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Friday, January 15, 2010

What happens when a landowner actually has the upper hand?

This question may be answered by the National Energy Board in response to an application made by NOVA Gas Transmission Ltd. (NOVA) for a Right of Entry Order. A NOVA landowner, Randolph Allan Hill, purchased land with the NOVA pipeline in place from CP Rail. CP Rail, like many other railways and large industrial landowners, had in place a "landowner-friendly" crossing agreement with NOVA which provided the landowner with a right to terminate the agreement on notice and require the removal of the pipeline.

In a December 2008 hearing before the Alberta Court of Queen's Bench, NOVA tried unsuccessfully to argue that Hill, although he had purchased the land from CP Rail, was not entitled to benefit from the crossing agreement. The Court disagreed in its decision dated March 6, 2009. Subsequent to that decision, Hill served notice on NOVA that he wanted the pipeline out of the ground. NOVA has now asked the NEB to grant an order allowing it to leave the line in place, in spite of the crossing agreement.

Not surprisingly, Hill has objected to the Right of Entry application and relies on the terms of the agreement that he purchaed from CP Rail.

NEB filings related to this case can be found at: https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=586898&objAction=browse