A couple of weeks back, the National Energy Board wrote to CEPA (the Canadian Energy Pipeline Association) to request an update on the pipeline industry's progress in dealing with the issue of safe crossing for farming equipment and activities. On April 28, 2010, CEPA responded by letter addressed to the Board's Secretary: CEPA Letter to NEB April 28, 2010.
Currently, farming activities over pipelines and in the 200 foot "control zone" created by the NEB Act are governed by the Act and the Pipeline Crossing Regulations. Certain activities in the control zone, including deep tillage or tile repair, require the permission of the NEB itself. Alternatively, landowners may seek permission from the pipeline company involved under the Regulations.
However, permission to cross a pipeline and pipeline easement with farming equipment (including in the course of activities such as cultivation, planting, spraying, harvesting, etc.) can only be granted by the pipeline company pursuant to Section 112(2) of the NEB Act. In its letter to the NEB, CEPA says of Section 112(2) that leave is "not necessary for the operation of a vehicle or mobile equipment across a pipeline if the pipeline company has assessed the operation and the operation does not have the potential to damage the pipeline." Apparently this must be the practice of CEPA-member companies, because neither the Act nor the regulations provide this guidance.
The letter also refers to an "innovative self-screening tool" to be rolled out by Enbridge Pipelines Inc. in the "near future". In crossing the pipeline or conducting activities in the control zone, it looks like it will still be up to individual landowners to decide whether or not permission from the pipeline company and/or NEB is required to carry out their farming operations, leaving liability for making the wrong decision with the landowner.