Filing Manual – Guide V – Right-of-Entry Application (CER Act s. 324)
Where a company does not acquire land required for an approved pipeline through negotiations with the landowner, it may apply to the CER for a right-of-entry order pursuant to section 324 of the CER Act and the Rules.
Guide V of the Filing Manual provides guidance regarding the information that the company must give to the landowner, under section 324 of the CER Act, prior to applying for a right-of-entry order.
Guide V further outlines the information required in an application to the CER for a right-of-entry order, as established in section 55 of the Rules. As set out in the guidance below, the Rules state that the filing to the CER must indicate, among other things, that the notification to the landowner contained all the information as required under section 324 of the CER Act.
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 other persons have been notified and their rights have been protected.
Section 324 of the CER Act states:
324 (1) Subject to subsection 317(1), if the Commission considers it appropriate to do so, the Commission may, by order, on application to the Regulator in writing by a company, grant to the company an immediate right to enter any lands on any conditions specified by the Commission in the order.
(2) The Commission is not authorized to make an order under subsection (1) unless the Commission is satisfied that the owner of the lands in question has, not less than 30 days and not more than 60 days before the date of the application, been served with a notice setting out:
- (a) the purpose of the right of entry referred to in subsection (1);
- (b) the date on which the company intends to make its application to the Regulator under subsection (1);
- (c) the date on which the company intends to enter the lands and the period during which the company intends to have access to the lands;
- (d) the address of the Regulator to which any objection in writing that the owner may make concerning the issuance of the order may be sent; and
- (e) a description of the right of the owner to an advance of compensation under section 325 if the order is issued and the amount of the advance that the company is prepared to make.
In accordance with the CER Act and the Rules, in order to apply for a right-of-entry order under section 324 of the Act, a company shall:
(1) File an application with the CER not less than 30 days and not more than 60 days after the date of service of the notice on the owner of the lands, as set out in subsection 324(2) of the Act.
(2) The application must be served on the owner of the lands on the same day that the application is filed with the CER.
(3) The application must contain:
- a copy of the notice described in subsection 324(2) of the Act;
- evidence that the notice has been served on the owner of the lands not less than 30 days and not more than 60 days prior to filing the application with the CER, and in accordance with subsection 8(8) of the Rules, or in any manner ordered by the Commission;
- a schedule that is proposed to be made part of the order sought and that contains, in a form suitable for depositing or registering in the appropriate land registry or land titles office, a description of
- the lands in respect of which the order is sought,
- the rights, titles or interests applied for in respect of the lands, and
- any rights, obligations, restrictions or terms and conditions that are proposed to attach to:
- the rights, titles or interests applied for in respect of the lands,
- any remaining interest or interests, or
- any adjacent lands of the owner;
- 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 with the appropriate land registrar;
- a copy of the relevant provisions of the Rules, outlining how an objection may be made to the CER; and
- 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 324 of the CER Act and 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 322(1) of the CER Act;
3. If applicable, the date of service of notice on the landowner pursuant to section 201 of the CER Act; and
4. A discussion of outstanding issues and the reason(s) that a voluntary agreement could not be reached.
Pursuant to the Rules, the landowner may file a written objection with the CER 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 Commission approves the right-of-entry order, the order must be deposited in the appropriate land registry or land titles office, pursuant to section 326 of the CER Act.
The date of service of notice on the landowner pursuant to section 201 of the CER Act will provide the CER 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 plan, profile and book of reference for the detailed route.
File the completed application. Applicants are encouraged to include the completed relevant checklists from Appendix 1.
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