Written by Nicholas M. Ramessar
Pipelines, transmission lines or utility lines running across private land present a number of potential legal issues for landowners. One of the most important steps a landowner can take if a pipeline, transmission line or utility line is being proposed on their land is to retain experienced legal counsel, in order to help them understand their rights and obligations as landowners and to assist in navigating this process.
In most cases, counsel retained by landowners will be granted cost recovery by the regulatory body that must decide if the project is in the public interest. Experienced counsel can greatly assist landowners in this process in negotiating with the utility company in order to ensure the landowner’s interests are met.
There are several different types of pipelines or transmission lines that a landowner may encounter in Alberta:
- High pressure oil and gas pipelines that operate within provincial borders in Alberta are regulated by the Alberta Energy Regulator (“AER”)
- Gas utility pipelines operated by investor-owned utilities are approved by the Alberta Utilities Commission (“AUC”) and regulated by the AER Rural gas distribution lines are approved by the Rural Utilities Section Alberta Agriculture and Forestry (“RUS”) and regulated by RUS and AUC
- Oil and gas pipelines that cross provincial or national borders are regulated by the National Energy Board (“NEB”)
Generally speaking, the lifecycle of a provincially-regulated pipeline in Alberta involves the following stages:
Stage One: Land survey
- A land survey will be conducted by the utility company to help determine the proposed route of the line, including the topography information of the land.
- The company or a land survey company should provide the landowner with reasonable notice for the land survey and pay for any damages that result from conducting the survey.
- A landowner does not have the right to refuse a land survey on their land.
Stage Two: Stakeholder engagement
- During this stage, the company will reach out to landowners and the affected communities, or other interested parties, to build relationships and start communication with stakeholders.
- Landowners who have concerns about the proposed line may submit a pre-application Statement of Concern (“SOC”) to the regulator (and may also submit an SOC after the company’s license application is submitted to the regulator).
Stage Three: Consultation and notification
- Landowners and potentially affected parties will be contacted by a representative of the company or receive notice of an application for the line from the regulator.
- Potentially affected parties will either receive notification or consultation regarding the proposed line, depending on the party’s location and relationship to the land.
- Consultation with landowners requires that a discussion take place in person or on the phone.
Stage Four: Negotiation of right-of-way
- During negotiations, the landowner (or their counsel) may negotiate a right-of-way or easement agreement with a licensed land agent.
- Landowners should review the proposed right-of-way route to determine where it runs on their land and if there may be alternate configurations that the landowner may prefer.
- After identifying the location of the proposed line on their land, landowners should identify the impacts that the right-of-way may have on their land. These impacts can include: interference with agricultural operations such as the spread of weeds and seeds and soil-borne diseases, severing the land, environmental impacts, visual impacts, property value impacts, and any other impacts.
- A right-of-way or easement in Alberta is registered as a caveat by the company against the landowner’s land title. A rural utility line is often registered as a blanket easement on the landowner’s title, which does not specify the exact routing of the right-of-way.
- An experienced lawyer is invaluable at the negotiation stage, and can help landowners to: review and understand the proposed route and the right-of-way or easement agreement, to identify any impacts the proposed line will have on their land, and to identify and negotiate for modifications/additions or revisions to the right-of-way or easement agreement that will benefit the landowner.
- An experienced lawyer can also assist in determining ways that the company can mitigate impacts on the land.
- A lawyer can also assist landowners in negotiating a separate lease agreement for any above-ground equipment related to the proposed line.
Stage Five: Confirmation of non-objection
- The company will want a Confirmation of Non-Objection (“CNO”) from landowners for their application to the regulator, to confirm that the landowner has no objections to the proposed line.
- Any objections that a landowner may have to the proposed line, other than objections solely related to compensation, should be sent to the company prior to the CNO or communicated during stakeholder engagement and/or consultation with landowners.
- Compensation-only objections related to the proposed line are dealt with separately, by the Surface Rights Board (“SRB”) once a license is approved.
Stage Six: License application to the regulator
- Should landowner concerns not be addressed, the regulator will hold a public hearing to determine if the project is in the public interest by evaluating the macro and site-specific impacts of the projects.
- Experienced counsel should be retained to assist the landowner at the public hearing. In most cases, cost recovery for the cost of counsel is available to landowners.
- Once the license application is submitted to the regulator, concerned parties have 30 days to submit an SOC.
- If the company is not willing to mitigate potential impacts to the land, the landowner should submit their concerns to the regulatory body. In response to such concerns being identified, the regulator may: move the proposed line, order specific mitigations be carried out by the company, or even deny the proposed project entirely. In this case, legal counsel retained by landowners to participate in the regulator’s license application process will be paid for by the company.
Stage Seven: Regulator decision
- The regulator will generally make a decision within six months following the hearing.
- If the regulatory body decides the project is in the public interest, it may grant a license to hold a right-of-way over the land.
- A landowner is entitled to compensation, as determined by the SRB, for any license to hold a right-of-way that is granted on their land. Experienced regulatory counsel can assist a landowner at this stage receive the highest compensation available to them from the SRB.
- Experienced regulatory counsel can also assist a landowner in appealing a regulatory decision (the regulatory appeal process).
Carscallen LLP’s regulatory advocacy expertise
An experienced regulatory lawyer can assist landowners understand their rights and obligations when a pipeline, transmission line or utility line is being proposed on their land, and advocate for their interests at all stages of the line’s proposal and approval process.
The Carscallen Regulatory Advocacy Group has a wide range of legal experience conducting complex proceedings before regulatory bodies in Alberta including the provincial utility regulators/commissions, and the appeals of regulatory decisions.
If you have any questions on how a proposed pipeline, transmission line or utility line may affect your land, or any other regulatory or utility board-related inquiries, please contact Nicholas M. Ramessar, Michael B. Niven, QC or any member of the Carscallen Regulatory Advocacy Group.
This update is intended for general information only on the subject matter and is not to be taken as legal advice.