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Chapter 5
Routing and land matters

5.1 Introduction



The National Energy Board's assessment of a pipeline application under the National Energy Board Actincludes consideration of the appropriateness of the general route of the proposed pipeline and the general location of associated facilities, the amount of land required, and the proponent's land acquisition approach. If a certificate authorizing a project to be built along the general route is issued, a further process determines the location of the specific or detailed route.

 

A different legislative scheme applies in relation to facilities approved under the Canada Oil and Gas Operations Act. Applications under the Canada Oil and Gas Operations Actare usually not filed with the National Energy Board until the route has been established and all required land rights for the project have been secured. However neither the National Energy Board Actnor the Canada Oil and Gas Operations Actrequires that all necessary land rights be acquired prior to a company submitting an application for a project.

Notwithstanding the differing legislative schemes and practices under the National Energy Board Actand the Canada Oil and Gas Operations Act, we considered similar factors in our assessment of the proposed routes for the Mackenzie Valley Pipeline and the Mackenzie Gathering System.

We recognize that federal and territorial departments and agencies have responsibilities in respect of land authorizations and permitting

 

for the Mackenzie Gas Project. Our assessment may assist those departments and agencies in their consideration of the various applications for land use, land rights acquisition, and other approvals.

Companies typically use surveys, land studies, and other work such as selection criteria and alternatives to identify, assess, and select a proposed pipeline route and facility locations when preparing pipeline applications under both the National Energy Board Actand the Canada Oil and Gas Operations Act. Refinements are made through further study and consultation with communities and individuals which could be affected by the project.

In addition to the factors referred to above, parties raised issues in respect of land use plan requirements and the status of access agreements. Each of these will be addressed in turn in this chapter.

5.2 General route and
facilities site selection

5.2.1 General route selection – Mackenzie Valley Pipeline and
Mackenzie Gathering System

The Proponents have identified a general route for the proposed Mackenzie Valley Pipeline and the Mackenzie Gathering System pipelines that consists of a one-kilometre wide corridor. Within this corridor, the Proponents identified a preliminary route which has been and will continue to be subject to refinement through further study and public consultation. Tracé proposé du réseau de collecte Mackenzie

Proposed route of the Mackenzie Gathering System

The upstream gathering pipelines consist of four laterals, one from each field and a fourth extending from the Storm Hills pigging facility south to the Inuvik Area Facility (see Figure 1-2). From the Inuvik Area Facility the natural gas liquids pipeline and the Mackenzie Valley Pipeline would share a common right of way south to Norman Wells, which would be the terminus of the Mackenzie Gathering System (see Figure 1-3). Latéral Niglintgak

Niglintgak lateral

This lateral would be located entirely within the Inuvialuit Settlement Region and would extend 14.7 kilometres in a 30-metre wide right of way from the Niglintgak gas conditioning facility to the Taglu gas conditioning facility. The route would traverse the flat delta eastwards, and cross three major channels before reaching the Taglu gas conditioning facility.

On the record

Route and site selection criteria

The criteria used by the Proponents to evaluate the preliminary route and identify alternatives included:

  • route placement, including options for reducing the length of the pipeline, potential facility sites, and locating the right of way in order to avoid encroaching on existing habitats, be close to existing infrastructure, and parallel or use existing linear disturbances;
  • reducing the number, complexity, and width of watercourse crossings;
  • geotechnical considerations such as avoiding springs, perched aquifers and steep, ice rich, or unstable slopes, and the distribution of discontinuous permafrost;
  • environmental considerations such as land use plans, socio-economic concerns, and reducing proximity to critical wildlife habitat and important cultural or archaeological sites;
  • construction matters such as slopes, muskeg and fen areas, grading, access, ground conditions, crossing linear facilities, and the need for adequate workspace;
  • community interests; and
  • relative costs of the route alternatives.

On the record

Route and site selection process

The Proponents' stated objectives in the route and site selection process for the Mackenzie Gas Project included:

  • avoiding sensitive environmental and cultural areas;
  • reducing disturbance to communities and the landscape;
  • satisfying engineering and construction requirements; and
  • reducing cost.

The Proponents set up multidisciplinary teams of engineering, construction, and environmental specialists to assess potential pipeline routes and facility sites. These teams assessed available information from previous pipeline studies and proposals in the area to determine the potential for using these previously considered locations.

The following methodology was used by the Proponents to select the Mackenzie Gas Project's proposed route and sites for the associated facilities:

  • establish route and site selection criteria;
  • identify preliminary pipeline routes, sites, and alternatives;
  • conduct field investigations involving community representatives;
  • revise preliminary site and route locations based on field investigations;
  • consult with communities on sites and routes; and
  • revise site and route locations, where practical, based on community input.

The selected preliminary route for the Mackenzie Gathering System and Mackenzie Valley Pipeline followed the alignment of the 1984 Polar Gas Project application route from the Mackenzie Delta to Norman Wells, and paralleled the existing Enbridge Pipelines (NW) Inc. Norman Wells Pipeline from Norman Wells to the Northwest Territories /Alberta border.

Alternatives to the preliminary route were identified by the Proponents for further investigation through desktop study, field investigations, and community consultation using the route and site selection criteria set out below.

The preliminary routes and alternatives for the Mackenzie Gas Project were divided for evaluation into 15 segments for the upstream gathering pipelines and 29 segments downstream of the Inuvik Area Facility. Within each segment multiple routes were identified and assessed. After a route within each segment was selected, field reconnaissance and community consultation were carried out to make further routing refinements. These refinements:

  • recognized route issues such as the severity of side hill slopes not evident during the desktop study;
  • took advantage of more favourable terrain, such as better approaches to water crossings; and
  • used other features, such as cut lines.

Did you know?

Definitions

General route - when a pipeline company applies to the National Energy Board under the National Energy Board Actfor approval of a pipeline longer than 40 kilometres, the first stage involves the assessment of the project. At this stage, the company files an application to the National Energy Board that includes a general route, which may be a corridor that is much wider than the actual right of way that would ultimately accommodate the pipeline. In the case of the Mackenzie Valley Pipeline, the applied-for general route is a one-kilometre wide corridor, within which the much narrower pipeline right of way would be located. At this stage, the National Energy Board, through its public hearing process, considers a variety of factors, including the appropriateness of the general route, to determine whether the project should be approved. If the project is approved, the general route is also approved, and the pipeline company can proceed to the second stage of pipeline route approval, which is approval of the detailed route.

Preliminary or preferred route - in its application for approval of a pipeline project under the National Energy Board Act, a pipeline company may include with its proposed general route a preliminary or preferred route for its pipeline. Such a route often serves as the centerline for the corridor used by the company to define its proposed general route. This provides the pipeline company with a specific line of focus for feasibility, design, and impact studies for general route selection, and it can also provide advance opportunities for the company to focus its landowner and community engagement efforts for confirming and securing a final pipeline right of way route in preparation for detailed route approval.

Detailed route - if a pipeline company receives a certificate from the National Energy Board that approves its pipeline project, the company can proceed to the second stage of pipeline route approval, which is approval of its detailed route. At this stage, the pipeline company must prepare plans, profiles, and a book of reference (PPBoR) that describe the precise location of the pipeline right of way in relation to the land properties it crosses. The PPBoR define the pipeline company's proposed detailed route. The pipeline company must make the PPBoR available for public viewing and must serve notice on directly affected landowners as well as publish notices in newspapers in the vicinity of the proposed route. Landowners and persons that may be adversely affected have 30 days to file written statements of opposition to the proposed route. If the National Energy Board receives a written statement of opposition within the 30 day timeframe, the National Energy Board may set the matter down for a detailed route hearing, allowing the affected person to be heard by the National Energy Board before a decision is made on whether to approve that section of the detailed route. The pipeline company cannot start construction of any section of its proposed pipeline until that section of the detailed route has been approved by the National Energy Board.

Taglu lateral

The Taglu lateral would begin at the Taglu gas conditioning facility and extend 80.9 kilometres in a 40-metre wide right of way in a southeasterly direction crossing the east channel of the Mackenzie River to the Storm Hills pigging facility south of Big Lake. This lateral would be entirely within the Inuvialuit Settlement Region.

Parsons Lake lateral

The Parsons Lake lateral would extend 26.4 kilometres in a 30-metre wide right of way from the Parsons Lake gas conditioning facility located at the northeast corner of Parsons Lake, south around the lake, and then in a southwest direction to the Storm Hills pigging facility. All of these facilities would be located within the Inuvialuit Settlement Region.

Storm Hills lateral

The Storm Hills lateral would extend 67.2 kilometres in a 40-metre wide right of way from the Storm Hills pigging facility to the Inuvik Area Facility located in the Gwich'in Settlement Area.

Natural gas liquids pipeline

The proposed 457 kilometre natural gas liquids pipeline route would extend from the Inuvik Area Facility to Norman Wells where it would connect with the Enbridge Pipelines (NW) Inc. Norman Wells Pipeline. It would share a 50-metre wide right of way with the Mackenzie Valley Pipeline for all of its length except for the

final one kilometre leading into Norman Wells, which would be located in a 30-metre wide right of way. The natural gas liquids pipeline would begin in the Gwich'in Settlement Area and terminate in the Sahtu Settlement Area.

Proposed route of the Mackenzie Valley Pipeline The proposed 1196 kilometre Mackenzie Valley Pipeline route (see Figure 1-3) would:

  • generally follow the Mackenzie Valley from the proposed Inuvik Area Facility to a pig receiver adjacent to the NOVA Gas Transmission Ltd. interconnect facility, just south of the Northwest Territories-Alberta border;
  • pass through the Gwich'in and Sahtu Settlement Areas, and the Dehcho Region including both Crown and Aboriginal private lands;
  • follow the existing Enbridge Pipelines (NW) Inc. Norman Wells Pipeline right of way for about 45 percent of its length and parallel previous disturbances, such as cut lines, the winter road, and the Mackenzie Highway;
  • be located within the pipeline study corridor identified by the Dehcho First Nations and the Government of Canada; and
  • share a common right of way with the natural gas liquids pipeline from the Inuvik Area Facility to Norman Wells, where the natural gas liquids pipeline would connect to the existing Enbridge Pipelines (NW) Inc. Norman Wells Pipeline.

5.2.2 Facilities site selection

The Proponents' site selection process for the Mackenzie Gas Project facilities involved the following activities:

  • establishing site selection criteria;
  • identifying preliminary sites and alternatives;
  • conducting field investigations involving community representatives;
  • revising preliminary site locations based on field investigations;
  • consulting with communities on sites; and
  • revising site locations, where practical, based on community input.

The Proponents initially identified five-kilometre target areas for each of the following facilities required to operate the Mackenzie Valley Pipeline: compressor stations, pig launching and receiving facilities, a heater station, and valve sites.

Similarly, five-kilometre target areas were identified for the Storm Hills pigging facility and the Inuvik Area Facility for the Mackenzie Gathering System.

The target areas were determined by a hydraulic analysis of the Mackenzie Gas Project pipelines. Alternative sites within the target areas were then identified and evaluated based on hydraulic requirements, proximity to the pipeline route, and site-specific environmental, construction, operations, and maintenance considerations, such as access. The assessment of potential pipeline valve sites along the route also considered the requirements for potential

future compressor stations. This process led the Proponents to select the initial sites for the Storm Hills pigging facility and the Inuvik Area Facility for the Mackenzie Gathering System and the proposed compressor station sites, along with the heater station site and valve sites, for the Mackenzie Valley Pipeline.

5.2.3 Community and government input into route/site selection

The Proponents submitted that the route and site selection process involved extensive discussion with northern communities, northern regulators, land use planners, and other interested parties. The Proponents plan to continue consulting with stakeholders throughout the regulatory process.

Community representatives provided local knowledge about cultural resources and land use, as well as personal experiences with the Mackenzie Highway, the winter road, construction of the Enbridge Pipeline (NW) Inc. Norman Wells Pipeline, and local resource use. Some representatives provided input to the route evaluation teams, which was used in route selection.

The Proponents reviewed the pipeline route with representatives of the Dehcho First Nations and Indian and Northern Affairs Canada as part of its community consultation. This review was in support of the Dehcho interim land withdrawal process regarding the location and size of a potential pipeline corridor across the Dehcho Region, within which the lands would

be identified to accommodate potential pipeline development. This process established a 2.5-kilometre wide pipeline corridor on the east side of the Enbridge Pipeline (NW) Inc. right of way near Trainor Lake, and a two-kilometre wide corridor on the east side of the Enbridge Pipeline (NW) Inc. right of way near Headwater Pond (Deep Lake).

The Proponents undertook two further field studies to assess and refine the route for larger watercourse crossings, such as the Ochre River crossing, and to align it with proposed facility sites, such as compressor stations, interconnections, and valve sites selected for potential future compressor stations.

Information from field studies and community consultation was used by the Proponents to refine the preliminary route and sites prior to filing its application with the National Energy Board. These refinements are summarized in Table 5-1.

Issues raised and route refinements made following filing of application Subsequent to the Proponents filing their applications, a number of local Aboriginal communities identified routing and siting concerns and raised issues with the Proponents' route selection approach.

Sahtu communities identified key cultural areas, such as Bear Rock, that they believed should be protected in project design.

The Pehdzeh Ki First Nation opposed the proposed pipeline routing and siting of facilities in the Blackwater River area because of its historical, spiritual, and cultural significance. In addition, the Pehdzeh Ki First Nation raised concerns about the Proponents' plan to shift the route away from the existing Enbridge Pipelines (NW) Inc. Norman Wells Pipeline route so that it would be closer to the community of Wrigley. The Pehdzeh Ki First Nation also

identified Smith Creek Falls as an important cultural area and recommended the proposed pipeline route be relocated as far away from this area as possible, subject to consultation with Pehdzeh Ki First Nation.

The Sambaa K'e Dene Band recommended that a proposed heater station be relocated to a site identified by the community in order to minimize the overall project footprint.

Local Aboriginal communities also urged that traditional knowledge be used in pipeline routing and selection of related facility sites. For instance, the K'ahsho Got'ine Lands Corporation submitted that traditional knowledge should play a decisive role in designing the routes and sites, and expressed concern that these decisions were being made by engineers which may not be familiar with the land or the traditional way of life.

Table 5-1 Refinements to the preliminary route

Table 5-1 Refinements to the preliminary route
Project Change
Moving the proposed route about six kilometres farther east of Travaillant Lake to avoid disrupting areas of cultural and environmental significance to the Tsiigehtchic community and placing the proposed route in an area identified by local land users.
Moving the proposed route 2.5 kilometres east for 39 kilometres of its length to maximize distance from Trainor Lake (or K'eotsee Lake, as it is known) while remaining within the agreed-to Dehcho interim land withdrawal pipeline corridor, as requested by both the Trout Lake community and as identified in the Sambaa K'e Traditional Knowledge report.
Realigning about 4.5 kilometres of the proposed route at the Ochre River crossing to accommodate the preferred method of horizontal directional drilling.
Shifting the proposed route in the Willowlake River area to the east side of the Mackenzie Highway to avoid encroaching upon residences, areas of high archaeological potential, and historical big game mineral licks, as requested by the local community.
Moving about 8 kilometres of the proposed route up to 200 metres to the east to avoid a University of Alberta research plot and to connect into the proposed valve site.

In response to these issues, the Proponents indicated that traditional knowledge has been forthcoming through a variety of methods. Early in the project, the Proponents consulted local communities, particularly Elders and Elders' groups, to provide direction for establishing the pipeline route and some major facility sites. Community involvement helped the Proponents gain an understanding of areas to avoid, areas that would be acceptable, and areas that would be better alternatives. The Proponents also worked with communities to conduct traditional knowledge studies, such as the one conducted in the Gwich'in Settlement Area. The Proponents used the results of this study to assess and refine their project designs, and stated that they have made similar efforts for those areas affected by the project where traditional knowledge studies have been completed. For example, the Sambaa K'e Dene Band traditional knowledge study recommended that the Trout River heater station be moved about three kilometres south of its originally proposed site, and this change was adopted by the Proponents.À la suite d'examens complémentaires, et en réponse à des questions qui ont surgi au cours du programme de consultation publique après le dépôt de la demande auprès de l'Office, les promoteurs ont apporté d'autres changements au tracé général et aux sites proposés des installations, lesquels sont résumés dans le tableau 5-2.

Based on further investigations, and in response to issues raised through its consultation program following its initial application filing with the National Energy Board, the Proponents made further changes to their proposed general routing and site locations which are shown in Table 5-2.

The Proponents submitted that the adjustments identified in their November 2005 project update reduce the proposed pipeline length, resulting in reduced footprint, cost, and environmental impact. Sahtu communities identified key cultural areas, such as Bear Rock, that they believed should be protected in project design.

Responding to community input, increased costs, and ongoing engineering and construction planning, the Proponents filed another Project Update in May 2007. Although many of the project elements did not change, the Proponents relocated the proposed Great Bear River compressor station about eight kilometres downstream, to the east side of the Great Bear River, in response to requests from the community of Tulita. The Proponents submitted that moving the compressor station closer to Tulita is intended to reduce the cost of

potential community access to natural gas and electricity, as well as to increase its distance from the culturally significant Bear Rock. To accommodate this adjustment, the one-kilometre wide pipeline corridor was realigned, which increased its length by 1.4 kilometres.

The Proponents submitted that when a site or proposed route is moved, the rationale for that change is documented, agreed to, properly approved, and recorded so that those involved in subsequent phases of the project have a reference record of commitments, changes, and issues.

In situations where the Proponents have not been able to make routing or siting adjustments to address concerns, they have sought other

Table 5-2 Project changes filed in November 2005

Table 5-2 Project changes filed in November 2005
Project Change
Moving the Inuvik Area Facility about 16 kilometres south, so it will be closer to the Dempster Highway and located on a flatter site.
Reducing the number of initial compressor stations from four to three, and relocating the proposed station sites within the corridor.
Increasing the number of valve sites to 11 and relocating three of the original valve sites to accommodate the revised system hydraulic requirements for potential future compressor stations.
Shortening the pipeline by about 26 kilometres as a result of relocating the Inuvik Area Facility, adjusting the pipeline corridor, and other route adjustments.
Shortening the pipeline by about 3.8 kilometres by straightening two segments of the preliminary route near Travaillant Lake and relocating the corridor to accommodate the rerouting.
Moving a 14.7 kilometre segment of the preliminary route near Wrigley up to two kilometres to the east, and making the necessary adjustments to the one-kilometre wide pipeline corridor, in response to a community request to move the pipeline further away from a sacred spring and burial grounds.
Relocating the Loon River valve site 14 kilometres to the north based on community feedback regarding a nearby hunting area, and converting the site to a compressor station site.
Exchanging the Blackwater River and Trail River compressor station for a single compressor station near River Between Two Mountains, in response to Pehdzeh Ki First Nation concerns about the culturally significant Blackwater River area and due to pipeline hydraulics considerations.

measures to help mitigate the concerns, such as changing the construction schedule. The Proponents stated that in those cases where agreement cannot be reached, the Proponents contact the concerned parties to explain why an agreement cannot be reached.

Subsequent to the November 2005 and May 2007 project updates filed by the Proponents, some routing and siting concerns were still being raised by Aboriginal communities in the Dehcho Region.

The Dehcho Elders and Harvesters stated that the routing of the pipelines and the siting of all project facilities and activities need to avoid burial and sacred sites.

The Dehcho First Nations submitted concerns that the Proponents' application forces assessment of the project at a very high, conceptual level rather than dealing with the specific concerns of their communities on issues such as pipeline routing and facility locations. As a result, the Dehcho First Nations argued that many community concerns about the project remain unaddressed, and that they are being referred to subsequent regulatory processes rather than being directly dealt with to resolve issues at this stage in the process. For example, the Dehcho First Nations submitted that the Proponents are seeking approval for various block valve locations without any consultations with them as to the acceptability of those proposed locations for future compressor stations.

The Proponents submitted that, based on consultations with communities in the Dehcho Region, further project refinements included moving the Willowlake River block valve site, relocating the watercourse crossing on the Mackenzie River further upstream, and relocating the pipeline route near Satellite Lake.

The Proponents stated that consultation has not led to agreement in every case, and in some cases, the outstanding issues can only be addressed at the permitting stage, following the collection of additional information. They submitted that consultation about the project will continue, and that they will continue to strive to address outstanding concerns, although agreement may not be reached in every case.

The latest version of the consultation summary table filed by the Proponents indicates that there will be ongoing discussions with communities and others with regard to a multitude of project related matters. Regarding the proposed location of the pipeline route and related facilities, this table indicates that outstanding concerns remain regarding the proximity of the proposed pipeline right of way to Satellite Lake and the crossing of a possible underground stream in the vicinity of the community of Jean Marie River. The Proponents have committed to continue dialogue with the residents of Jean Marie River to try to address their concerns. The Proponents noted that the Mackenzie Gas Project's consultation program will continue throughout the regulatory process to afford

an opportunity for communities to provide input on other project adjustments.

In its report, the Joint Review Panel concluded that, based on available information, it considers the location of the proposed pipeline corridor to be acceptable.

Views of the Board

We find that the general routes of proposed Mackenzie Gas Project pipelines, as defined by the one-kilometre wide corridors put forward by the Proponents, are appropriate. We are of the view that, using relevant information and experience for a Northern pipeline project, the Proponents applied a reasoned, systematic, and suitable methodology for selecting the initial locations of the pipelines and facility sites.

We recognize the concerns raised by some communities and stakeholders regarding the need to consider the presence and protection of culturally and ecologically sensitive features in selecting and adjusting the proposed general pipeline route and related facility locations. We note that the Proponents have demonstrated an ongoing commitment to hear from communities along the proposed route and have made a number of substantial adjustments to their selected pipeline and facility site locations to address community concerns, where possible and appropriate. We find

the approach taken by the Proponents to listen to, and to deal with, community and stakeholder concerns in their determination and refinement of the general pipeline route and facility site locations to be acceptable and appropriate for this project.

The location of proposed block valve sites for future compressor stations is determined primarily by the system design of the pipeline. To some extent, their location can be adjusted to accommodate local community concerns. We expect the Proponents to continue consultation with local communities and make adjustments to accommodate their concerns where possible given the system design constraints.

Considering the nature of the lands to be traversed by the Mackenzie Gas Project, we are of the view that the proposed one-kilometre wide corridors provide sufficient flexibility to avoid or minimize impacts to landowners, communities, and sensitive ecological or cultural features in the determination and refinement of the detailed routes of the pipelines.

5.3 General land requirements

The Proponents estimated that the total amount of land required for the Mackenzie Gathering System pipelines, including the 457 kilometre natural gas liquids pipeline and related facilities, is approximately 3055 hectares. For the Mackenzie Valley Pipeline and related facilities, the Proponents estimated that 5265 hectares of land would be required. Land requirements are shown in Table 5-3.

Both the Mackenzie Valley Pipeline and the natural gas liquids pipeline can be accommodated within a 50-metre wide pipeline right of way between the Inuvik Area Facility and the Enbridge Pipelines (NW) Inc. Interconnect Facility at Norman Wells. South of Norman Wells, the Mackenzie Valley Pipeline would continue onward to the NOVA Gas Transmission Ltd. Interconnect Facility within a 40-metre wide right of way. Block valve and cathodic protection sites would be located within the proposed right of way. The proposed 50-metre wide right of way, shared by the Mackenzie Valley Pipeline and the natural gas liquids pipeline, would run for about 456 kilometres, and a 40-metre wide right of way would make up the remainder of the 1196 kilometre Mackenzie Valley Pipeline route.

The Proponents submitted that the different proposed pipeline right of way widths would provide work and travel areas to support safe and efficient construction, including a travel lane for the large construction equipment required (see Figure 5-1). During construction,

temporary workspace along or near the right of way would also be required in such locations as:

  • watercourse crossings;
  • bypasses around ravines and wet areas;
  • deep grade or large slope sites;
  • construction equipment turnaround areas;
  • sharp direction change areas;
  • equipment storage areas;
  • crossings of roads, highways, and other pipelines;
  • valve site installations;
  • pig launcher and receiver installations; and
  • timber storage areas.

The Proponents estimated that more than 1600 temporary workspace sites, totaling about 420 hectares, would be needed in addition to the proposed right of way during construction. This excludes timber storage and bypass areas,

which would be identified as construction planning and engineering progresses. Figure 5-2 shows the Proponents' anticipated typical land requirements, including potential temporary workspace needs, for a conventional open cut watercourse crossing.

The Proponents submitted that three compressor stations and one heater station are initially required for the proposed gas pipeline. The total land requirements for each compressor station would be 9.5 hectares, including allowances for living quarters and helipads. This reflects the size of the area to be cleared. However at the operations stage, each compressor station site would be smaller with an estimated fenced area of between six and seven hectares. The Trout River heater station would require a four hectare area.

Table 5-3 Land requirements by use

Table 5-3 Land requirements by us
Land use Total area1
(ha)
Private land1,2
(ha)
Gathering pipelines and facilities 770 105
NGL pipeline3 2285 1285
Gas pipeline and facilities 5265 1710
Infrastructure4, 5 2690 1150
Temporary workspace4 420 150
Total 9150 3115

1. Includes Commissioner's lands
2. Rounded to the nearest 5 ha.
3. Shared right of way with gas pipeline for 456 km, 2280 ha total.
4. The gathering system and gas pipeline share some sites.
5. Infrastructure includes access roads, barge landing sites, camps, pipe storage
locations, borrow sites and airstrips, some of which will be required for operations.

Figure 5-1 Typical right of way cross-sections

Figure 5-1 Typical right of way cross-sections

Some concern was raised about the amount of lands required for the proposed pipelines and related facilities. Alternatives North submitted that particular attention should be paid to minimizing land disturbance by using existing right of ways and minimizing the width of new ones. The Dehcho Elders and Harvesters submitted that too much land is being taken for the proposed right of way. They stated that its width should be reduced to only what is required to safely build the proposed pipeline, rather than taking extra land just to make the construction process easier, faster, and cheaper.

Conversely, the Lidlii Kue First Nation submitted that they would like the right of way to be as wide as is safely required for the Proponents to do their work.

The Proponents submitted that the minimum right of way width required for safe and efficient pipeline construction activities varies depending on terrain, pipeline size, the number of pipelines to be installed, and the access requirements for construction and support equipment. The Proponents stated that the proposed 50-metre and 40-metre right of way widths proposed for the project would allow for:

  • stockpiling of loose surface materials removed during the grading operation;
  • stockpiling of residue from the clearing operation;
  • stockpiling of snow;
  • pipe welding, trench excavating, and other pipeline installation activities;
  • a travel lane for safely moving crews, equipment, and materials;
  • temporary parking areas, primarily for crew transportation vehicles and equipment servicing and maintenance vehicles; and
  • emergency shelters.

The Proponents initially considered using some of the existing Enbridge Pipelines (NW) Inc. right of way to reduce the new proposed right of way footprint. However, the much larger pipeline proposed for the Mackenzie Valley Pipeline is not as flexible and, therefore, could not always parallel the same route as the existing pipeline. The proposed route does parallel the existing

Figure 5-2 Typical land requirements at an open-cut watercourse crossing

Figure 5-2 Typical land requirements at an open-cut watercourse crossing

right of way in many locations, but the Proponents plan to generally maintain an undisturbed 20 to 100-metre wide buffer of native vegetation between the cleared portions of the two right of ways to reduce the potential for soil thaw interaction. In special cases, such as limited construction areas, the two right of ways may be adjacent to each other.

The Joint Review Panel accepted that the proposed widths of the various sections of the right of way are necessary and appropriate for safe and efficient construction. The Joint Review Panel further noted that it heard no evidence that would justify any widening of the right of way sections.

 

On the record

Narrowing the right of way

To enhance slope stability and reduce the need for reclamation, the Proponents stated that they would consider right of way widths narrower than the typical 50 metre and 40 metre widths at steeper slopes, such as at approaches to watercourse crossings. The Proponents stated that these reduced right of way widths would require additional clearing and temporary off-right of way access routes, known as shoo-flies, to safely move construction equipment. Therefore, the Proponents submitted, narrowing the right of way might not reduce the total amount of cleared land. The Proponents also stated that placing the gas and natural gas liquids pipelines within the same right of way along the proposed route from the Inuvik Area Facility to Norman Wells, was done with the intention of minimizing environmental impact.

Views of the Board

We find that, considering its nature and setting, the amount of land proposed to be required is reasonable and justified for safe and efficient construction of the Mackenzie Gas Project.

We recognize that 29 percent of the total length of the Mackenzie Gas Project and 44 percent of the proposed Mackenzie Valley Pipeline route pass through the Dehcho Region, where there is concern about the proposed width of the pipeline right of way. We note that the Proponents have identified lands in their permanent right of way that may not be needed for the long-term operation of the Mackenzie Valley Pipeline, namely the trencher travel lane and lighting lane as indicated in Figure 5-1. We expect the Proponents to give further consideration to opportunities for minimizing the width of the permanent right of way and maximizing the long-term reclamation of lands adjacent to the permanent right of way post-construction, as long as the safe and efficient operation and maintenance of the Mackenzie Valley Pipeline is not compromised.

5.4 Land use planning
considerations

As land governance and regional planning in the Mackenzie Valley are in varying stages of development, we have considered the extent to which the Proponents have recognized and considered known land use planning objectives in their project design.

The Mackenzie Valley Resource Management Act establishes the land use planning authorities and frameworks for settlement areas in the Mackenzie Valley, including the Gwich'in and Sahtu Settlement Areas. Section 46 of the Mackenzie Valley Resource Management Act requires that federal and territorial bodies having authority to issue authorizations relating to land or water use or the deposit of waste, exercise their authority in accordance with the applicable land use plan in a settlement area.

To date, a land use plan for the Gwich'in Settlement Area has been approved, the Gwich'in Land Use Planning Board is in place, and the land use plan is being implemented. There is a preliminary draft land use plan for the Sahtu Settlement Area, although a land use planning board has not been fully constituted and its current status is unknown. Although a final land claim is not yet in place for the Dehcho Region, the Dehcho Land Use Planning Committee issued an update to its draft land use plan in November 2005. This Committee was established under the Dehcho Interim Measures Agreement, performs most of the roles contemplated for a land use planning

board under the Mackenzie Valley Resource Management Act, and represents the land use planning views of the Dehcho communities and First Nations in the Dehcho Region.

Section 47 of the Mackenzie Valley Resource Management Act requires a planning board to determine whether an activity that has been referred to it or applied for, is in accordance with the land use plan. A referral or application must be made before the issuance of any authorization by the federal body. This obligation would also apply to any further land use plans that may be finalized and approved in accordance with Mackenzie Valley Resource Management Act.

The Proponents have undertaken to determine whether the Mackenzie Gas Project conforms to existing and draft land use plans in the Mackenzie Valley. On their own, and through the Canadian Association of Petroleum Producers, the Proponents held informal discussions with the applicable land use planning boards and committees before filing their land use permit applications. These meetings helped develop an initial appreciation of the degree to which the Mackenzie Gas Project conforms to the Gwich'in Land Use Plan and is consistent with the two unapproved land use plans. As a result, the Proponents filed applications for amendments and exceptions to the Gwich'in Land Use Plan.

The Proponents noted that, although their amendment and exception applications to the Gwich'in Land Use Planning Board were still in progress, they would require these approvals

before deciding to proceed with construction of the proposed pipeline.

The Proponents have had discussions with and provided information to the organizations developing the Sahtu and Dehcho land use plans. The Proponents noted that generally these land use plans recognize and provide for the proposed pipeline through such means as defining a potential pipeline development corridor. The Proponents stated that they are awaiting further progress towards completion of land use plans in the Sahtu and Dehcho regions, and that it was premature to consider any similar applications for amendments to these draft land use plans. However, the meetings with the Sahtu and Dehcho organizations have provided an opportunity to understand and address potential land use plan consistency issues, including conforming to the pipeline corridor interim land withdrawal in the Dehcho Region.

The Proponents stated that they have and will continue to comply with all finalized land use plans. The Proponents also stated that they have addressed and will continue to address land use planning concerns in the Dehcho Region through the Dehcho Land Use Planning Committee until a Dehcho land use planning board is established.

A number of parties submitted that a comprehensive land use planning framework must be finalized and approved in accordance with the Mackenzie Valley Resource Management Act either before the Mackenzie

Gas Project is approved or before construction commences. Some of these submissions, as well as other submissions, included suggestions to complete other land governance and conservation initiatives currently underway in the project region, including the Northwest Territories Protected Areas Strategy and the Dehcho Process (land claim negotiations in the Dehcho Region). Further, arguments made by Joint Review Panel parties referred to the Joint Review Panel recommendations and supported its view that regional land use plans and a network of protected areas are important and possibly the most effective conservation measures for managing cumulative impacts on areas of ecological and cultural importance.

The Yamoga Land Corporation submitted that until there is substantial progress on land use plans in the Sahtu and Dehcho Regions, no project approvals should be granted.

Alternatives North stated that the Mackenzie Valley Resource Management Act is an attempt to put together for the Mackenzie Valley an integrated system of land-use planning and other elements based on the negotiated provisions of constitutionally protected Aboriginal land claim agreements. According to Alternatives North, the problem is that this system has not been fully implemented or funded, and that completing the proper implementation of this system, as set out in many of the Joint Review Panel's recommendations, is required to adequately manage the scale and pace of development

that will come with the Mackenzie Gas Project. Alternatives North argued that, while most of the Joint Review Panel's recommendations are aimed at government, we could and should reinforce the need for this work in any approvals we may issue. Consequently, Alternatives North recommended that, if we are not persuaded to adopt the future-oriented Joint Review Panel recommendations, then we should limit the capacity of the Mackenzie Valley Pipeline to 23.5 Mm³/d (0.83Bcf/d) and make any future expansions subject to full implementation of the Joint Review Panel's recommendations by governments and the Proponents. Alternatives North also submitted that it supports the need for an approved Dehcho Land Use Plan before the Mackenzie Gas Project proceeds, and that the Dehcho Process negotiations should be completed before construction begins.

The Sambaa K'e Dene Band stated that it supports the finalization of a Dehcho land claim agreement, the approval of the Dehcho Land Use Plan, the finalization of protected areas, and establishment of a Dehcho Resource Management Authority as a precondition to construction of the Mackenzie Gas Project.

The Sierra Club of Canada argued that, based on the Joint Review Panel's recommendations, we should set out conditions for the establishment of interim withdrawals to support a network of protected areas and land use plans to incorporate thresholds and limits of acceptable change prior to commencement of construction of the project.

The Dehcho Elders and Harvesters submitted that access to their rights in the Dehcho Territory for the Mackenzie Gas Project should be delayed until the Dehcho Process has been concluded. They stated that conclusion of the Dehcho Process with a final agreement would provide the Dehcho Dene with a clear and necessary authority to ensure that the Mackenzie Gas Project could only proceed in a manner acceptable to them and with their full involvement in all aspects of the project. The Dehcho Elders and Harvesters noted that the draft Dehcho Land Use Plan was ratified by the Dehcho First Nations in 2006, but that the governments of Canada and the Northwest Territories have yet to adopt this plan. They argued that they cannot support the Mackenzie Gas Project approval without a Dehcho Land Use Plan in place to protect their rights and their sovereignty. They stated that the Dehcho Process and the Dehcho Land Use Plan need to be resolved before the Mackenzie Gas Project can be allowed to proceed to construction.

The Dehcho First Nations also maintained the position that the Dehcho Process must be concluded and that the final Dehcho Land Use Plan be in place as soon as possible, and at least before the Mackenzie Gas Project proceeds to construction, as development needs to occur in an orderly fashion with the appropriate and necessary land governance and planning structures in place. The Dehcho First Nations argued that, if the Dehcho Land Use Plan had already been implemented, many of the Dehcho's concerns could have been eliminated.

They maintain that having a legally-binding agreement and land use plan in place are the only affordable and secure ways in which Dehcho interests in relation to the Mackenzie Gas Project can be represented and protected.

Canadian Parks and Wilderness Society argued that the National Energy Board, as the primary decision maker for the Mackenzie Gas Project, should consider that as a condition of construction, existing initiatives such as the Protected Areas Strategy be implemented ahead of construction. Understanding that these initiatives are outside of the National Energy Board's legal authority, Canadian Parks and Wilderness Society submitted that we could do this by acknowledging these matters in our certificate conditions as in the best interests of sustainability and construction of the pipeline. Then the National Energy Board could have the ability to monitor and comment on the status of governments' compliance to the Joint Review Panel Report recommendations, to provide encouragement for fulfilling timelines and expectations set out for conservation and community initiatives.

World Wildlife Fund Canada submitted that chief among its concerns was Joint Review Panel recommendation 11-3, which is to complete implementation of the Mackenzie Valley Five-Year Action Plan of the Northwest Territories Protected Areas Strategy prior to commencement of Mackenzie Gas Project construction. World Wildlife Fund Canada recommended that we clearly and publicly state that the Mackenzie

Gas Project would only be in the public interest if all of the Joint Review Panel's recommendations are implemented, even if recommendations such as 11-3 are not within the National Energy Board's authority to implement.

In its report, the Joint Review Panel accepted that taken in isolation, the impacts from the Mackenzie Gas Project on existing and proposed protected areas and on the establishment of a network of protected areas in the Mackenzie Valley would not likely be significantly adverse. The Joint Review Panel stated that it was satisfied that, if the Proponents fulfill their commitments and follow through with a process of ongoing consultation with communities, wildlife management boards, regulators, and Northwest Territories Protected Area Strategy committees during engineering design and refinement, the quantum of those lands that remain undisturbed would still allow for the conditions of land use and conservation plans to be met and the objectives of the Northwest Territories Protected Areas Strategy to be largely realized. The Joint Review Panel noted that the Mackenzie Gas Project would introduce some new development constraints on the conditions for managing conservation and development in the existing and proposed land use and conservation plans. However, this was anticipated to some extent in these plans through identification and reservation of an infrastructure corridor for the pipeline, through interim withdrawal of selected conservation lands, and through procedural arrangements established to accommodate this type and level of development.

The Joint Review Panel also noted its view that, in the absence of a completed settlement agreement under the Dehcho Process or an approved land use plan for the Dehcho Region, Aboriginal interests in managing and protecting traditional and non-traditional land uses and land access in the Dehcho Region may not be fully realized. The Joint Review Panel was of the view that the Dehcho Process land claim negotiations between the Dehcho First Nations and the governments of Canada and the Northwest Territories should continue to be of the highest priority to all negotiating parties. However, the Joint Review Panel agrees with the governments of Canada and the Northwest Territories that final approval and implementation of a land claim agreement with the Dehcho First Nations should not be a condition precedent for approval of the Mackenzie Gas Project.

Views of the Board

We are satisfied that the Proponents have provided reasonable assurance that they are working with the appropriate authorities to ensure that the Mackenzie Gas Project conforms to the land use plans approved or drafted pursuant to the Mackenzie Valley Resource Management Act. These plans generally contemplate infrastructure development along the proposed general route of the Mackenzie Valley Pipeline.

We note that the Dehcho land claim process continues and an interim land use plan is in place for the region. Concerns from Dehcho communities also led to a number of route and design changes that now form part of the commitments the National Energy Board will enforce. A number of our conditions respond to Dehcho concerns such as participation in environmental monitoring and wildlife management.

5.5 Land acquisition

5.5.1 Land ownership in
the Mackenzie Gas Project area

The Proponents provided the following breakdown of lands crossed by the proposed Mackenzie Gas Project:

  • 174.2 kilometres crosses the Inuvialuit Settlement Region, of which 23.4 kilometres (13 percent) is privately owned Aboriginal lands (Inuvialuit private lands) and the remainder is federal Crown land;
  • 181.2 kilometres crosses the Gwich'in Settlement Area, of which 106.2 kilometres (59 percent) is privately owned Aboriginal lands (Gwich'in private lands) and the remainder is federal Crown land;
  • 231.1 kilometres crosses the K'ahsho Got'ine District of the Sahtu Settlement Area, of which 118.9 kilometres (51 percent) is privately owned Aboriginal lands (Sahtu private lands) and the remainder is mostly federal Crown land and some Government of the Northwest Territories land;
  • 270.4 kilometres crosses the Tulita District of the Sahtu Settlement Area, of which 128.3 kilometres (47 percent) is privately owned Aboriginal lands (Sahtu private lands) and the remainder is mostly federal Crown land and some Government of the Northwest Territories land;
  • 528 kilometres crosses the Dehcho Region, of which 10.4 kilometres (2 percent) is privately owned Aboriginal land (Sahtu private land) and the remainder is federal Crown land administered by Indian and Northern Affairs Canada pursuant to the Dehcho Interim Measures Agreement; and
  • 0.05 kilometres crosses provincial Crown land in Alberta.

The Mackenzie Gas Project's proposed route crosses five major land regions: the Inuvialuit Settlement Region; the Gwich'in Settlement Area; the Sahtu Settlement Area; the Dehcho Region; and Alberta (see Figure 1-7). Land ownership and administration differ in each region. Generally, there are six different types of landowners with which the Proponents would have to acquire land rights. These landowners include:

  • Indian and Northern Affairs Canada, which issues tenure on federal Crown land;
  • the Government of the Northwest Territories, which issues tenure on Commissioner's and municipal land (both of which comprise about three percent of all land in the Northwest Territories and are concentrated within or near municipal boundaries;
  • the Inuvialuit Land Administration, which provides tenure on privately owned lands acquired through the Inuvialuit Final Agreement, 1984;
  • the Gwich'in Tribal Council, which provides tenure on privately owned Aboriginal lands acquired through the Gwich'in Comprehensive Land Claim Agreement, 1992;
  • District Land Corporations in the Sahtu Settlement Area, which provide tenure on privately owned Aboriginal lands acquired through the Sahtu Dene and Métis Comprehensive Land Claim Agreement, 1993; and
  • the Government of Alberta, which allocates tenure on provincial Crown lands.

With the exception of those components in the Inuvialuit Settlement Region and the small Alberta component, the proposed Mackenzie Gas Project route is within the area subject to the Mackenzie Valley Resource Management Act. Land and water boards have been established pursuant to the Mackenzie Valley Resource Management Act. These boards issue land use permits that provide land tenure on Crown lands for terms of less than five years. They also issue land use permits on privately owned Aboriginal lands once access agreements have been reached with the respective Aboriginal authority. Within the area subject to the Mackenzie Valley Resource Management Act, both the necessary land tenure from the landowner and a land use permit from the appropriate land and water board must be obtained. The land use permit authorizes the proposed activity, while the land tenure authorizes access to and occupation of the land requested to carry out that activity.

5.5.2 The Proponents'
land acquisition approach

The type of land ownership along the route of the project, particularly the distinction between Crown land and privately owned Aboriginal land, is an important factor in the Proponents' approach to land acquisition for this project.

The Proponents submitted that long-term land rights would be required for the proposed Mackenzie Gas Project pipelines and related facilities. Short-term land rights under several types of land tenure instruments would be required for temporary workspace such as crossing areas and camp sites during construction.

On federal and provincial Crown lands and the Government of the Northwest Territories lands, the Proponents would apply for easements, leases, licences, and permits depending on the need for exclusive or non-exclusive access to the right of way and related facilities. Temporary workspace would be authorized by land use permits, although other surface tenure may also be required for temporary land use. The Proponents noted that easement and right of way agreements are typically used to obtain surface access rights for a pipeline where exclusive possession of the land is not required, and where the surface of the land is reclaimed. However surface leases are typically used to obtain sites for surface facilities such as compressor and heater stations, where a tenure holder requires the right for exclusive, ongoing use of the land surface.

Did you know?

Land tenure instruments

Easement - an easement agreement is the most common agreement that a pipeline company acquires for the right to use the land for a pipeline. Simply put, it is the right that a pipeline company has over the land of another, usually confined to that strip of land which forms the pipeline right of way. The landowner still owns the land, but the pipeline company has acquired certain rights over that land to build and operate a pipeline. In this way, the easement is a written contract that sets out the rights of the company and the rights of the landowner. The easement agreement usually covers things such as: the land area subject to the easement; the size and location of the right of way; protection from liabilities; how the land will be used; terms of payment; legal responsibilities of the pipeline company and the landowner; and any land use restrictions. A pipeline company may offer the landowner a standard easement, but its final form and contents are a matter of negotiation. If the landowner sells its land, any future landowners must also follow the terms and conditions of the easement agreement. The land remains subject to the easement agreement until the pipeline company officially removes it.

Lease - a lease agreement is an agreement whereby the landowner gives the right of possession to another (such as a pipeline company) for a specific period of time and for a specific amount of rent. Similar to easements, the landowner still owns the land, but the pipeline company has acquired the right to occupy and use the land for a certain purpose. The holder of a lease has certain well defined rights which may be enforceable without the agreement of the landowner. Leases are usually acquired by pipeline companies for areas where they need secure, enforceable rights of exclusive use for a long period of time, such as for building and operating surface facilities like compressor stations and heater stations.

Licence - a licence has different meanings, depending on the situation. For instance, in the Mackenzie Valley, a licence may refer to an authorization for the use of waters or the deposit of waste, or both, issued by a board under the Northwest Territories Waters Act. Generally, for land tenure purposes, a licence (typically referred to as

a licence of occupation) is permission to do something on the land owned by somebody else that, without such permission, would be unlawful. Unlike a lease, a licence is not an estate or an interest in the land and therefore does not carry its own title and cannot be bought or sold like other property. The holder of a licence has fewer legal rights than the holder of a lease. The use of the licence must be limited to the activity or activities authorized by the licence, otherwise the licence holder may be treated as a trespasser. Unlike an easement, a licence can be revoked at will by the landowner. A pipeline company may choose to obtain a licence where it needs to access and use a parcel of land for a shorter period of time and does not need extra measures to maintain exclusive use of that land. An example could be the need to travel on a private road.

Permit - generally, a land use permit is permission granted by the landowner to carry out specific works or activities on a specific area of land for a limited period of time. In the Mackenzie Valley, land use permits are issued by land and water boards for temporary authorization (typically two to five years) of certain activities to be carried out on a certain area of land. In the Inuvialuit Settlement Region, land use permits are issued by the Inuvialuit Land Administration on Inuvialuit private lands and by Indian and Northern Affairs Canada on federal Crown land. These land use permits allow for certain uses of the land but do not convey the permission to enter and occupy that land. A pipeline company must get permission from the landowner before it can carry out its authorized activity on that land as provided for in the land use permit.

Access Agreement - in the Northwest Territories, an access agreement outlines the terms and conditions, including financial arrangements, for access on or through land with Aboriginal interest. Access agreements may also include details on benefits. In some areas, such as the Gwich'in and Sahtu Settlement Areas, these agreements are legislated under land claims, and in other areas, such as the Dehcho Region, they are voluntary agreements between groups. In the Mackenzie Valley, access agreements also constitute permission from the Aboriginal landowner or group to apply to the appropriate land and water board for a permit or licence. Such permission is required before these land and water boards will consider a permit or licence application.

Land tenure agreements would also be required for those privately owned Aboriginal lands crossed by the proposed Mackenzie Gas Project route and facilities. These agreements would either be site-specific authorizations or an initial agreement reserving the right to access lands and establishing a framework within which site-specific authorizations or agreements are obtained.

Access agreements

The Proponents recognized that securing access to privately owned Aboriginal lands, as well as unsettled lands in the Dehcho Region, requires a contract between itself and the landowner called an access agreement.

The Proponents noted that while there are fewer private landowners along the proposed Mackenzie Gas Project route than in other jurisdictions, there is also less process assurance associated with securing site-specific access agreements over privately owned Aboriginal lands. Access to the surface rights legislation, boards and processes needed to secure site-specific access agreements on private land does not exist in the Northwest Territories. Land claim agreements provide for surface rights legislation, but it has not been acted upon.

The Proponents stated that they are negotiating access agreements with all the Aboriginal landowners recognized in land claim agreements, in addition to the Dehcho First Nations, for the areas crossed by the proposed route. The Proponents noted that the Inuvialuit, Gwich'in, and Sahtu Dene and Métis land claim agree

ments provide for private land ownership by the Inuvialuit, Gwich'in, and Sahtu, respectively. Under the Dehcho Process, land ownership is a matter between the Dehcho First Nations and the Government of Canada. The Proponents submitted that they will comply with, and respect, applicable agreements reached between the Dehcho and the Government of Canada through the Dehcho Process, as well as applicable land claims agreements, treaties, and legislation.

The Proponents noted that typically they would strike an initial agreement with an Aboriginal private landowner, such as a district land corporation, that provides a basis for securing a specific right of way, once its location has been finalized and confirmed.

Issues raised by parties during the proceeding focused on the Proponents' approach for acquiring access agreements on Aboriginal lands. Some parties requested information on or raised concerns regarding the status of access agreement negotiations while others submitted that the Proponents should sign access agreements with the relevant Aboriginal groups before the project is approved. For example:

  • The K'ahsho Got'ine District Lands Corporation asked the Proponents how many Aboriginal landowners had signed access agreements and why they chose to file their project application before access agreements were in place. The Corporation submitted that the Proponents are not prepared to modify their standard form access agreements or
  • consider alternative ideas. The K'ahsho Got'ine District Lands Corporation contended that the Proponents have decided to gain access to K'ahsho Got'ine District Lands Corporation's lands through expropriation rather than expending the effort necessary to build a trusting relationship or engage in meaningful two-way dialogue with Aboriginal landowners.
  • The Dehgah Alliance Society asked the Proponents if they would continue into the project design and construction phase in the Dehcho Region if they had not signed an access agreement with the Dehcho communities. The Dehgah Alliance Society submitted that the Proponents should be required to conclude an access agreement, including access fees, with the Dehcho First Nations before the National Energy Board approves the project.
  • The Sambaa K'e Dene Band argued that neither the Proponents nor Canada has respected the Sambaa K'e Dene Band's right and its stated preference to independently negotiate an area-specific impact benefit agreement with the Proponents. The Sambaa K'e Dene Band submitted that if the Proponents continue to refuse its request to enter into negotiations, then Canada must address section 35 accommodation matters relating to impacts to traditional land use before the issuance of a certificate for the Mackenzie Gas Project, so we can be assured that the project will have unchallenged access to the land required for the project.
  • The Dehcho Elders and Harvesters submitted that Dehcho corridor communities must be covered by an access agreement granting permission to use Dehcho traditional lands before the Mackenzie Gas Project is allowed to proceed.
  • The Liidlii Kue First Nation stated that we must require as a condition of approval that the Proponents enter into a benefits agreement with Liidlii Kue First Nation and the Dehcho First Nations that meets the needs of all of them fairly.
  • The Dehcho First Nations stated that access agreements and benefits agreements are required before the final pipeline route is approved, and that permission for the Proponents to access Dehcho traditional lands will only be granted through an access agreement.

The Proponents stated that they have made some progress on concluding access agreements over these privately owned Aboriginal lands, but that the work is not complete. Access agreements have been executed with the Gwich'in Land Administration and the Tulita District Land Corporation for part of the Sahtu Settlement Area. These two agreements include processes under which site-specific access could be granted. However there is still some process associated with securing site-specific access if and when the Proponents finalize and receive regulatory approval for its pipeline right of way and related facility site locations. The Proponents stated that they are working towards concluding an access agreement

with the K'ahsho Got'ine District, and are still in negotiations with the Dehcho First Nations to obtain a similar access agreement for the Dehcho Region.

The Proponents indicated that negotiating access agreements is intended to precede the start of construction, and that site-specific access agreements need to be concluded with all private Aboriginal landowners in order to satisfy regulatory requirements for issuing land use permits. The Proponents stated that they have offered, and continue to offer, to negotiate mutually acceptable access agreements for the Dehcho Region and the K'ahsho Got'ine District in the Sahtu Settlement Area.

The Proponents also submitted that concluding site-specific access agreements with all private Aboriginal landowners would require more time after project approval, if it is granted, than is the case for other pipeline projects because of greater complexity and less certainty in process and timing. The Proponents stated that even if they receive a certificate from us, they must still apply for, and receive, National Energy Board approval for the detailed route of the Mackenzie Valley Pipeline right of way within the identified one-kilometre wide corridor before they can conclude site-specific access agreements with Aboriginal landowners.

The Proponents stated that, for the Mackenzie Valley Pipeline, notices pursuant to subsection 87(1) of the National Energy Board Act would be served on all owners of lands where agreements are required along with copies of

any National Energy Board bulletins and guides that outline the rights and remedies available to landowners. The Proponents also submitted that there is no standard access or tenure agreement specific to the Mackenzie Valley Pipeline, and the terms, conditions, and compensation are to be negotiated. These agreements would include the provisions required by subsection 86(2) of the National Energy Board Actand applicable land claim agreements.

The Proponents submitted that, as of April 2010, benefit and access agreements have been negotiated in all regions except the Dehcho Region.

Views of the Board

We find the Proponents' land acquisition approach to be appropriate, considering the special circumstances of land ownership and administration in the Mackenzie Valley. We note the Proponents' commitment to negotiate access agreements with all private Aboriginal landowners. Further, we recognize the Proponents' commitment to enter into access negotiations with the Dehcho First Nations.

We recognize the Proponents' efforts to comply with the land acquisition requirements of the National Energy Board Act. We are of the view that the Proponents have demonstrated that they will be respectful of landowner rights and concerns.