce need for discussion on this issue in hearing
• Interest-based negotiation on some issues more effective than proceeding to a hearing
• Legal help/expertise needed - to support landowners in hearing or in negotiations
• Landowners feel they need a level playing field
• Companies could include more information to landowners in initial mail-out
• Change the NEB information to make it easier to understand
• Difficult for landowners to participate due to financial restrictions
• Create a company association for dissemination of NEB information?
• CAPLA can take charge of informing and getting landowner online - landowners want to deal with and trust other landowners

Producing evidence

• Decisions reflect quality of info provided
• Costs to hire experts

Source of funding

• California example - "office" to advocate for public interests - where would funding to support this office come from?
• Perception of industry funding an independent process
  • Poor

Participant Funding Program

• Role for NEB to identify those shared needs pre-hearing and to fund shared interests or shared research/info needs
• Consistent principles of public participation - consistent between provincial and federal jurisdictions and processes
• Similarities across jurisdictions
• Costs awarded in Detailed Route Hearing
• Industry is concerned about funding frivolous expenses and encouraging a "cottage industry" (EUB cost awards: 80-90% of funding in one year went to 10 individuals)
  • Would funding create more issues?
• Legal/expert advice
  • Schedule of costs that could be covered so costs wouldn't escalate -who decides what level of costs?

Timing

• After the submission of the preliminary information package (PIP)?
• Companies come to NEB first in pre-application stage before contacting landowners (and landowner association)

NEB's role with respect to compensation and payment

• New role? Or same mechanism?
• Opportunity for debate/discussing on compensation

Role of NEB in company planning and design phase

• Company confidentiality of info
• Company active during this phase and collecting info, contacting landowners
• Route planning and selection in new areas
• When does NEB get involved?
• What could the NEB's influence be in this phase?

NEB info on process

• Landowners (and landowner association) need info early about process- NEB to provide realistic expectations and information about process so landowners can decide if they want to participate
• Steps in process: pre- application and post hearing steps could affect landowner
• One-on-one meetings between landowners/landowner associations and NEB vs. open house - smaller meetings are better to talk about the issues and discuss process
• Access to info by computer - not all landowners use computers or have access to internet
• NEB could raise its credibility and profile with landowner and landowner association by direct contact
• How can the NEB identify potentiall affected landowners in advance of an application - accessing landowner lists (there are privacy issues) - can landowner association provide this info?
• NEB needs resources to play a more active role engaging landowners prior to an application and for regulating/compliance activities
• Difficult to provide info on a project-by-project basis - raise capacity of landowners on role of NEB

Table 2: Hearing Process/Decision Making

Board's Decision Making

• Use of expert information - Board's reliance on or ability to access expert information
• sometimes the Board appears to force parties to deal with issues themselves rather than Board deciding
• Board decisions are transparent even though we may not agree with them

Schedule in Hearing Order

• impacts to both landowners and companies when dates change
• industry taxed to get IRs done in short time frames
• timeframes too short for landowners to participate effectively
• companies find timelines short also
• need for clear timelines
• don't want to waste time debating process
• NEB could have pre-hearing conference to discuss timing/schedule - then schedule set based on that input and schedule adhered to
• problem for both companies and Land Owners if schedule changes
• problem when Hearing Order comes out during critical agricultural periods - i.e., costs for attending hearing during calving for example
• in everyone's interest to have a short hearing, can don this by resolving issues in advance

Access to Board Staff

• Board counsel helpful with process information

Hearing Location

• needs to be local to landowners
• landowners access to business services such as copy machine, email etc during hearing

Indicators of Success

• if issues dealt with effectively up front, an indicator is number of hearing days and number of information requests

Alternatives to Issue Resolution at Hearings

• landowners organizations need to be supported, i.e., their people, time, resources
• better to address issues as much as possible outside hearings
• could have pre-hearing technical conferences to address landowner issues; interest based negotiations

Hearing

• intimidating for landowners
• formal process important for companies as there is lots at stake
• need for mechanism for participants to provide comment on each hearing process, post-hearing survey not effective
• concern about influence or perceptions
• landowners need funding to put evidence together and not at last minute
• less weight given to letters of comment or oral presentations but expensive for landowners to produce evidence
• may be helpful for companies to work with landowners in advance to understand project/impacts
• town hall better forum than open house for getting project information to landowners

Quantity of Information

• difficulties for landowners to get through all project information
• no resources for landowners to put expert evidence together
• Board should filter information requests that serve no purpose or have already been answered
• hearing issues can be addressed through good easement agreements

Table 3: Regulatory Development

• Landowners have not had a voice in the past, but need to effectively participate i.e. need funding to hire experts to analyze effects of regulatory change or other ways? (everyone needs input - like contractors for Damage Prevention Regulations)
• Other ways to help assist without funding:
  • Model where experts are shared between companies and landowners
    • Needs to be independent unbiased expert; consider at least trying this option on concepts and facts; seek input on proposals but not recommendations -ensure input from all sides. (may need more expertise on understanding legal consequences)
  • Based on trust and working together
• Need to be heard and taken seriously
  • Equal footing, capacity regardless of size of group
• Process is flawed (need to fix that before engaging)
  • No understanding of why things are not being done
  • Need for initial dialogue to explore concepts before it gets too legalistic (and know that regulators will somehow respond)
  • Need to respond to why concepts ignored (need to track steps and explain e.g. liked process for streamlining order)
  • Need to engage
• How to get the message out and get all the right people involved
  • Best to have broader notification initially
  • Identification of interested parties -First nations. (comprehensive list)
  • NOTIFICATION over communication is better than not enough (e.g. Letters, web, notices etc. from NEB in simple terms -though landowner associations? Emails?)
  • NEB should have landowner lists? Privacy issues? Waiver? (industry feels under microscope)
  • Ask companies to share with landowners
• NEB needs to take lead to disclose (what are we trying to fix) intent of regulatory changes and wise to involve as many stakeholders as possible
• Solution to assist landowners in analysing regulatory change effects should come from NEB
• Consider guidelines on how to settle (develop partnership)
• Need regulations in place to allow meaningful negotiations that can lead to settlements (CAPLA's paper on four streams)
  • Need for system in place that encourages negotiations
• Manage expectations for all parties
• Regulatory process needs to be better explained upfront (and transparent) i.e. who, when, how you can participate…need to understand - timelines
  • ensure that companies and landowners are satisfied with process vs. outcome
  • explain Canada Gazette process and Department of Justice involvement
  • identify interests first (shared expert?) then agree an proposal (agreement between parties before it goes too far) then bring in legal experts
• Early consultation (info sessions, publication, advertisement etc.)
  • Use same public consultation as hearings and plain langrage explanation of contemplated changes even before draft is out (need to do that early)
• Energy policy needed from government
• Consider independent source of funds for experts
• Continuous improvement based on satisfaction with process
• Regulatory framework- communicate it simply
  • Gives context for regulatory change- explain clearly what outcome will be
  • Ability to come prepared to meetings and de-mystify process
• Want continuity with NEB staff
  • Builds trust
• Continue to ask landowners how they want to be notified and involved
• Follow same public consultation process as we do for hearings
• Road map already in place e.g. CAPLA involved in DPR but DPR process has been challenging for all parties
• CAPLA needs to be funded so they can respond
• Companies need to be open to working with landowners to be able to share resources
  • Have already seen openness in companies through negotiations
• What would it take for parties to trust NEB expertise?
  • NEB is only as good as the input it receives
• Legal advice is key to all
• Should consider NEB experts and perhaps use them more
  • Retention/attrition issues
• Different parties need their separate evidence to support negotiations
• Eg. SCC inquiry- an example of NEB putting out good evidence
• IN THE END, need further round tables on regulatory changes

 

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Date Modified:

2011-10-28