NEB confirms that no standards exist for maintenance of depth of cover over pipelines after installation

The National Energy Board ("NEB") has just released its report into its investigation of various whistleblower allegations made against TransCanada PipeLines Limited (read the report here).  I haven't read through the report in full, but I was drawn to the section dealing with inadequate cover over a pipeline.  In its observations, the NEB notes that:

"Other than during the design and initial installation of the pipeline, CSA does not address requirements for maintaining the depth of cover during the life of the pipeline.  In a general sense, OPR section 6.5(1)(e) requires companies to: identify the hazards and potential hazards; assess the risk associated with those hazards; and implement controls to prevent, manage and mitigate those hazards.  TransCanada has recognized the low depth of cover as a hazard, has assessed the consequence of a hazard to be low because the site was in an unused, fenced in pasture area and has mitigated the risk by installing fencing to secure the site."

In other words, there is no regulation in place for NEB-regulated pipelines with respect to the depth of cover that must be maintained over a pipeline.  Once a pipe is installed, it is left to the company to determine what depth must be maintained over a pipeline to avoid potential hazards.  For people who have read through the CSA Standards applicable to pipelines (which requires an expensive licence), this gap in regulations was obvious.  In some cases, landowner groups have successfully negotiated agreements with pipeline companies requiring maintenance of depth of cover over pipelines to a specific minimum depth and requiring the payment of compensation where restrictions on land use are imposed.  But what about everyone else with a pipeline on their lands?

Isn't depth of cover an important enough component of pipeline safety that it should be the subject of specific prescriptive regulations?

Grain Farmers of Ontario v. MOECC decision now available

Grain Farmers of Ontario ("GFO") has now posted a copy of the decision dismissing its challenge of Ontario's new neonicotinoid regulations at its website: 2015 ONSC 6581. GFO alleged that the regulations in their current form would cause irreparable harm to Ontario corn and grain farmers, and asked for a stay of the regulations until May, 2016 or "such time as the requirements of the Regulation can be met."  Justice S.A.Q. Akhtar of the Superior Court heard the case and declined to order a stay.  He also allowed the cross-motion by the Ontario Ministry of the Environment and Climate Change ("MOECC") ruled that GFO's application disclosed no reasonable cause of action. The application was dismissed on that basis.

On review of the GFO application, Justice Akhtar was "of the view that the application is concerned with the economic interests of the affected farmers rather than any property rights.  Prior to the Regulation, the farmers did not have an unrestricted right to use their lands as they wished but were subject to a highly regulated pesticide regime. ... If there is no constitutional challenge or allegation of ultra vires, then what is GFO's aim in making the application? ... In my view, GFO is not asking for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.  It is not the job of this court to pronounce on the efficacy or wisdom of government policy absent the aforementioned constitutional or jurisdictional challenges, neither of which are made here...".

Thankfully for GFO, the MOECC did not seek any costs of the court proceeding against GFO (though GFO will most likely have incurred its own legal costs in the matter).  According to its website, GFO is evaluating its options and says that it has not conceded on this matter.

Federal Court of Appeal split on Chippewas of the Thames appeal of NEB Line 9B Decision

In a split decision, the Federal Court of Appeal has dismissed the appeal of the Chippewas of the Thames First Nation of the National Energy Board's approval of Enbridge's Line 9B Reversal and Line 9 Expansion Project.  At issue in the appeal was the Federal Crown's duty to consult with First Nations - was the NEB required as part of its decision-making process to determine whether the Federal Crown (which was not a party to the NEB process) was under a duty to consult First Nations with respect to potential adverse impacts of the proposed project and, if so, whether it had adequately discharged that duty?

Ryer, J.A., writing for the majority of the Court in dismissing the appeal, found that that the NEB was not required as a precondition to its consideration of Enbridge's application to determine whether the Federal Crown was under a duty to consult (or whether it had discharged that duty) because the Federal Crown was not a participant in the Enbridge application.  Justice Ryer noted that, if the Crown had appeared before the NEB, these issues could have been argued.  However, the Federal Crown did not participate in the NEB approval process.

Justice Ryer then went on to consider whether the NEB itself has the power to undertake and discharge the duty to consult with First Nations on behalf of the Federal Crown.  He noted that it is within the power of Parliament to require the NEB to discharge the Crown's duty to consult, but it has not done so by legislation.  He questions how the NEB could both carry out the duty to consult and then adjudicate on whether or it had adequately discharged the duty.  Yet, in a letter sent by the Minister of Natural Resources concerning the Enbridge project, the Minister suggested that the Federal Government "relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate."

Nevertheless, Justice Ryer concluded that there was no delegation of the duty to consult by the Federal Crown to the NEB.  Therefore, any shortcoming in the NEB's consultation with First Nations could not stand as a reason for setting aside its decision to consider Enbridge's application and, ultimately, to approve it.

Justice Rennie of the Federal Court of Appeal provided a dissenting opinion on the case.  His opinion was that the Supreme Court's 2010 decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council meant that it was not necessary for the Federal Crown to be a party to the NEB proceeding in order for the NEB to be required to rule upon the Crown's duty to consult.  He viewed that decision of the Supreme Court as changing the law on the duty to consult.  As a result, Justice Rennie's opinion was the NEB must review the duty to consult in the context of a Section 58 application (like the Enbridge Line 9B application, which is not subject to final approval by the Federal Cabinet):

The Board must have, and exercise, the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if there is an unfulfilled duty to consult; otherwise the section 58 regime allows for the approval of projects which may adversely affect Aboriginal rights without the Crown ever consulting with the Aboriginal group in question. A project proponent can apply, go through the NEB's hearing process, and receive approval. The Crown can remain silent, on the sidelines. No consultation with the Crown need occur at any point. Indeed, the Crown lacks the statutory authority to prevent an application from being approved by the Board, even if it should want to.

Rennie, J.A. concluded that the NEB should have considered whether there was a duty to consult and, if so, whether it had been fulfilled.  And the NEB should only have granted approval to Enbridge if there was no unfulfilled duty to consult with First Nations.  Justice Rennie would have allowed the appeal.

Given the split in the Federal Court of Appeal on this appeal, this may very well be a case that will be heard by the Supreme Court of Canada.

The full text of the Federal Court of Appeal decision is available at: 2015 FCA 222.

Ontario Court has dismissed challenge to provincial neonicotinoid regulations

I'll post a link to the court decision as soon as I can find a copy.  In the meantime, here is a link to the cbc.ca story: Law to reduce use of bee-killing pesticides upheld in court.

Surplus Farm Residence Severances - Differing decisions from the OMB

Two recent decisions from the Ontario Municipal Board (OMB) have addressed the limits on severing surplus farm residences from larger farm parcels.  In one decision, the OMB declined to allow the severance of a parcel larger than about 1.5 acres on the basis that the proposed severance was not of "a minimum size" as required by the 2014 Provincial Policy Statement (PPS).  The farm landowner had requested a severance of approximately 5 acres from the existing 98-acre farm, including a residence and three accessory buildings.

In the other decision, the OMB approved the severance of approximately 86 acres out of a 102-acre farm.  The parcel to be retained by the owners, who were retiring from farming, contained a surplus residence, barn, and drive shed.  The balance of the farm (the severed 86-acre parcel) was apparently going to be conveyed to another area farmer to be used in conjunction with a larger operation.

These two decisions would appear to be at odds with each other.  In both cases, the applicant landowner was attempting to sever more than the minimum residence plus 1 acre because the severance of a larger parcel made more sense given the actual configuration and development of the property.  However, it is clear that in the case where the OMB declined to permit the larger severance, the OMB held that it did not have the evidence it needed from the landowner to go beyond the "minimum" severance.

Read the OMB decisions at: Simcoe (County) v Essa (Township) and McClary v. Middlesex Centre (Township).