LMG News – June 2022

Welcome to the e-newsletter for all members of the Land Matters Group (LMG)

June 2022

Figure 1 – Woman leaning against a fence.

Table of Content

• The LMG in a nutshell
• Update from the Editor’s Corner
• In the News!
• Did you know… Process Advisors can help you
• LMG Spotlight – Graeme Wright
• Emergency Response to BC Floods
• A Pipeline’s Detailed Route and You
• The Detailed Route Process – The Value of Being Heard
• Clubroot Management
• How Deep is that Pipeline?

Update from the Editor’s Corner

On March 1^st, 2022, the Land Matters Group Advisory Committee (LMG AC) held its quarterly meeting to discuss several topics, including the creation of the Property Damage Sub-committee. This novel approach is noteworthy because it will enable the advisory committee to make advances in addressing the first of the three priority issues identified in its work plan.

The Property Damage Sub-committee has been mandated to consider all aspects related to damages incurred by landowners as an outcome of activities and operations led by energy companies on private property. The sub-committee’s representation includes a cross-section of landowner associations and advocacy groups, as well as industry delegates, and its work will be co-chaired by a CER staff and a landowner representative.

In addition to reviewing information currently available in different areas of the website, the sub-committee members will draft new content that will be presented from the landowner’s perspective. Landowners will also benefit from being able to find all this information contained in a single location on the website.

Essentially, when a landowner becomes aware of a situation where there is evidence of damage caused by company activity on the property, the resources to understand what needs to be done and how it should be done will be more readily available in a single area on the CER website.

As the sub-committee’s work progresses, the LMG AC will have the chance to review the new content, including how it will be presented prior to the information being made publicly available.

Véronique Duhamel
Director of Engagement

LMG Spotlight – Graeme Wright

Author: Sandra Falconi

LMG Spotlight provides readers with more insight about the people who speak on their behalf as members of the Land Matters Group Advisory Committee (LMG AC).

Graeme Wright began his career as a land agent in 2007, subsequently joining TC Energy in 2013. He currently leads a team of land professionals supporting pipeline expansion projects in Canada, with a focus on building strong, long-term relationships with landowners. Much of Graeme’s time at TC Energy is spent sharing information and narrowing the information gap between landowners, TC Energy, and the Canada Energy Regulator (CER), specifically regarding processes and regulations. Graeme and his team work to ensure all landowners are treated fairly through honesty, respect and transparency.

Graeme joined the LMG AC two and a half years ago and brings deep expertise from extensive on-the-job experience and formal training. One of Graeme’s strongest attributes is the ability to develop trust-based relationships built on mutual respect, active listening, and continuous learning and adapting.

"Over the past 15  years in the energy sector, I’ve had the privilege of working with thousands of landowners, learning from them and gaining new perspectives,” says Graeme. “No two landowners have the same experience with industry, nor do they share the exact same concerns, but there are many common themes. By truly listening, it’s really amazing how much we can learn and how little difference there frequently is between what industry, landowners and regulators alike want to achieve".

One of the opportunities Graeme sees is continuing to increase accessibility to the CER as a trusted source of information and support to landowners. He is encouraged by the progress industry has made to improve and build positive, lasting relationships with landowners through ever-increasing transparency.

Graeme believes almost anything can be achieved through open, honest and respectful discussion. “One of the things I enjoy most about my role is making connections, sharing knowledge, as well as creating and maintaining multi-generational legacy relationships with landowners. It’s rewarding to hear ‘my mom and dad trusted TC Energy, so I will too’.”

Graeme is inspired by other LMG committee members who, like him, are committed to engaging landowners through meaningful dialogue and a commitment to mutually beneficial outcomes for all involved.

Graeme lives in Calgary, and when not immersed in his work, he enjoys time with family and trying to keep up with his three children.

Emergency Response to BC Floods

Author: Deena Braun

Last year the flood events in southern British Columbia prompted a state of emergency for the province and impacted the lives of thousands of Canadians. The extensive flooding also affected pipeline rights-of-way in certain areas, particularly areas south and west of Merritt, BC. As a precautionary measure, companies with impacted facilities conducted shutdowns to assess their infrastructure.

In several cases, pipelines had become exposed, or were at risk of becoming exposed from the force of the floodwater. There was also evidence that some rivers formed completely new channels, and in other cases riverbanks eroded, and channels moved or shifted towards the infrastructure.  Fortunately, even though pipelines became exposed, there were no leaks or releases detected.

Instream works were quickly underway to address any imminent threats to the integrity of the existing pipelines. Immediate works included diverting flooded waters back to the main channel of the river, removing log jams and isolating the exposed pipelines to allow for assessment. Installing diversion berms and armouring the watercourse banks provided protection to the pipeline as well as surrounding property in some cases.

With major roads and highways being washed out and inaccessible, temporary bridges were installed to provide access to the right-of-way and in some cases, it also provided access for the public. Post-emergency follow-up is ongoing as companies continue to address flood impacts and protect facilities. The Canada Energy Regulator (CER) is continuing to oversee this work via compliance verification meetings, and operations and maintenance activity oversight.

What is the role of the CER when natural disasters occur?

The CER verifies that regulated companies are taking all reasonable steps to protect the public, property, and the environment. These companies are responsible for anticipating, preventing, managing, and mitigating incidents of any size or duration.

The CER will respond to oversee the company’s actions with the ability to enforce compliance with all regulations that apply. During an emergency, the CER maintains an Emergency Operations Centre (EOC) in Calgary to coordinate its response and is responsible for informing other federal departments and the public. The CER will not allow a regulated pipeline to restart unless it is safe to do so.

In the flood response area, the CER worked alongside pipeline company staff to ensure the risks from the pipelines being exposed were mitigated in a manner that protects people and the environment. The CER’s emergency response crew consisted of Inspection Officers from the Environmental Protection, Safety and Integrity teams, as well as members from the Emergency Management team. Indigenous Monitors representing the Indigenous Advisory and Monitoring Committee also attended to incorporate Indigenous interests and concerns. During this inspection, team members carried out the following:

• Observed, monitored, and assessed the overall effectiveness of the company’s emergency response.
• Confirmed the company was following their developed plans and procedures, including a Flood Response Environmental Protection Program.
• Inspected and examined the integrity of the pipeline to verify repairs are completed to specifications.
• Verified companies have obtained the approvals and permits for instream work and associated activities from the BC Oil and Gas Commission, the Government of Canada Department of Fisheries and Oceans, and provincial regulators.
• Ensured the site-specific hydrotechnical engineering designs were developed and followed, and environmental general best practices were met where possible.
• Confirmed companies communicated with stakeholders as well as landowners to address any concerns they had.

A Pipeline’s Detailed Route and You

Author: Elaine Howe

After getting approval from the Canada Energy Regulator (CER) for a pipeline and its general corridor, the company must seek approval for its detailed route. This is done by filing the Plan, Profile and Book of Reference (or PPBoR) sheets, which are detailed drawings and tables showing among other things, the precise location of the pipeline’s right-of-way on each parcel of land, including the owners and occupants of those lands.

Each PPBoR sheet requires the CER’s approval before construction can begin on the lands referenced in that sheet. The CER may approve these sheets at different times, meaning that the company may start construction in certain areas or properties, while in others, it must wait.

When the company applies for the pipeline’s detailed route, it must notify the occupants of the lands and place similar notices in publications along the route. Notices include a sketch or drawing of the property showing the proposed location of the pipeline.

As set out in the CER Act, detailed route hearings only focus on three issues:

1. The best possible detailed route;
2. The most appropriate construction methods; and
3. The most appropriate construction timeframe.

Detailed route hearings can’t reconsider issues that were examined during the original public hearing, such as the need for the project and overall pipeline design, or the project’s broader environmental or socio-economic impacts. They also do not consider landowner compensation matters (e.g., money to be paid to a landowner for the use of or damage to their lands).

The date that a notice is received is important; the deadline to file an SOO is   days from the date of receiving notice from the company.

How do I make my objections known? What are the deadlines?

Owners and users of lands, Indigenous peoples who may be impacted by a pipeline’s detailed route can file a written statement of objection –often referred to as a Statement of Opposition (or SOO), to request a Detailed Route Hearing.

The date that a notice is received is important; the deadline to file an SOO is 30 days from the date of receiving notice from the company.

What happens if no one files an objection to the Detailed Route/PPBoR within 30 days?

If the 30-day notification period passes without opposition to a particular PPBoR sheet, the CER may issue an Order approving that sheet without holding any further regulatory processes or hearings.

I’ve been granted a Detailed Route hearing – now what?

If your SOO is accepted, and a Detailed Route Hearing is set down, the Commission will release a Hearing Order outlining the process steps and deadlines. The timeline for detailed route hearings can vary and each hearing can be expected to take several months from the time it was first announced until the time that the CER issues its decision.

Can I propose another route?

Landowners and Indigenous peoples may suggest an alternate route to the company’s proposal. In its decision, the CER cannot approve a suggested alternate route, but it can deny the company’s proposed route if it is not persuaded that the location is optimal. If that happens, the company must restart the detailed route process and file a new PPBoR. Landowners and Indigenous peoples can also suggest mitigation measures or conditions of approval that they feel may lessen or resolve their concerns, if implemented.

Do I need a lawyer or experts to participate?

Hiring a lawyer is not required, though some people may feel more comfortable having a person speak on their behalf. Like with any other CER regulatory process, Process Advisors are available to help explain the process steps and answer any process related questions.

What happens once the Detailed Route Hearing is over?

After considering all the evidence presented during the Detailed Route Hearing, the Commission may:

• approve the company's proposed detailed route (with or without conditions)
• reject all or part of the company's proposed detailed route
• require more information from the participants before deciding

If approved, the company files the approved PPBoR with the appropriate provincial or territorial land titles or registry offices. In the event that the PPBoR are not approved, the company must then start the process over and file a new series of documents.

The Detailed Route Process – The Value of Being Heard

Author: Anne-Marie Erickson

On September 22, 2021, the Commission of the Canada Energy Regulator (CER) issued the final order approving all 1,147 kilometres of the Trans Mountain Expansion Project’s (Trans Mountain) detailed route. This hearing process was unlike any other because it had to be modified to mitigate concerns related to the COVID-19 pandemic and in spite of all the changes, it was still successful.

Process Changes due to the COVID-19 Pandemic

The pandemic forced the CER to take steps to protect the health of those involved in the proceedings. For example, the Commission extended certain filing deadlines and replaced oral cross-examinations with rounds of written questions and answers. Instead of site visits, the parties were invited to file photographs or videos along with their written evidence.

The Commission asked Indigenous communities to identify alternative means by which Indigenous knowledge could be communicated to supplement what had already been provided in written evidence. The shared information and knowledge were meaningful because it informed the Commission’s decision-making process within traditional territories.

Not all hearings turn out the way all parties would expect, but in some cases such as the two described below, the outcomes can be measured on the strength of the negotiated compromises.

Figure 8 – A discussion is underway involving data that is visible on electronic devices.

Landowner’s Objection to Detailed Route Persuades the Commission

In one hearing, the Commission had to decide the best detailed route and the most appropriate timing to undertake the pipeline’s construction in this specific area.

In the statement of objection, the landowner expressed concerns with the pipeline’s proposed location and suggested an alternate route that was less likely to impact the use of the lands and any proposed future development. In response, the company stated that its proposed route was preferred as it more closely matched its routing criteria.

In its decision, the Commission acknowledged that the landowner had gone to extraordinary lengths to demonstrate the feasibility of its preferred alternate route. It also stated that the company’s argument was not sufficiently compelling to demonstrate how their proposal was the best possible route.

In the end, Trans Mountain came back to the Commission with a new route that was similar to the landowner’s proposal. There were no statements of opposition for the new route, and therefore, it was approved by the Commission.

Negotiations by Parties Results in Resolved Detailed Route Matters

The Semá:th First Nation (Semá:th) hearing included an oral Indigenous knowledge segment during which valuable information was shared. For greater clarity, the Commission asked Trans Mountain several Information Requests relating to their proposed route and methods of construction. The hearing was eventually put in abeyance to allow all parties to further negotiate, which resulted in an agreement over the alternate route and methods of construction. The Semá:th statement of opposition was then withdrawn.

Figure 9 – Construction of the Trans Mountain pipeline in an urban setting.

Clubroot Management

Author: Dylan Adderley

Clubroot is a serious soil-borne disease of cruciferous plants in the family Brassicaceae, which includes canola and certain other crops. Canola is one of the most widely grown crops in Canada, generating about one-quarter of annual farm crop receipts. The total acreage of canola production is approximately 20 million acres annually, primarily in the western provinces of Alberta, Saskatchewan, and Manitoba, with some production in other provinces as well.

The first report of clubroot in a commercial canola field came in 2003 in Alberta, and since then clubroot has been found in most canola growing regions of Canada.

Figure 10 – Vast expanse of canola growing under a sunny blue sky.

The clubroot pathogen readily overwinters in soil and requires a living host to complete its lifecycle. The pathogen has been found to survive in soil for up to 20 years, which is why clubroot is considered such a serious disease. In canola, clubroot causes swelling or galls to form on roots which can ultimately cause premature death of the plant.

Landowners and companies regulated by the Canada Energy Regulator (CER) share a concern about the spread of clubroot. The risk of spread is increased when the soil is disturbed, as studies have shown that most clubroot infestations begin at field access points, which suggests that contaminated equipment and machinery is the most common way that the disease is spread.

The CER recognizes that the impacts to farmers from the spread of clubroot have broad and lasting consequences to individual farmers and to Canadians. At a minimum, the CER expects its regulated companies to follow provincial clubroot management plans and be responsible for taking measures to prevent the disease from being established and minimizing the further spread of clubroot. Depending on risk levels and site-specific conditions, the standard control measures may include:

• establishing wash stations at property boundaries for cleaning equipment;
• conducting pre- and post-construction soil testing for the presence of clubroot;
• removing or stockpiling topsoil where clubroot is present before moving other equipment on-site;
• avoiding equipment traffic during wet conditions in infested areas prior to topsoil removal; and
• preparing and following clubroot protocols for staff and contractors.

Additionally, the CER may consider imposing conditions related to clubroot management as a condition of project approval. Project conditions provide additional verification and oversight for confirming that all mitigation measures are implemented consistently and appropriately in the field, and to ensure that proper consultation with landowners has occurred. Under certain circumstances, the CER may require its regulated company to conduct clubroot sampling and testing prior to and following construction to refine clubroot mitigation strategies in critical locations.

Finally, the CER conducts field inspections during the construction phase to confirm that companies are applying the clubroot mitigation measures properly. If determined that companies are not in compliance with regulations and conditions, the field inspectors have the authority to apply enforcement tools to restore compliance for all aspects of environmental protection.

See the decision rendered by the National Energy Board in 2014 regarding the Enbridge Pipeline Inc. application for the Edmonton to Hardisty Pipeline Project [Filing A56736]. This decision refers to clubroot management under chapter 8 – Environment and Socio-Economic Matters.

How Deep is that Pipeline?

Author: Shannon Neufeld

People may wonder how deep the pipelines on their property are buried underground, or they may assume that the pipe is several feet underground. The honest answer is it depends. You can’t make any assumptions about the depth of the ground covering the pipe –even if you were present and watched as the pipe was being put in the ground.

Over the years the depth of cover over the pipe changes due to many different factors;

• compaction over time
• activities over the pipe
• cultivation or maintenance of land over the pipe
• environmental erosion due to wind and spring run-off
• natural disasters such as floods, fires and mudslides
• building berms or roads
• landscaping
• recontouring land for drainage

These are some examples of the events that can lead to loss of cover over the pipe, including some that can also add cover over the pipe.

The Canada Energy Regulator recently issued Safety Advisory SA-01-2022 Depth of Cover and Agricultural Activities, which outlines several clauses in the Damage Prevention Regulations (DPRs) and the Onshore Pipeline Regulations (OPR) that require companies to ensure that there is adequate cover over the pipeline so that you can safely undertake agricultural activities.

CER regulated companies have a big responsibility for damage prevention, but as landowners, land users, or contractors with employees on the ground, you also have a share of the responsibility. Any time you build something new on or near the pipeline right-of-way, you must talk to the pipeline company to get the information from them on how the project can be done safely with respect to the pipeline. There may be times when the pipeline company will tell you that your plans can’t be completed as submitted because it will jeopardize your safety and that of the pipeline; work with them to figure out what will be safe.

Even if you aren’t building anything new, you can be proactive and let the company know that your ongoing maintenance activities may have reduced the depth of cover, or maybe you just aren’t sure what has taken place over the years before you owned or worked on the property; the company can send someone out to check on it. They may not tell you the exact depth, but they can tell you whether the cover is adequate, and federally regulated pipeline companies are required to identify any specific locations where the depth of cover is inadequate.

And as always, remember that there are millions of kilometers of buried lines in this country that keep us warm, connected, watered and lit. Before you start any work, make sure that you contact your provincial one-call centre to have the buried pipes, cables and wires located. You can reach any one-call centre in Canada at Click Before You Dig.

Click here for more information on Damage Prevention at the CER.