Filing Manual – Guide V – Right-of-Entry Application (NEB Act s.104)
Where a company does not acquire land required for the pipeline through negotiations with the landowner, it may apply to the Board for a right-of-entry order pursuant to the requirements of section 104 of the NEB Act and section 55 of the Rules.
The application contains documentation with respect to the right-of-entry process. The documentation addresses all matters related to the request for an immediate right-of-entry order demonstrating that landowners and others persons have been notified and their rights have been protected.
Section 104 of the NEB Act states:
104. (1) Subject to subsection (2), the Board may, on application in writing by a company, if the Board considers it proper to do so, issue an order to the company granting it an immediate right to enter any lands on such terms and conditions, if any, as the Board may specify in the order.
(2) An order under subsection (1) shall not be issued in respect of any lands unless the company making the application for the order satisfies the Board that the owner of the lands has, not less than thirty days and not more than sixty days prior to the date of the application, been served with a notice setting out
(a) the date the company intends to make its application to the Board under subsection (1);
(b) the date the company wishes to enter the lands;
(c) the address of the Board to which any objection in writing that the owner might wish to make concerning the issuance of the order may be sent; and
(d) a description of the right of the owner to an advance of compensation under section 105 if the order is issued and the amount of the advance that the company is prepared to make.
Section 55 of the Rules states:
55(1) To apply for a right of entry order under section 104 of the Act, a company shall, after serving the owner of the lands with the notice described in subsection 104(2) of the Act, file an application with the Board not less than 30 days and not more than 60 days after the date of service of the notice on the owner.
(2) The application must be served on the owner of the lands on the same day that the application is filed with the Board.
(3) The application must contain
(a) a copy of the notice described in subsection 104(2) of the Act;
(b) evidence that the notice has been served on the owner of the lands
(i) not less than 30 days and not more than 60 days prior to filing the application with the Board, and
(ii) in accordance with subsection 8(8) or in any manner ordered by the Board under the National Energy Board Substituted Service Regulations;
(c) a schedule that is proposed to be made part of the order sought and that contains, in a form suitable for depositing, registering, recording or filing against lands in the land registry or land titles office in which land transactions affecting those lands may be deposited, registered, recorded or filed, a description of
(i) the lands in respect of which the order is sought,
(ii) the rights, titles or interests applied for in respect of the lands, and
(iii) any rights, obligations, restrictions or terms and conditions that are proposed to attach
(a) to the rights, titles or interests applied for in respect of the lands,
(b) to any remaining interest or interests, or
(c) to any adjacent lands of the owner;
(d) a current abstract of title to the lands, a certified copy of the certificate of title to the lands or a certified statement of rights registered in the land registers for the lands;
(e) a copy of section 56; and
(f) evidence that the application, including the information set out in sections (a) to (e), has been served on the owner of the lands.
In addition to the requirements of section 104 of the NEB Act and section 55 of the Rules, applications shall also include the following information.
1. A summary of the land negotiation process conducted between the applicant and the owner of the lands for which a right-of-entry order is sought, including the dates of meetings held between the applicant and the owner of the lands;
2. The date of service of notice on the landowner pursuant to subsection 87(1) of the NEB Act;
3. If applicable, the date of service of notice on the landowner pursuant to section 34 of the NEB Act; and
4. A discussion of outstanding issues and the reason(s) that a voluntary agreement could not be reached.
Pursuant to section 56 of the Rules, the landowner may file a written objection with the Board any time after receipt of the notice up to 10 days after the date the company files the right-of-entry application.
In the event the Board approves the right-of-entry order, the order must be deposited in the appropriate land registry or land titles office, pursuant to section 106 of the NEB Act, prior to the company exercising its rights as granted by the right-of-entry order.
The date of service of notice on the landowner pursuant to section 34 of the Act will provide the Board with confirmation that, where the lands that are the subject of the right-of-entry application are required for the detailed route of a project, the landowner was served notice of the filing of the PPBoRs for the detailed route.
File the completed application. Applicants are encouraged to include the completed relevant checklists from Appendix I.
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