Supreme Court dismisses First Nation's appeal of Enbridge Line 9 Reversal

The Supreme Court of Canada released its decision today in the Chippewas of the Thames First Nation (COTTFN) appeal of the National Energy Board ("NEB") approval of the Enbridge Pipelines Inc. Line 9 Reversal Project.  The Court has dismissed the appeal on the basis that a federal board or tribunal can, under certain conditions, provide the process through which the federal Crown discharges its duty to consult with First Nations.  In this particular case, the Court found that the NEB process, in which the COTTFN participated, was sufficient to discharge the Crown's duty.

Read the decision at: COTTFN v. Enbridge and NEB et al.

It looks like Enbridge is back in Court today looking to extend its injunction against Line 9 protesters

I have recently written about Enbridge Pipelines Inc.'s efforts to obtain injunctions against Line 9 protesters (click here).  It looks as if Enbridge is back in Court in London today in what is likely a motion for an extension of the injunction already obtained against protesters a few weeks ago.  If you're interested in observing the motion proceeding, the court docket says it will be heard by Madam Justice Gorman at 2:30 p.m. in Courtroom 14 on the 7th Floor of the London Courthouse at 80 Dundas Street.

Court grants injunction to Enbridge, but is concerned about the right of protesters to be heard

The Ontario Superior Court of Justice recently granted a temporary injunction prohibiting unauthorized persons from entering or occupying an Enbridge Pipelines Inc. valve installation site in Innerkip, Ontario, near Woodstock.  On August 5, 2014, 25 or so individuals had entered the Enbridge work site, occupied it and then refused to leave.  Enbridge brought an ex parte motion for orders requiring the protesters to leave.

The valve installation work is being required by the National Energy Board (NEB) as part of the Line 9 oil pipeline reversal project, and Enbridge alleged that the work is time-sensitive - there is no time to waste in getting the protesters off the site.  Enbridge's evidence provided: "A project of this magnitude involves the organization and deployment of extensive resources and expertise.  The timing and execution of the project cannot be dictated by persons who do not understand or respect Enbridge's safety and operational protocols.  Enbridge cannot proceed with the required and time-sensitive Valve Installation with Trespassers on the site."

In reviewing the motion (in which the only party present was Enbridge), Justice E.M. Morgan commented:

While property rights and economic interests are important in the Canadian legal system, so are rights of expression. I agree that the time, place, and manner of expression can be tempered by competing rights, see Committee for the Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC), [1991] 1 SCR 139, and that generally “[p]ersons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others…” Canadian National Railway v Chippewa of Sarnia First Nation, 2012 ONSC 7348 (CanLII), 2012 ONSC 7348, at para 23. Nevertheless, there must be some reason other than the unilateral claim to property rights to deprive otherwise non-violent protesters the right to be heard.

 

Here there is an economic imperative to the timing of the motion, but there is no safety imperative that created the short timeline and that made notice of the Application impossible. The valve installation has a safety motivation as evidenced in the National Energy Board report, but that is a long term concern due to the upcoming changes in the oil flow, not an immediate one.

Justice Morgan questioned Enbridge about why it had not given notice of its motion to the protesters, given that there was not safety imperative involved.  Enbridge explained that it is faced with adversaries that are difficult to identify - a "shifting group of individuals".  In the end, Enbridge was granted its injunction to permit the expulsion of the protesters, but for a duration of only 10 days.  After 10 days, Enbridge would have to return to the Court either in London or in Woodstock (not in Toronto, where the original motion was heard) to extend the injuction on at least 3 days' notice to the protesters.

With respect to the right to be heard, Justice Morgan stated: "It is important that the protesters’ right to be heard be a realistic one, and that notice of a new hearing date either be disseminated before the protesters disband or be announced in a way that is likely to come to their attention. It is not the purpose of an ex parte injunction to stall the proceedings so that the Applicant’s opponents fade away without being heard in court."

Read the decision at: Enbridge Pipelines Inc. v. Jane Doe.

Enbridge pipelines drive up farm drainage costs

A recent case before the Agriculture, Food and Rural Affairs Appeal Tribunal dealt with a municipal drain affected by three Enbridge pipelines that cross it.  Both the main drain and Branch "A" tiles from the drain cross three Enbridge pipelines (Line 7, Line 8 and Line 9) through manholes that function as siphons.  Siphons are often the only solution (sometimes effective and sometimes not) for the installation and maintenance of tile drains when a pipeline company decides to build through the drainage area. 

The drainage engineer in this situation noted that the siphon reduced capacity in the tiles across the pipelines.  New tiles were to be installed as part of the project under review by the Tribunal; the engineer found that crossing the pipelines at the existing locations would not be feasible without siphons, but that it would be possible to cross underneath the pipelines in higher ground at the "centre location". 

The appeal before the Tribunal dealt with the assessment costs to various landowners.  The engineer had applied a modified "Todgham Method" to calculate the assessments.  He calculated the assessments on the basis of a "natural route" which would have been the assessments if the drains did not have to cross the Enbridge ROW.  He then did a second assessment for the "revised route" based on the presence of the Enbridge ROW and the additional cost to traverse it.  The "natural route" assessment was then modified in conjunction with the "revised route" assessment.

The Tribunal accepted the appeal of one landowner and reduced that landowner's assessment.  The Tribunal found that, in determining the benefit derived by the proposed drainage works to that landowner, it would have been more appropriate for the engineer simply to have made new calculations for the "revised route" rather than modifying the "natural route" calculations (which would not apply because the "revised route" was being used). 

Read the decision at: Re Wakem-Weir Drain.

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.

"Enbridge not telling entire story about pipeline, hearing told": Toronto Star

John Spears of the Toronto Star published an article about the Line 9 Reversal Hearing before the National Energy Board in London that concluded yesterday.  Spears refers to the submissions made on behalf of environmental groups and the Ontario Pipeline Landowners Association (OPLA), which represents landowners along the length of the Enbridge crude oil pipeline corridor in Ontario. 

Read the article at: Line 9 Reversal Hearing.

Enbridge Line 9 Hearing Order Here

Click here to view the NEB Hearing Order for the Line 9 Reversal Project: Hearing Order.

NEB to hold oral public hearing for Enbridge Line 9 Reversal Application

The National Energy Board (NEB) announced yesterday that it will convene an oral public hearing to review Enbridge's application to reverse the flow of its Line 9 oil pipeline through southern Ontario.  The pipeline has been flowing westward since 1999.  When initially constructed in 1975, the flow direction was eastward. 

The Draft List of Issues for the hearing includes the need for the project; the engineering design and integrity of the pipeline, including the potential effects of flow reversal; contingency planning for spills, accidents or malfunctions, during construction and operation of the pipeline; the potential environmental and socio-economic effects of the project; the project’s potential impacts on Aboriginal interests; and its potential impacts on affected landowners.

Financial assistance will be made available through the Participant Funding Program to "applicants who meet the criteria and can demonstrate a need to support their timely and meaningful involvement in the proceeding."

Ontario Pipeline Landowners Association calls for Enbridge hearing

Enbridge Pipelines Inc. is proposing a line reversal on its aging Line 9 oil pipeline that runs through southwestern Ontario.  The Ontario Pipeline Landowners Association (OPLA), which represents landowners along the pipeline route (which also includes Lines 7 and 8), has written to the National Energy Board (NEB) to request a full public hearing process.  OPLA cites among its concerns the facts that Line 9 has thinner walls than Lines 7 and 8 and that the oil product Enbridge proposes to put through the line is more corrosive than regular sweet crude. 

Read the OPLA submission at: Letter of Comment.  OPLA is a member of the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA).

Enbridge files Line 9 engineering assessment

Enbridge has filed an engineering assessment of its Line 9 oil pipeline with the National Energy Board (NEB) as part of an application for approval of a flow reversal.  The assessment addresses risks of internal and external pipeline corrosion, stress corrosion cracking and mechanical damage to the pipeline and provides information obtained from recent investigative digs and associated testing.  Read the assessment at: ENGINEERING ASSESSMENT FOR LINE 9 REVERSAL PHASE 1.

National Energy Board signals that LMCI is the only place to deal with abandonment funding

The National Energy Board (NEB) has issued a letter regarding the Tolls and Tariffs application made by Enbridge Pipelines Inc. for its Line 9 pipeline (located in Ontario).  The application for approval of tolls was originally brought a few years ago by Enbridge, but was dropped when the NEB voiced its intention to deal with the issue of pipeline abandonment funding as part of its hearing.  Following that development, the NEB commenced its Land Matters Consultation Initiative (LMCI) which includes Stream 3 dealing with post-abandonment funding.

Recently, Enbridge has ressurrected its Line 9 tolls application and in a letter issued yesterday, the NEB has confirmed that it will not deal with the abandonment funding issue in its hearing of the application:

In its letter to Enbridge accompanying the Hearing Order, dated 29 January 2010, the Board noted that it would consider whether to add the issue of funding for abandonment after interventions were filed. The Board has now considered the matter and is of the view that funding for abandonment is being appropriately considered through the on-going process that was laid out in the LMCI Stream 3 (RH-2-2008) Reasons for Decision. Accordingly, the issue of funding for abandonment will not be included in the List of Issues to the RH-1-2010 proceeding.

As noted in yesterday's posts on this blog, landowner participation in the LMCI continues to be at the landowner's own expense (as would landowner participation in the Line 9 tolls hearing).

Read the Board's letter at: RH-1-2010 Hearing Location, List of Parties and List of Issues

NEB Issues Hearing Order for Enbridge Line 9 Tolls

The National Energy Board has issued its Hearing Order RH-1-2010 for an application by Enbridge for approval of its tolls and tariffs on its No. 9 Line through Ontario. When this application was initially made a few years ago, the NEB raised the issue of "negative salvage value" of the pipeline, questioning whether the future cost of abandonment of the pipeline should be included in the calculation of tolls currently charged to the line's customers (the companies shipping oil through the line) so as to cover off the expected negative value of the line when abandoned (i.e. the cost of remediation, etc. would far outweigh any salvage value for the pipe). At that time, Enbridge simply withdrew its application for final approval of its tolls and avoided the issue.

Now the Line 9 tolls issue is back before the Board. The Ontario Pipeline Landowners Association (OPLA) has already written to the Board to suggest that the negative salvage issue be put back on the table. In its Hearing Order, the NEB says that it will consider this option once it has set its list of intervenors.

Read the Hearing Order at:
https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=593231&objAction=browse