2017 Soybean Harvest

2017 Soybean Harvest

Wednesday, December 19, 2012

Pipeline Landowner Forum available at Pipeline Observer

An online forum for pipeline landowners has been set up at PipelineObserver.ca, along with blogs and news updates. The website "tracks pipeline news, industry, events and facilitates pipeline discussion".  The forum can be accessed at: Pipeline Forum.

When can a stream create a natural severance of a property?

A case is before the Ontario Superior Court in London to determine whether a local watercourse effectively severs a property into two parts.  An application has been commenced by the Municipality of Middlesex Centre for a declaration that a stream (the Bear Creek Drain) is not a navigable waterway such that a particular property through which it flows would be severed in two.  The predecessors in title of the affected landowners had previously applied to sever their property, but the application was denied.  The current landowners then obtained an opinion that the stream created a "natural severance"; a surveyor agreed and registered a reference plan showing the lands north and south of the stream as two separate parts and denoting the stream itself as "Unpatented Crown Land".

This was done without the knowledge of the municipality; the circumstances were discovered when the landowners made an application for a building permit that would have constituted a second dwelling on the same 10-acre parcel; this would not have been permitted without a rezoning unless there was a "natural severance".

Justice Heeney has ruled that it will not be necessary for the municipality to serve its application on other landowners along the Bear Creek Drain as the issue to be determined at trial will relate solely to the specific property in question: "was the stream a naviagble waterway at the time of the original Crown grant to the current owners' predecessors in title in 1831?  If the answer is yes, then the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway.  If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including" the current landowners.

As the onus of proof will be on the landowners, Justice Heeney also ruled that they will present their case first at trial, to be followed by the municipality and then the Province of Ontario.

Read the decision at: Middlesex Centre v. MacMillan et al.

Thursday, December 13, 2012

OPA to begin accepting Small FIT applications on December 14, 2012

From the OPA:

This is to advise you that the Ontario Power Authority (OPA) will begin accepting Small FIT applications on December 14, 2012, for renewable energy projects with a proposed capacity of 10 to 500 kilowatts. The OPA will award up to 200 megawatts worth of contracts as a result of applications received during this upcoming Small FIT application window.

Please note that the FIT Rules, FIT Contract and other program documents are being revised as a result of the November 23, 2012, and December 11, 2012, directives. Before submitting your application, please carefully review the latest versions of the program documents (version 2.1) to ensure you understand how the FIT Program has changed. The program documents will be available on the FIT website on December 14, 2012.

Applications are welcome from both new and pre-existing applicants. Pre-existing FIT applicants with Small FIT projects (formerly CAE applicants) who wish to be considered under the updated FIT Program can maintain their original time stamp if they submit an eligible revised application. More information will be available at fit.powerauthority.on.ca on December 14, 2012.  The OPA will also be hosting a web-enabled teleconference on Tuesday, December 18, 2012, to review the revised FIT Program and answer questions from interested stakeholders.  Details on how to participate will be posted on the FIT website.
 

Wednesday, December 12, 2012

BC Court of Appeal allows landowner appeal in breach of easement agreement case

I last wrote about this case in 2010: Utzig #2 decision.  As I explained in that post, the litigation concerns whether a pipeline owned and operated by the plaintiff Terasen Gas Inc. (“Terasen”) that runs through a portion of Burns Bog in Delta, B.C. was damaged or put at risk by landfill operations on lands owned by the defendant Utzig Holdings (B.C.) Ltd. (“Utzig”). The landfill operations were conducted, with Utzig’s permission, by the other defendants Alpha Manufacturing Inc., Burns Developments Ltd. and Burns Developments (1993) Ltd. (“Alpha” and “Burns”).

The BC Court of Appeal has now released a decision limiting the scope of the breach of covenants finding made by the lower court and dismissing in its entirely the claim in nuisance against the landowner. 

The covenants by the "owner" to the "utility" read as follows: "Not to do or knowingly permit to be done any act or thing which might, in the opinion of [the utility], interfere with or injure the works or any part thereof" (1961 ROW agreements) and "Not to do or knowingly permit to be done any act or thing which might, in the reasonable opinion of [the utility], in any way whatsoever interfere with or injure or endanger the works or any part thereof or impair the operating efficiency thereof or create or increase any hazard to persons." (1981 instrument)

For the landowner Utzig, the issue was whether it had, at all material times or some material times, permitted other parties to endanger the pipeline.  A key date was October 10, 1993, when Utzig entered into an Agreement for Sale of the property, which was never registered on title to the property.   The purchase price of $4 million was to be paid in instalments by October 18, 1995.  Terasen went to Court to seek injunctive relief prior to October, 1995, and the sale was never completed because the purchaser failed to pay the entire purchase privce when due.  For this reason, Utzig remained the registered owner of the property at all material times.

Madam Justice Newbury ruled (on behalf of 2 of the 3 judges on the panel) that the breach of the covenant not to permit only lasted up to the October 10, 1993 date:

In the result, I agree with the trial judge that up to October 10, 1993, Utzig retained sufficient authority over the subject property that it should be regarded as having “permitted” Alpha to do acts that might have interfered with or injured the pipeline. This constituted a breach of covenant. If in fact the works were so affected in this period, damages may be found to be payable in the second stage of this litigation. In respect of the post-AFS period, however, I would allow Utzig’s appeal on the ground that having sold the property under the AFS, it was no longer in a position to “permit”, or withhold permission for, Alpha’s activities. This result, in my view, accords with the reality that once land has been sold, it is for the new owner to be responsible for new breaches of the terms of instruments (such as rights of way or restrictive covenants) that are registered against the land. If it were otherwise, vendors would be obliged to obtain covenants from their purchasers repeating the covenants in such instruments, and one of the primary advantages of the Torrens registration system would be lost.

The last issue decided on the appeal related to Terasen's claim for nuisance - that Utzig was responsible for the landfill activities conducted on its land with its consent and that such activities substantially interfered with Terasen's use of its rights of way.  This claim related to the pre-October 10, 1993 period.  Utzig submitted that the threshold of “unreasonable interference” was not met in this case, given the lack of evidence of any “significant movement” of the pipeline until late 1994 and the fact the pipe was never “injured” physically.  The Court of Appeal ruled that, in the absence of clear evidence of substantial interference, the trial judge's finding of nuisance could not stand.

Read the decision at: Terasen Gas Inc. v. Utzig Holdings.

Monday, December 10, 2012

Court rules that oil and gas production lease does not grant gas storage rights

This is another decision in the ongoing McKinley Farms and Tribute Resources battle over gas storage rights on 200 acres of land in Huron County.  Tribute, through its predecessor(s), had obtained an oil and gas lease and a gas storage lease for the land in question.  The Court of Appeal has earlier ruled that the 1998 gas storage lease is no longer valid, but the Court upheld the oil and gas lease. 
 
Tribute now argues that it has gas storage rights under the oil and gas lease.  However, in the meantime, McKinley Farms has granted a gas storage lease to a different numbered company and now seeks an order from the Court that this lease is the only lease of the McKinley Farms lands that validly grants storage rights.  Justice Rady of the Superior Court of Justice in London has granted this order.
 
Justice Rady agreed with Tribute that its oil and gas lease contained language that could be interpreted to convey rights to storage; but she also concluded that the storage lease agreement (which was found by the Court of Appeal to be invalid or expired) was intended by the parties to replace those rights. 

Saturday, December 8, 2012

Ontario releases new Drainage Act and Conservation Authorities Protocol

In 2008, the inter-agency Drainage Act & Section 28 Regulations Team (DART) was established by the Ministry of Natural Resources (MNR) and the Ministry of Agriculture, Food and Rural Affairs (OMAFRA) to explore the options and propose solutions to the legal liability issues for municipalities and conservation authorities arising from provisions in the Drainage Act and the Conservation Authorities Act.  DART includes representatives from MNR, OMAFRA, Conservation Ontario, conservation authorities, the Drainage Superintendents Association of Ontario, the Ontario Society of Professional Engineers Land Drainage Committee, Ontario Federation of Agriculture, Ontario Farm Environmental Coalition, and the Rural Ontario Municipal Association. The Team’s goal was to develop a means for municipalities and conservation authorities to fulfill their responsibilities under the Drainage Act and Conservation Authorities Act respectively without compromising the intent of either statute.  The Team developed a draft Drainage Act and Conservation Authorities Act Protocol. Included in the Protocol is a joint Drain Maintenance or Repair Notification Form which may be used to apply for permissions from conservation authorities, MNR, and Fisheries and Oceans Canada. After public consultation, the Protocol and Notification Form were approved by the Ministers of Natural Resources and Agriculture, Food and Rural Affairs and are now Provincial policy. These documents are intended for internal use by municipal and conservation authority staff.
 
Read the Protocol at: DART Protocol.

Friday, December 7, 2012

2012-2013 Farm Advisors Guide Now Available

Cultivating Business, the official publication of the Canadian Association of Farm Advisors (CAFA) is now available at: Cultivating Business 2013.  The publication includes a detailed listing of farm advisors across Canada.

ERT dismisses Chatham Kent wind turbine appeal


The Environmental Review Tribunal (ERT) has dismissed an appeal by the Chatham Kent Wind Action Inc. of a Renewable Energy Approval (REA) of a 270 MW wind farm near Tilbury and Ridgetown, in the Municipality of Chatham-Kent, Ontario. 
 
Key findings were made by the ERT at paragraphs 63 and 64 in its decision:
 
[63] The Tribunal has the duty to apply the statutory test. The onus is on those challenging the REA to establish how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health. Although Mr. Erhard raises concerns with respect to the accuracy of noise prediction, evidence is needed to establish that the alleged inaccuracies with noise predictions will cause serious harm to human health. No evidence and no submissions were made to connect the alleged inaccuracies with respect to the noise predictions with harm to human health or the environment.
 
[64] In conclusion, the Tribunal finds that the Appellant, the participant and the presenter have not shown that engaging in the Project in accordance with the REA will cause serious harm to human health as required by s. 145.2.1(2)(a) of the ERT.  The Tribunal, therefore, dismisses the appeal.
 
Read the decision at: Chatham Kent Wind Action Inc. v. MOE.

Thursday, December 6, 2012

Farm Property Class for legal owners, not beneficial owners

The Ontario Divisional Court heard a "stated case" from the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concerning the appeal of property tax assessments of various properties.  The applicants had appealed on the basis that they should have been assessed in the farm property class under Section 8(2) of Regulation 282/98.  The questions on the stated case to the Divisional Court boiled down to whether lands that are beneficially, but not legally, owned by Canadians, qualify for farm property class.  In general, a property is legally owned by the named registered owners of the property; other individuals or entities may hold unregistered equitable ownership interests in the property.  The Divisional Court concluded that the favourable tax treatment applies only to lands legally owned by Canadians.

The properties at issue in this case were purchased for commercial investment purposes by Walton International Group Inc.  They are currently being used for farming, but the long-term plan is to develop them for non-farming purposes. 

Read the decision at: Walton International v. Farm Property Class Tax Rate Program.

Wednesday, December 5, 2012

Court of Appeal rules "restoration" of farm land required aggregates licence

An excavating company was charged under the Aggregates Resources Act for operating a pit without a licence.  The company was carrying out a contract with a farmer, removing topsoil, levelling sand knolls, selling the sand, and then restoring the topsoil to restore it for farming.  Neither the company nor the farmer had obtained a licence to operate a pit or quarry under the Act.

At trial, the Justice of the Peace acquitted the company on the basis that the land, which was not a pit, was being rehabilitated for farming.  The Crown appealed that decision to the Ontario Court of Justice, which found that it was not the purpose of the Act to regulate the type of activity where "a farmer was simply trying to improve his farmland to grow better crops".

The Court of Appeal disagreed:
It is clear that what the respondent was doing was excavating a pit within the grammatical and ordinary sense of the definition in the ARA. The respondent argues that the ARAshould not be interpreted to include pits that are being excavated and that will be rehabilitated in order to improve farmland and not for the purpose of commercial aggregate production. The problem with that interpretation is thats. 1(3) provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for such an exemption if the licencing requirement did not apply, prima facie, to the particular excavation. Moreover, the intention to rehabilitate the excavation in the future does not take the operation out of the definition of a “pit”. That definition covers land “that has not been rehabilitated” and s. 48 requires all licencees and permittees to rehabilitate the site in accordance with the Act and regulations.

The Court of Appeal set aside the acquittal and, based on an agreed statement of facts in the case, entered a conviction and sent the case back to the Justice of the Peace for sentencing.

Read the decision at: R. v. Ontario Corp. 311578 (Dedrick Bros. Excavating Ltd.).

Monday, December 3, 2012

Enbridge Line 6B Citizens' Blog

Click here to visit a blog by "concerned landowners affected by the Enbridge 'replacement' project": Line6B Citizens' Blog.  Recall that Enbridge's plan for its Line 6B pipeline in Michigan (related to the Kalamazoo River spill) is to abandon about 75 miles of pipe in place and to construct new pipe in a new easement next to it.  The new easement will be obtained by expropriation where agreement is not reached with the landowner.

Friday, November 23, 2012

Ontario: Draft Guide - Soil Management - A Guide for Best Management Practices


The Ontario Ministry of the Environment (MOE) has released a draft best management practice guide concerning soil management for public review and comment until January 18, 2013.  The MOE explains on the entry in the Environmental Bill of Rights Registry:

Every day, in Ontario, large amounts of soil are being moved to support development activities. This excess soil is mainly generated by excavation during construction and redevelopment activities, and often cannot be reused at the site of generation. Excess soil must be managed in a safe and sustainable manner in order to maintain a healthy economy while protecting the environment.

The ministry encourages the reuse of excess soil, where appropriate, provided that the use does not have a potential to cause adverse effect on human health and the environment, or impairment of water quality, as described under the ministry’s Acts and Regulations. It is the responsibility of all parties who generate, haul or receive excess soil to ensure that it is being managed in an environmentally sound manner in accordance with all regulatory requirements. The ministry would like to clarify some best management practices when engaging in soil management activities.

The proposed guidance document “Soil Management – A Guide for Best Management Practices” is attached for your review and comment. This proposed Best Management Practices guide is intended to provide essential guidance on many aspects of soil management. Please provide comments on the proposed guidance document to support safe, sustainable soil movement and reuse. The ministry will evaluate all comments received to determine if future actions for soil management are required.

The proposed document would provide guidance for the management of excess soils generated from construction and redevelopment projects with a focus on those soils generated from brownfields redevelopment activities taken to commercial fill operations. While the guidance may be applicable to a wide variety of soil management projects, they are not intended to apply to small scale construction such as maintenance and repair activities or construction activities at single-dwelling residential properties based on the volumes generated.

The Soil Management - A Guide for Best Management Practices document only addresses the management of soil (soil as defined by Ontario Regulation 153/04 (O. Reg. 153/04)). The document provides guidance on how to handle excess soil from a source site where it is generated, through to the transportation of the excess soil to a site where the soil can be reused for a beneficial purpose, such as site alterations, re-grading, or filling in excavations, or to soil stockpiling sites for temporary storage. These activities must meet any relevant regulatory requirements and should ensure that there is no adverse effect.

This proposed guidance document would promote some of the best practices that are currently being exercised by those who actively manage excess soil across the province. The proposed guidance is intended to assist municipalities and conservation authorities in their oversight of fill operations through their existing permitting regimes. This proposed guidance will help to provide consistency across the province in expectations for excess soil management.
Soil Management – A Guide for Best Management Practices currently focuses on five key areas of interest:
  • Soil reuse at civil construction and other commercial development activities;
  • Soil generation at source sites, assessment and management;
  • Soil acceptance at receiving sites, assessment and management;
  • Procurement practices for the removal and management of excess soils;
  • Temporary Soil Banking (soil stockpiling).
As part of the Best Management Practices document, the ministry is not intending to introduce new standards that apply to soil movement. The ministry does however anticipate supporting industry in the development of complementary industry code of practices, such as guidance for Qualified Persons for the development of appropriate soil standards for receiving sites.

The ministry encourages all comments and input into the proposed guidance document. The ministry is looking for particular input into what terms within the document require further definition and recommendations on how to define terms within the document, such as “large-scale”.


A copy of the draft guide is available at: For Consultation - Soil Management - A Guide for Best Management Practices

Shaun Fluker on Bill 2 in Alberta: Implications for Landowner Participation

Click on the following link to read a comment by University of Calgary Assistant Professor Shaun Fluker on Alberta Bill 2 (Responsible Energy Development Act) and it implications for landowner participation: Bill 2 and its implications for landowner participation in energy project decision-making.  Fluker's observations on the bill include the following:
Bill 2 contains no statutory obligation on the Regulator to conduct a hearing either before or after it makes a decision on whether to approve a proposed energy project.  Bill 2 repeals the statutory hearing rights provided to a landonwer in section 26(2) of the ERCA to contest an energy project application, and does not replace them.

Monday, November 19, 2012

While it may sometimes seem unfair when rules are changed in the middle of a game...

... that is the nature of the game when one is dealing with goverment programs.

That was the statement made by the Ontario Divisional Court in a recent decision dismissing an application for judicial review of actions take (or not taken) by the Ontario Power Authority and the Ontario Minister of Energy in connection with green energy Feed-in-Tariff projects.  A long list of project proponents (118 in total) sought declarations from the Court that the OPA and the Minister "acted unreasonably in failing to process applications in accordance with" the OPA's own rules and that the Minister's new "Directions" in the FIT program are "unfair, discriminatory and ultra vires the enabling legislation".  The Applicants also sought an order requiring the OPA to process their existing FIT applications in accordance with the previous FIT Program Rules.

The complaint was that changes made to the FIT Program Rules were unfair to those project proponents who had already applied under the old rules - the new rules would apply to all outstanding project applications that had not already reached a certain point in the review/approval process.  Included with the new rules were lower prices to be paid for the electricity generated by FIT projects.

The Divisional Court found that the standard of review of the Minister's decision (in making and applying the new FIT rules) was reasonableness; the Court had to give considerable deference to the decision of the Minister.  In the end, the Court did not agree with the Applicants that the decisions in question were unreasonable.  In response to the argument made about legitimate expectations, the Court said:

Turning then to the ground of legitimate expectations, it is perhaps useful to begin with a definition of what the principle of legitimate expectations involves. The principle was set out in Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 S.C.R. 504 where Binnie J. said, at para. 68:
Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.
Once again, I find little to which the applicants can point that would constitute a representation that is “clear, unambiguous and unqualified”. The statements to which the applicants do refer that were made by Ministers Smitherman and Duguid do not, on their face, amount to representations that are unambiguous and unqualified. They are also not directed specifically to the applicants. Rather, they were statements of general application. In addition, the statements were clearly made in relation to the FIT Program itself and have to be read with, and understood in the context of, the detailed requirements and conditions of that program to which I have made reference above. Read in context, the applicants could not reasonably assert a legitimate expectation based on these statements that the criteria for the FIT Program or the process under it would not change.

The Court also disagreed with the Applicants that they had gained any vested rights through their involvement in the FIT program application process.  Likewise, the Court found that there was nothing to prevent the new FIT rules from having retroactive effect.  It was in the course of communicating this conclusion that the Court made its comment about changing the rules of the game mid-course.  As with tax laws, "no one has a vested right to continuance of the law as it stood in the past".  When planning one's affairs based on the current state of legis

Read the decision at: Skypower CL I LP et al. v. Minister of Energy (Ontario) et al.

Tuesday, October 30, 2012

100,000 Hits!

Law of the Lands - Farm, Energy & Enviro Law has reached the 100,000 hit mark!  Thanks to all my readers. 

Happy Harvesting!  To those "lucky" enough to be at it still...


Wednesday, October 24, 2012

Court of Appeal rules dock at end of right-of-way can stay

The Court of Appeal has released its decision in a right-of-way case I argued before it on October 11.  The Court overturned a trial decision that prohibited the appellant landowners from using their right-of-way to a lake to access a dock they had constructed in the lake.  The local conservation authority had granted a permit for the dock, but the owners of the right-of-way opposed the presence and use of the dock. 
 
On behalf of the Court of Appeal, Justice Goudge ruled that the right-of-way in question was one of general use and that accessing the dock was not an overburdening use of the right-of-way.  Importantly, he stated that, "what the user does immediately after leaving the right of way cannot be said to affect the use made of the right of way at all.  Accessing the dock does not extend the right of way beyond the shoreline."
 
Read the decision at: Kendrick et al. v. Martin et al.

Landowner has to pay engineer's cost for withdrawn Drainage Act petition

The Agriculture, Food and Rural Affairs Appeal Tribunal has ruled that a landowner who petitioned a municipal drain and then withdrew the petition is still on the hook for engineer's costs already incurred before the withdrawal.  The landowner had petitioned to have his property added to another municipal drain that was being petitioned by neighbouring landowners.  However, when he learned of the cost of joining the drain and when his drainage problems appeared to be alleviated by a neighbour's private drainage works, the landowner sought to withdraw his own petition.
 
The Tribunal found that the landowner should be responsible for the added costs of the engineer related to surveys and designs for extending the drainage works onto the withdrawing landowner's lands.  A ruling was made that the $7,500 cost would be assessed to the non-participating landowner as a special benefit assessment.
 
Read the decision at: Van Driel Drain.

Monday, October 15, 2012

Manure company not exempt from employment standards requirements

The Ontario Labour Relations Board has ruled that a manure transporting and spreading company is not a "farm" within the meaning of the Ontario Employment Standards Act ("ESA").  Organix Matters Inc. ("Organix") was found by the Ministry of Labour to have violated the overtime provision in the ESA; employees worked in excess of the maximum hours of work permitted by the Act, were not paid at the overtime rate, and worked more than the maximum number of hours without required breaks for meals or rest.

Organix does the primary tillage and injects manure into the soil thereby ensuring an even application of nutrients and reducing odour and nitrogen losses. Organix uses large pieces of agriculture equipment with specialized tire rims to prevent soil compaction to ensure the best root growth for crops and the best crop yields. Organix’s process is fast and efficient. What traditionally took a week can be done in half a day. Farmers use Organix because it is cost effective and efficient. The farmer gets the benefit of Organix’s spreading processes without having to make the large capital investment of buying the equipment.

Spring is Organix’s busiest season with the early application of manure on winter wheat plants to meet its nitrogen requirements. Organix then fertilizes hay and corn. When the first crop of hay has been taken there is an immediate requirement for the application of manure so that the second planting of hay is not burned. In the summer, Organix fertilizes summer soybeans and white beans. In the fall, Organix fertilizes winter wheat before snow falls, because under the Nutrient Management Act fertilizer can not be applied to frozen ground. In the winter, Organix’s operations are mostly suspended with the exception of assisting farmers if a manure pit overflows.

Organix argued to the Labour Relations Board that it was a farm operation and, therefore, the overtime provisions did not apply.  However, the Board found that Organix employees are not engaged in farming; it is a commercial operation which provides a service to approximately 200 farms, and Organix employees do not have a direct employment relationship with the farmer.  The Board did not agree that Organix is involved in the primary production of farm produce; it provides ancillary services. 

The Board noted further:
Organix may be considered under some legislation to be operating in farming or agriculture. Had the legislature intended the exemption to apply to commercial operations such as Organix it could have used the definitions used in other pieces of legislation under which Organix is considered an “agricultural operation,” “person engaged in the business of farming,” “agriculture,” or user of “farm implement[s]”under other pieces of legislation. The Act’s purpose is different from than other pieces of legislation because it has as its purpose, the protection of workers and the insurance of minimum employment standards.

Read the decision at: Organix Matters Inc. v. Director of Employment Standards. 

Thursday, October 4, 2012

Ontario: Provincial Planning Act Policy Statement undergoing 5-year review


The Provincial Policy Statement (PPS), the document that guides municipalities in planning decisions (including severances from farm properties) is undergoing its regular 5-year review.  Draft policies have been released for public review (see Draft Policies).  The main draft policy on agricultural areas is as follows:

2.3 Agriculture

2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture.
Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Classes 1, 2, and 3, and any associated Class 4 to 7 soils within the prime agricultural area, in this order of priority.
2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time.
2.3.3 Permitted Uses
2.3.3.1 In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses.
Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.
2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.
2.3.3.3 New land uses, including the creation of lots, and new or expanding livestock facilities shall comply with the minimum distance separation formulae.
2.3.4 Lot Creation and Lot Adjustments
2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:
a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;
b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;
c) a residence surplus to a farming operation as a result of farm consolidation, provided that:
1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
2. the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the vacant remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and
d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.
2.3.4.2 Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.
2.3.4.3 The creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c).
2.3.5 Removal of Land from Prime Agricultural Areas
2.3.5.1 Planning authorities may only exclude land from prime agricultural areas for:
a) expansions of or identification of settlement areas in accordance with policy 1.1.3.8;
b) extraction of minerals, petroleum resources and mineral aggregate resources, in accordance with policies 2.4 and 2.5; and
c) limited non-residential uses, provided that:
1. the land does not comprise a specialty crop area;
2. the proposed use complies with the minimum distance separation formulae;
3. there is a demonstrated need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and
4. alternative locations have been evaluated, and
i. there are no reasonable alternative locations which avoid prime agricultural areas; and
ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.
2.3.5.2 Impacts from any new or expanding non-agricultural uses on surrounding agricultural operations and lands are to be mitigated to the extent feasible.

There are also other aspects of the proposed PPS that deal with agriculture, such as extraction of petroleum or aggregates from prime agricultural lands.

You can participate in the PPS review up to November 23, 2012:

Ontario is holding workshops in communities across the province. Please visit the regional workshops page or call 1-877-711-8208 if you have any questions.

To submit your comments electronically, complete this online questionnaire, or you can send written comments to:

Provincial Policy Statement Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay Street, 14th Floor
Toronto, ON M5G 2E5
Tel: 416-585-6014 or 1-877-711-8208
Fax: 416-585-6870
E-mail: PPSreview@ontario.ca

Please note: All comments and submissions received will become part of the public record.

Comments must be received no later than November 23, 2012.

Friday, September 28, 2012

Drainage Tribunal decides it has no jurisdiction to rule on prescriptive easement rights

In a recent drainage appeal case, the Agriculture, Food and Rural Affairs Tribunal has decided that it does not have jurisdiction to determine property and prescriptive rights; this jurisdiction rests exclusively with the Ontario Superior Court of Justice pursuant to Sections 97 and 100 of the Courts of Justice Act and, on a limited basis, with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.

One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement.  The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property.  The building up dammed the water, causing drainage problems.

The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority.  It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.

Read the decision at: David Adams Municipal Drain.

Wednesday, September 26, 2012

Court rules that admission that right-of-way exists cannot be withdrawn

The owners of a large farm property in the Cookstown, ON area applied to the Court for an order that would have the effect of withdrawing an admission they made in previous court proceedings that their property is subject to a right of way (a narrow strip of land measuring 60 m x 20 m).  As the judge explained in his decision on the motion before him:
Now the applicants seek an order that would have the effect of withdrawing their admission that there is a right of way – precisely the same right of way that the applicants admitted existed, and upon which this court and the Court of Appeal has already rendered a decision. Should this court exercise its discretion to allow for such an amendment in the face of these facts?
The parties to the application had been parties to three previous actions, one of which proceeded to trial and then an appeal.  Justice Edwards noted that, "there can be no doubt then that in all three actions the applicants have accepted and asserted the existence of the right of way." 

In spite of that, the applicant owners now argued that, even though a right of way was created in 1974, the chain of title was broken such that the right of way was not validly transferred to the current owners of the "dominant tenement" (i.e. the land benefitting from the right of way).

In deciding the issue Justice Edwards stated, "An admission made in a pleading or an affidavit is something to be relied upon not only by the opposite party but by the court.  An admission may therefore only be withdrawn in very limited circumstances."  Whether to allow an admission to be withdrawn is a matter of discretion for the Court; in this case, Justice Edwards ruled that the admission could not be withdrawn.  Among the reasons given for this decision was that, "it would be contrary to public policy to allow a party now to come before this court to withdraw an admission that has been made in three separate actions, one of which has been disposed of by settlement and the other one of which has been adjudicated upon by McIssac J."

Justice Edwards continued:
Litigants are entitled to assume that once there has been a decision of this court, particularly one which has proceeded so far as the Court of Appeal, that such a decision is final and that the facts upon which that decision is based are also deemed to be final. Apart from the question as to whether or not there is prejudice, which in my opinion there clearly is, public policy dictates that the withdrawal of the admission now sought by the applicants should not be granted. The applicants’ motion is therefore dismissed.
Read the decision at: Pagliuca et al. v. Paolini Supermarket Limited.

Wednesday, September 19, 2012

Ontario: Licensing Private Natural Gas Wells

The Ontario Ministry of Natural Resources (MNR) has now released the final version of its "Approach for Licensing Private Gas Wells".  This internal operating policy directive establishes the criteria by which operating, pre-existing private gas wells can become licensed by the MNR under the Oil, Gas and Salt Resources Act.  The requirement for a license came into effect for all wells, private or commercial, in June 1997.  However, many private wells were not licensed.

The policy directive clarifies the terms and establishes minimum guidelines for licensing pre-existing private wells.  According to MNR, the policy addresses potential safety and environmental risks posed by those wells, while recognizing the benefits of having private well operators come forward to obtain a well licence.  Read the policy directive at: Licensing Existing Private Natural Gas Wells.

On the Environmental Bill of Rights Registry, the MNR has also posted a summary of various comments it received during the review process and its responses to these comments:

1. “Private Use” of Gas

Comment: Natural gas from these wells is often consumed by someone on a property other than the one on which the gas well is located. Such a transfer of gas, or the transfer of a gas well itself in some cases, may have been captured in a written agreement between the two parties who believe they are acting within the law. The policy describes any sale of gas as disqualifying the well from being considered as “private use”. The suggestion was made to allow flexibility to recognize these ‘good faith’ agreements as being within the definition of private use.

MNR Response: To accommodate these types of agreements, the interpretation of “private use” has been revised to include persons with a legal interest in the well. MNR recognizes that such agreements exist and will have various levels of complexity and sophistication. Agreements will be examined on a case-by-case basis to determine if there is substantial evidence to support the legitimate use of gas by someone other than the well owner.

2. Annual Consumption of Gas

Comment: The policy requires that the annual consumption of gas from a well be less than 10,000 m3 for it to be considered a private well. Some respondents commented that this threshold should be removed from the policy altogether. Others commented that the limit was too low and should be increased to accommodate farmers who use the gas in the operation of their farm (for drying crops, heating outbuildings, etc).

MNR Response: The annual consumption limit has been removed from the policy.

3. Adjacent Lands

Comment: The policy allows for use of gas on “adjacent” properties so long as those properties are owned by the well operator. The meaning of the term “adjacent” needs to be clarified.

MNR Response: The term adjacent has been clarified in the policy to mean “two properties that share a common boundary.”

4. Pipelines Crossings Right-of-Ways

Comment: Transmission of gas through a pipeline crossing or alongside a municipal road allowance or right-of-way disqualifies the well for licensing unless the pipeline is inspected by the Technical Standards and Safety Authority (TSSA) and authorized by the municipality. A number of respondents were uncomfortable with the idea that TSSA might be contacted by MNR, because TSSA operates on a cost-recovery basis and could cause undue hardship for well owners.

MNR Response: MNR is responsible only for the licensing of the gas well. The intention of this requirement was to ensure well owners recognized that MNR’s gas well licence may not be the only approval needed for the operation of a private well. The wording in the policy has been revised to make clear that it is the responsibility of the well owner to obtain any other necessary approvals that may be required to use and/or transmit gas from a private well. The onus to seek other approvals rests solely with the well owner or operator and will not be a condition of licensing.

5. Qualified Persons

Comment: The list of Qualified Persons in the policy should be expanded to include technicians and technologists, not just engineers, geoscientists, and Examiners. Respondents pointed out that the cost of using an engineer, for example, may be prohibitive.

MNR Response: The policy is revised to state that other persons not already qualified as Class II Examiners may seek to qualify as a Class II Examiner and thereby become a Qualified Person. This would include someone certified as an engineering technologist (C.E.T.) or certified technician (C. Tech) with the Ontario Association of Certified Engineering Technicians and Technologists.

6. Cementing Around the Wellhead

Comment: Generally respondents felt that the requirement to cement around the wellhead was not practical and should be removed from the policy. The freezing and thawing of the ground around the wellhead will cause the cement to fracture and break apart, defeating its intended purpose. In some locales, the ground around a well is made of hard clay and is already impervious to water.

MNR Response: MNR has removed the requirement to cement around the wellhead from the minimum Acceptable Well Conditions described in the policy. However, it is still required that the ground around the wellhead be sloped away in all directions to prevent the pooling of water in the vicinity of the well.

7. Setbacks

Comment: Setbacks from buildings and other infrastructure were the subject of many responses. Some pointed to the fact that many wells had been encroached upon by development (i.e. were there prior to the infrastructure, not vice-versa) and therefore the setbacks unfairly penalize the well owners. The 30 metre (m) setback from a property boundary was the subject of most comments. People noted that many wells were purposefully placed near a property boundary to keep them from obstructing farming operations. Others remarked that utility installations were often located within 10m of a roadway and felt that private gas wells were being unfairly penalized by requiring a 10m setback from the road allowance.

MNR Response: MNR has made the following changes to the setbacks in the policy:

• The 30m setback from a property boundary has been removed.
• Reduced the setback from road allowance to 5m (from 10m).
• Removed the 50m setback from Great Lakes and tributaries. A 15m setback will apply to water bodies.

Other setbacks, namely the 30m setback from private residences and the 75m setback from public buildings, remain unchanged. However, the ministry will consider a reduced separation distance if it is supported by the opinion of a professional engineer hired by the well owner.

8. Term of Licence

Comment: A number of respondents did not agree with limiting the term of a private gas well licence to 10 years. Some thought it should be longer than 10 years; others thought that there term should not be limited at all. There was a general concern that the licensing conditions will be different in 10 years time and wells that had previously received a private licence would no longer qualify.

MNR Response: The policy has been changed so that licences will be eligible for a 10-year renewal upon expiry. The 10-year renewal is subject to an evaluation confirming that the well continues to meet the requirements expressed in the policy.

9. Transfer of Licence

Comment: Most respondents agreed that a private well licence should be transferable to a new land owner. One person suggested that the requirement for an evaluation prior to transfer be waived if the well had recently been evaluated.

MNR Response: The well licence will be transferable without the requirement for a new evaluation if the well owner can provide proof that the well had been evaluated within the last year.

10. Safeguards

Comment: The policy requires that methane detectors be installed in buildings being supplied gas from a private well and that barriers be built around a well with the potential to be struck by a vehicle. Although several respondents recognized methane detectors would improve safety for those using the gas, it was felt by some that that it was not within the MNR’s authority to establish such a requirement. Several respondents supported the requirement for barriers to protect the well where there was potential for a vehicle to collide with the well.

MNR Response: The safeguard section has been reworded to recommend the installation of methane detectors and vehicular barriers as a “best practice”.

11. Incentives

Comment: Many respondents who commented on the proposed incentives thought that the MNR should pay the entire cost of upgrading or decommissioning a well. One commentor suggested that the MNR pay for half (50%) of the well operator’s cost to become compliant. Another commentor did not support the use of government resources to upgrade or decommission private wells.

MNR Response: The MNR has decided to proceed with incentives to help well operators meet the requirements established by the policy.

Tuesday, September 18, 2012

NEB Decommissioning - Pipeline Abandonment without landowner participation

Recently I wrote about an application filed by TransCanada Pipelines Limited for the "decommissioning" of part of its NOVA pipeline system in Alberta.  The National Energy Board (NEB) has created a category of "decommissioned" for pipelines permanently removed from service, but in situations where service on the "pipeline" system continues (i.e. customers are not affected).  The responses to information requests issued to TransCanada by the NEB reveal the dangerous position into which this "abandonment but not abandonment" places landowners.

Essentially, TransCanada is abandoning its pipeline in place.  However, since there is no abandonment application required under Section 74 of the NEB Act, there does not need to be a public hearing and there does not need to be landowner participation in the decision-making process.  Even if there was participation available, landowners would have no access to participant funding from the NEB; this is not one of the types of applications for which funding is made available (much like the ongoing abandonment cost estimate hearing process in which landowners must fund their own participation).

Read TransCanada's responses to the information requests at: NOVA response.

Friday, September 14, 2012

Landowner Information - Protection of Butternut Trees (Ontario)


Here is a useful information sheet from the Forest Gene Conservation Association on the protection of butternut trees (an endangered species) in Ontario: Butternut Info for Landowners.
 
As noted recently by a reader, planted butternut trees (i.e. not naturally occurring) are not protected unless they were planted as a condition under an Endangered Species Act permit.

Monday, September 10, 2012

Farmer chasing ATV trespassers acquitted of dangerous driving

From the Judgment of Justice R. Green of the Provincial Court of Saskatchewan:

A farmer was charged with driving in a manner dangerous to the public on Church Road in the Rural Municipality of Fertile Belt, contrary to s. 249(1)(a) of the Criminal Code.  The farmer is now 54 years of age and works for a neighbour. He farmed his own land in the past, but now leases it. On October 3, 2010, in the latter part of the afternoon, he was helping the neighbour fix his combine. He heard some All Terrain Vehicles (ATVs) being operated in the distance, on a field he owned. These ATVs were being driven by three young males who were at the time they came to the farmer's attention driving around in mud on his field, which was to the south of Church Road.

The farmer took the neighbours 4x4 truck and drove, in 2-wheel drive on Church Road and then south into his field where the ATVs were.  At that point, the ATVs scattered.  The farmer followed one of the ATVs over Church Road and back north into another of his fields, in which a crop of canola had just been swathed.

A police constable arrived on the scene at 4:36 p.m., and found the ATV wedged under the front driver’s side bumper of the truck.  The farmer was seated in his vehicle. After attending to the young male ATV driver, and viewing the scene, the officer arrested the farmer at 5:08 p.m. for dangerous driving.

The Crown submitted at trial that the farmer chased after the young male on Church Road and rammed his ATV.   The farmer claimed that, as he pulled up beside the young male on Church Road, the young male accelerated his ATV and swerved into the truck and turned in front of it.  He said, as this was happening, he slammed on his brakes and skidded in a straight direction for a number of feet.

Ultimately, the Judge stated, the issue was not whether he is satisfied beyond a reasonable doubt that the collision on Church Road happened as the farmer described, but rather whether it is possible that it did.   Considering: (1) his finding that it is possible the farmer was travelling as slowly as 35 to 40 kilometres per hour on Church Road when he collided with the ATV; (2) the lack of any expert evidence on accident reconstruction of what happened between the two drivers on Church Road; and (3) the reality that the young male was an inexperienced ATV driver who admitted he may have swerved before the truck reached him, the judge concluded that it is possible the collision happened as the farmer described, with the young male swerving into the driver’s side of the truck, the farmer slamming on the brakes and the young male accelerating and turning into the path of the truck. 

With respect to the degree of care exercised by the farmer, the Judge ruled that he was not satisfied that the degree of care exercised by the farmer in driving on Church Road was a marked departure from the standard of care that a reasonable person would have exercised in these circumstances.  Whatever the farmer's liability might be civilly for the collision, the Judge was nevertheless not satisfied beyond a reasonable doubt that his driving was a marked departure from the standard a reasonable person would have observed in these circumstances.

On this basis, the farmer was acquitted of the dangerous driving charge.

Read the decision at: R v Tranberg.

Tuesday, September 4, 2012

TCPL files major decommissioning application with NEB


The NOVA Gas division of TransCanada Pipelines Limited (TCPL) has filed a major pipeline "decommissioning" application with the National Energy Board (NEB).  TCPL proposes to "decommission" in place the vast majority of a 266 km length of pipeline, capping it, filling it with an inert gas, and leaving it to corrode in the ground.  The application is at the following link: Decommissioning Application

Several years ago, the NEB introduced the concept of "decommissioning", which effectively allows a pipeline company to abandon its pipeline in place without having to make an application to abandon.  Where there is no application for abandonment, landowners have no access to participant funding to support their involvement in the approval process. 

Tuesday, August 28, 2012

Injunction granted against importation of fill for "farm practices"

A recent decision of the Ontario Superior Court of Justice begins with the following question: "Is it normal farming practice to alter the topography of lands by the depositing of large quantities of fill?".  A couple had purchased a 108-acre property on the Oak Ridges Moraine through a holding company and submitted to the local municipality a fill permit application to deposit 300,000 cubic metres of fill on the property (approximately 30,000 dump truck loads).  The municipality eventually brought a motion for injunctive relief to stop the unauthorized deposit of fill on the property.

According to the owners, the purpose of the fill was for the purposes of enhancing their ability to farm the property.  This was the position they took in response to the municipality's injunction application. Yet, in an affidavit sworn by the wife in support of an earlier application by the owners to quash a municipal by-law, it was stated that, "we were interested in purchasing the property for the purposes of using it as a "fill site" for clean fill".  The Court noted that in none of the owners' materials in the first application was there mention of any intention to use the property for farming.

In November, 2010, the municipality became aware that the owners were depositing more fill onto the property than was permitted by the applicable by-law.  The municipality issued a compliance order, but the deposits of fill continued.  The Court found that the owners did not comply with any of the orders issued by the municipality.  It also ruled that:
Based on the evidence that was placed before this court I am not satisfied that the depositing of the quantity of fill that has been observed, and specifically the intent of the respondents to ultimately deposit upwards of 30,000 truckloads of fill, in any way remotely resembles a normal farming operation.
The owners had argued that their operation was protected by the normal farm practices legislation.

The Court issued a permanent injunction against the owners restraining them from performing any further site alterations on their property and specifically restraining them from depositing any further fill or altering the grade of the property other than as permitted by a building permit, an agreement with the municipality and the site by-law.

Read the decision at: Township of Uxbridge v. Corbar Holdings Inc. et al.

Monday, August 20, 2012

Trial ordered for pipeline right-of-way abandonment case

Calgary landowner Genstar Development Company applied to the Alberta Court of Queen's Bench remove a right of way held by Plains Midstream Canada ULC from title to its property.  Plains Midstream opposed proceeding on the basis of an application with written materials, arguing that a trial was necessary.

In the 1950's, Cremona Pipe Lines Ltd. constructed the Cremona Pipeline stretching 444 km between Calgary and Sundre.  Cremona had an Easement Agreement with one of Genstar's predecessors in title.  The Agreement provided that it would be binding on all future owners of the land and would remain in effect from May 19, 1956 and "for so long thereafter as [Cremona] may desire to exercise" its rights and privileges.

While the northernmost 314 km of the pipeline remains in operation, operation of the southernmost 130 km was suspended by Pembina Pipeline Corporation (a Genstar predecessor) in 1997; the pipeline under the lands owned by Genstar was removed from the ground.  In 2009, Plains Midstream purchased the line from Pembina, including the rights of way under all lands along the Cremona Pipeline.

In 2010 and subsequently, Genstar asked Plains Midstream to discharge the right of way on its lands.  Plains Midstream responded with an offer to re-route its right of way, but Genstar eventually commenced the court application. 

In reviewing the application materials, the Court concluded that a trial would be necessary in order to have all of the evidence required to answer the legal issues in play: "Given the complex and unsettled legal issues identified above, it is my view that any decision in this case should be founded on complete and nuanced findings of fact resulting from a trial, rather than on a paper record resulting from an originating application."

Read the decision at: Genstar Development Company v. Plains Midstream Canada ULC.

Monday, August 13, 2012

OPA releases final FIT Program Documents


From the OPA:

This is to advise you that the final FIT Program Rules, Contract and other program documents have now been posted on the FIT Program website. The Ontario Power Authority thanks all those who provided comments and submissions on the draft documents. 

The application window for small FIT projects is anticipated to open on October 1, 2012, and remain open until November 30, 2012. If your FIT project is a small FIT project (typically 500 kW or smaller), then you must submit your electronic application form during the application window to be considered under the FIT 2.0 Program. The OPA anticipates awarding 200 MW of small FIT contracts.

The OPA recommends that you review the final versions of the program documents carefully to ensure you understand how the FIT Program has changed. In addition, there have been several revisions made to the draft version of the Rules as a result of feedback received. 

In order to retain their original time stamp, those who had previously submitted a small FIT project application must submit a revised electronic application form during the small FIT application window, followed by a hard copy submission within five business days. New small FIT project applications will also be accepted during this same window. All applications received during the window will be reviewed according to the new FIT Program Rules for compliance and for the prioritization of applications. Where projects have the same number of priority points, the time stamp will be used to determine the order in which projects will be tested for available transmission and distribution capacity. As indicated above, the OPA expects to award 200 MW of small FIT contracts under the first application window for small FIT projects.

Once FIT contracts have been offered to successful applicants, any FIT applications that do not receive contracts will be terminated and their time stamp will be lost. Application Security will be returned.

Pre-existing small FIT applications that are not resubmitted during the first application window for small FIT projects will also be terminated. In this case, the time stamp will be lost and the Application Fee will be returned. These projects can reapply with a new application within the next small FIT application window.

The timing for the large FIT project application window will be communicated once details are finalized.

The OPA has posted a list of questions and answers about the revised program, which can be found here.

If you still have questions about this process after reading the OPA’s website, please contact the OPA’s customer service centre at 1-888-387-3403 or email FIT@powerauthority.on.ca.


Friday, August 10, 2012

Update: Cottagers keep right-of-way over farm, but have duty to repair

I posted in early 2011 about a decision of the Ontario Court of Appeal concerning a lane used by cottagers located on a neighbouring farm (see March 18, 2011).  The Court of Appeal upheld the decision of a Superior Court Judge which ruled that certain cottage owners in Northumberland County had acquired a prescriptive easement over the laneway. The owner of the farm property does not use the lane and did not want to pay for upgrades to the lane. 

In a further ruling, Ontario Superior Court Justice Peter Lauwers has ruled that the cottagers (the owners of the "dominant tenement") "have the duty to repair Sunnybrae Lane that is imposed on them by the common law".  He also ruled that, "the duty is flexible and relates to the conditions on the ground as they appear from time to time."

In other words, the cottagers can use the lane, but it is their responsibility, and not the responsibility of the farm owner, to repair the lane when necessary.

Wednesday, August 8, 2012

NEB asked to fast track Northern Gateway decision

In a letter dated August 7, 2012 to the Joint Review Panel (consisting of three members, two of whom are members of the NEB) hearing the Enbridge application for the Northern Gateway Pipeline, the CEO of the National Energy Board (NEB), Gaetan Caron, has asked that Panel "explore opportunities to submit your report as early as possible prior to the expiry of the time limit."  The time limit reference is to the December 31, 2013 deadline for a report to Cabinet set by the federal government.  Mr. Caron reminds the Panel of this deadline, but also appears to invite the Panel to take active steps to speed up the process.

Read the NEB letter at: August 7, 2012.

MOE seeking accreditation; public can call in to comment

Have concerns about the MOE Investigations and Enforcement Branch?

The Investigations and Enforcement Branch (IEB) of the Ontario Ministry of the Environment (MOE) is seeking an accreditation by the Commission on the Accreditation of Law Enforcement Agencies (CALEA).  CALEA is an international enforcement standards organization based in Virginia, USA that accredits agencies whose systems and directives meet internationally recognized standards for delivering service.

An assessment of the IEB's system and directives against these standards will be evaluated in an onsite assessement conducted between August 12 and August 15, 2012.  During the onsite assessment, assessors will provide an opportunity for the public to comment on the IEB's accreditation.  COMMENTS WILL BE RECEIVED IN A PUBLIC CALL-IN SESSION TO BE HELD ON AUGUST 13, 2012.  Members of the public and organizations can comment by calling 1-416-326-4426 between 2 p.m. and 4 p.m. on August 13.  Callers will be limited to 10 minutes and must address accreditation issues.

More information is available at: EBR Notice.

Friday, July 20, 2012

Turning a blind eye: NEB won't consider NTSB Kalamazoo Rupture findings in deciding on Enbridge Line 9 Reversal Application

The National Energy Board (NEB) has released a decision dismissing a motion by the Ontario Pipeline Landowners Association (OPLA) that requested the re-opening of the evidentiary record of the Enbridge Line 9 Reversal Project hearing process to allow the NEB to consider the report of the NTSB into the Line 6B Rupture in 2010.  Although the NEB was "satsified that the synopsis and full report could contain information that is relevant to the Project", it ruled that:
  • it is "mindful that Enbridge and parties, who have fully presented their case, are entitled to a timely decision from the Board";
  • the NEB "was fully aware that this NTSB report would be issued.  Still, the Board commenced its proceeding and conducted a public hearing without waiting for this report.";
  • although the NEB has yet to release a decision on the Line 9 Reversal, "the Board is satisfied that it has conducted a comprehensive assessment against its own set of regulatory requirements and applicable Canadian standards to determine whether Enbridge has the ability to safely construct and operate the Project.";
  • "The Board is of the view that it has all the information it needs to be able to make a final decision on Enbridge's Project."
The NEB's decision begs the question: what harm is there in considering the report of a sister regulator into Enbridge's operational and integrity management systems?  Not only has the NEB declined to postpone its decision on the Line 9 Reversal until it has reviewed the final report of the NTSB, it has declined even to consider the NTSB synopsis that is already available.

Read the decision at: July 20, 2012.

Thursday, July 19, 2012

NEB calls for public hearing re abandonment application; Company withdraws application

Just last week the National Energy Board (NEB) announced a written public hearing to consider an application by Enerplus Corporation to abandon a 2.53 km pipeline that crosses the Alberta-Saskatchewan border.  The Maple Creek Pipeline is a 114.30 mm O.D. line carrying sweet gas from Alberta wells to facilities in the Maple Creek Field in Saskatchewan.  The application proposed to abandon the line in place.  The primary land use along the line is cultivated cropland.

Yesterday, Enerplus wrote to the NEB to withdraw the abandonment application.  The Enerplus letter to the NEB says the decision to withdraw was "as a result of a recent internal review" of the facility.

Tuesday, July 17, 2012

NEB announces end to environmental assessments for most projects

The National Energy Board issued a letter yesterday confirming that projects that previously required an environmental screening assessment will no longer require an environmental assessment under the CEAA legislation.  This change comes as a result of the 2012 Budget legislation, which repealed the Canadian Environmental Assessment Act and replaced it with a new CEAA, 2012.

Environmental screenings were the lowest level of environmental assessment required under the CEAA legislation.  Screenings applied to pipeline projects where no more than 75 km of pipe was "new pipeline", meaning pipeline that is not adjacent to an existing utility corridor or year-round all-weather road.  Most pipeline projects were configured to fall within the screening category and it can be expected that this will continue so as to avoid any requirement for assessment under CEAA, 2012.

Read the NEB letter at: July 16, 2012.

Friday, July 13, 2012

New Ontario MicroFIT Program Rules released


From the Ontario Power Authority:

The final microFIT Program Rules, Contract and other program documents have now been posted on the microFIT website.

A key change from the draft to the final version of the microFIT Rules is on the timelines for the microFIT process. Applicants will be required to seek an Offer to Connect from their local distribution company (LDC) within 30 days of the OPA confirming that their application is complete.  This will be followed by a 90-day period during which the applicant must receive an Offer to Connect. This change is to provide sufficient time for LDCs to process Offer to Connect requests from microFIT applicants.

Existing microFIT applicants (those who applied on or after September 1, 2011) will be subject to the revised microFIT Program Rules and pricing and need to resubmit their applications by August 10, 2012. If they do so, they will maintain their original timestamp, and their application will be processed in the order in which they were originally received. New microFIT applicants will need to be patient, as their applications will not be processed until after all resubmitted applications from existing applicants have been processed.

The final FIT Rules and Contract will be posted shortly, and information on the small and large FIT application windows will be provided when details have been finalized.