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In 1990, changes to the NEB Act and the
Pipeline Crossing Regulations were introduced in response to
concerns about pipeline safety. Restrictions imposed by the
Act on federally regulated pipelines include land use
restrictions within a defined “control zone” (also called
“safety zone”) which extends approximately 100 feet on either side
of the pipeline easement (also called "right of way") held by the
pipeline companies.
Within this zone, landowners are required by law:
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To obtain company consent to carry out operations
such as fencing and drainage installation, and any cultivation
below a depth of 12 inches.
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To give several days notice to the companies of any
restricted activity, and companies may take up to ten working days
to approve or deny any request.
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And to obtain company consent
any time the landowner wishes to cross over the pipeline
easement with “vehicles or mobile equipment”. |
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The law prescribes no minimum time in which
a company must approve or deny a request to cross.
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These delays, or modification of
cropping practices to avoid these requirements, interfere
with agricultural operations, increase costs, and cause production
losses. While pipeline landowners were compensated 40 or 50 years
ago for pipeline easements, Core and Kerr and thousands of other
Canadian farmers have never been compensated for the restrictions
later imposed by the NEB.
In 1998, the Auditor General of Canada reported
that:
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About 60% of the present 40,000 km of pipeline
regulated by the Board was constructed more than 20 years ago
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Pipeline incidents per thousand kilometres of
regulated pipeline have increased by 73 percent in the last five
years
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Pipelines, some of which date back to the 1950’s,
are showing the signs of age. Some pipelines may not be
sufficiently deep in the ground, and others are suffering from
stress corrosion and cracking.
By imposing land use restrictions on farmers, the
NEB and pipeline companies are shifting the risk associated with
aging pipelines to the farmer, while the pipeline companies
continue to reap the profits.
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Section 112(1) of the NEB Act
provides that leave of the NEB is required to construct any
facility on, under or adjacent to a pipeline easement, and creates
a thirty (30) metre control zone (“the control zone”) on either
side of a pipeline easement in which leave of the NEB is required
to excavate using power-operated equipment (“power-operated”
appears as “motorisé” or “motorized” in the official
French-language version of the statute) or explosives.
A “facility” as defined at s.2 of
the Crossing Regulations includes, but is not limited to, a
structure, private road, irrigation ditch, drain or drainage
system. The NEB publication “Excavation and Construction Near
Pipelines” explains at page 1 that a “structure” is “anything
built or installed” and includes, but is not limited to a fence,
swimming pool, concrete conduit structure, or a retaining wall.
Pursuant to s.3(b) of the Crossing
Regulations, activities, other than the construction or
installation of a facility, that disturb less than three tenths
(0.3) of a metre of ground below the initial grade and do not
reduce the total cover over the pipe do not constitute excavations
requiring prior leave of the NEB. Any excavation, including
tillage or the installation of drainage tile below a depth of 1
foot on the pipeline easement or in the control zone requires
leave of the NEB (obtaining leave would require making a costly
application to the Board).
Under certain circumstances, leave
of the NEB is not required to construct on, under or adjacent to
the pipeline easement or to excavate to a depth below 0.3 metres
within the easement or control zone. Instead, sections 4(b) and
6(b) of the Crossing Regulations, Part I, provide that landowners
may perform these activities with leave of the pipeline company.
In reality, the NEB wants landowners to ask the companies for
permission. According to “Excavation and Construction Near
Pipelines” at page 21, landowners who seek leave to perform these
activities directly from the NEB “should emphasize the reasons
why” leave is not being sought from the pipeline company. |
