2017 Harvest

2017 Harvest

Wednesday, December 4, 2013

Is the pipeline provincial or inter-provincial?

Every so often, the question of whether a pipeline is subject to provincial regulation or to federal regulation (by the NEB) comes before the courts.  The issue is now before the courts in Manitoba according to a recent decision of the Manitoba Court of Appeal.  A number of landowners affected by a proposed pipeline filed applications for leave to appeal a decision of the Surface Rights Board of Manitoba to the Court of Appeal.  They then brought a motion seeking to adjourn the leave to appeal applications pending a decision of the Manitoba Court of Queen's Bench regarding a judicial review of the decsion by Mantioba's Minister of Innovation, Energy and Mines (the "Minister") to grant a permit to EOG Resources Canada Inc. (EOG) to construct the pipeline.

The intended purpose of the pipeline, which would cross through the landowners' properties, is to link up to another proposed pipeline that would cross the Manitoba-Saskatchewan border (the "MIPL Pipeline").  The MIPL pipeline project requires approval from the NEB as it is an interprovincial (federal) pipeline.

EOG maintains that, although its pipeline would connect directly to the interprovincial MIPL Pipeline, its pipeline is intended to be wholly within the province of Manitoba.  Therefore, the EOG pipeline would be subject to provincial approval, as was granted by the Minister.  The landowners contest the jurisdiction of the Minister and brought an application for judicial review of the Minister's decision to approve the pipeline on constitutional grounds.

EOG opposed the adjournment of the leave to appeal applications, asserting that a delay would cause it prejudice.  The Court disagreed.  It found that it was not a practical use of judicial resources to have two cases ongoing with respect to the same issues.  It also reasoned that the Court of Queen's Bench proceeding may result in additional evidence necessary to determine the constitutional issue (i.e. the jursidiction of the proposed pipeline).  The Court of Appeal found that these reasons outweighed any potential prejudice to EOG.

Read the decision at: EOG Resources Canada Inc. v. Saskitoba.