PIPELINE OBSERVER FALL 2017 by CAEPLA

PIPELINE

FALL 2017

CANADIAN ASSOCIATION OF ENERGY AND PIPELINE LANDOWNER ASSOCIATIONS

OBSERVER

SOCIAL LICENCE

What is it? And who gets to decide?

OUTCOME, NOT PROCESS Trump administration says no to bureaucracy

PETROLEUM POWER

Letâ&#x20AC;&#x2122;s stop defending pipelines against ignorance

ABANDONMENT ISSUES

Putting a spotlight on pipeline decommissioning CAEPL A .ORG

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Flying solo. We didnâ&#x20AC;&#x2122;t study for the test. Or spend Saturday practicing three-point turns at the mall. But we did fuel the car for this newfound freedom. When the energy you invest in life meets the energy we fuel it with, independence happens.

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CONTENTS

FALL 2017

CANADIAN ASSOCIATION OF ENERGY AND PIPELINE LANDOWNER ASSOCIATIONS

04 Abandonment Issues 07 America Takes Aim at Pipeline Permits 08 Independent Construction Monitors 10 The CAEPLA Q&A 14 Stop Defending Pipelines 16 Pipeline Decommissioning 17 Who Ya Gonna Call? 20 Biosecurity Done Right 22 Property Rights Trump Green Politics 25 The Safe Community Program 26 Power Corrupts Manitoba PCs 28 Soil Health After Pipeline Disturbance 32 The NEB and the Duty to Consult

Pipelines are aging—some faster than others

Trump administration focuses on outcomes

An evolution in land management

Social licence—what is it, and who grants it?

Instead, ignore the few who long for the Dark Ages

Inching closer to the respect of property

Surface Rights Act a giveaway to mineral owners

Alberta company treats your land like its own

Oil and wildlife never mix—or do they?

Small towns win with Enbridge investment

MLA pledged to protect property rights

You can rehab land value and productivity

Cover photo: Alamy Stock Photo

“We support pipelines for moving petroleum products—but we also want to ensure the livelihood of our farms and the land.”

Are landowners ignored in favour of a veto for First Nations leaders?

34 36

NEB and Traditional Aboriginal Knowledge

39 41

Why Does CAEPLA Like L3RP?

Culture and spirituality preempt property rights

Canadian Pipelines Deliver Safety CEPA’s Integrity First helps ensure zero significant incidents

Because the project reflects landowner priorities

Often Imitated, Never Duplicated

Construction monitors look out for landowners

Pipeline Observer is a publication of the Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA), 257, 918 Albert St., Regina, SK S4R 2P7; 306-522-5000. All contents copyright ©2017 CAEPLA. Advertising information: advertising@caepla.org | Editorial: editor@caepla.org Administration: admin@caepla.org | caepla.org | Twitter: @CAEPLA

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B Y D AV E C O R E

Abandonment Issues Pipelines are aging—some faster than others

estern Canada is facing a deluge of abandoned “orphan” wells— energy infrastructure left behind, but not remediated, by short-sighted companies that did not budget for abandonment or failed before their pipe did. Alberta recently announced it will lend $235-million of taxpayer money to the Orphan Well Fund, while Saskatchewan looks to Ottawa to finance cleanup of its deserted wells. Most people have a pretty good idea what happens when a gas station is abandoned. Such lots often lie vacant

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for decades, as they are considered unsuitable for human occupation. Abandoned gas stations tend to diminish neighbouring property values and can contribute to urban blight. It is much the same with energy infrastructure in Canada’s rural farm districts. This will be a topic for debate as the first major pipeline-abandonment application in Canada happens this year. But are landowners, industry and the federal regulator ready? That abandonment is being seriously considered at all by the National Energy Board (NEB) is due exclusively to CAEPLA’s advocacy. The subject is just now on the radar in the United States, where the potential impact on landowners and government budgets is huge.

A little background: It was in 2002 that CAEPLA invited the NEB out to Sombra, Ont., to the Ron Kerr farm to discuss pipeline landowner concerns and changing farm practices. Ontario Pipeline Landowner Association (OPLA) president Marg Vance made a presentation on the eventual abandonment of existing pipelines and recommended the establishment of a fund to cover those costs. NEB chair Ken Vollman responded that day saying the issue of abandonment, and a fund to deal with it, had been suggested before but wasn’t feasible. Interestingly, a number of years later when preparing for a hearing, we came across a research paper on those

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very subjects (Discussion Paper on Negative Salvage Value, 1985) that Vollman himself had authored as an engineer working for the NEB. That paper—created in response to pipeline companies seeking increased tolls for a fund to cover costs of abandonment—suggested large-diameter pipelines should come out of the ground at abandonment and a fund should be created to pay for the work. Unfortunately, the study was immediately shelved and its author, as chair, went on to ignore the issue for many more years. Flash forward to 2008: CAEPLA negotiated a win-win business agreement for 400 landowners on the Enbridge Alberta Clipper and the

“That abandonment is being seriously considered at all by the NEB is due exclusively to CAEPLA’s advocacy.” Southern Lights pipelines that included an abandonment clause. It was only then that the NEB, with its new chair, Gaetan Caron, realized it could no longer ignore this pressing landowner issue. As a result of these agreements and CAEPLA’s activism, the NEB did what regulatory bureaucracies do best—it reacted. A hearing on abandonment and a fund to cover it was held. The NEB then established a fund, saying its goal was to ensure “landowners will not be liable for costs of pipeline abandonment.”

Unsurprisingly, the NEB held the fund hearing without any real-world understanding of pipeline abandonment and its potential liabilities or costs. Little to no independent research had been done. The NEB had no idea what it was funding, and still doesn’t. CAEPLA and our member associations have spent hundreds of thousands of dollars hiring experts and lawyers to study the potential results of pipeline abandonment, and have provided that evidence at NEB hearings.

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That evidence proves the NEB’s policy of collecting funds to cover only 20 per cent of the removal of the pipelines is irresponsible and undermines its stated purpose where landowners are concerned. This year, CAEPLA is again participating in the board’s Abandonment Cost Estimate (ACE) Review, an extension of the original hearing. For any problem, CAEPLA always tries to find a business solution that works for both landowners and industry. Similarly, responsible companies that understand how to build relationships in the market and with the public will likewise be seeking business solutions. And CAEPLA is here to help landowners and companies come together in win-win business agreements. The alternative is a default to a regulatory regime that has always been a win-lose scenario for landowners, and is increasingly a dead end for industry. Already there are examples of industry taking a new approach. In its Line 3 Replacement Pipeline application to the NEB, Enbridge aimed to decommission the old pipeline. The landowners CAEPLA represented in negotiations on the project were very concerned about decommissioning and what it meant as a precursor to abandonment. Legitimately worried landowners felt there were still too many unknowns when it came to corrosion and structural integrity to simply okay the decommissioning of a pipeline—which would surely lead to abandonment-in-place. Happily, Enbridge took landowner concerns seriously. Now, CAEPLA and the company are overseeing independent, in-depth research on the integrity of decommissioned pipelines. But back to that first-ever abandonment application I mentioned above. Nova Gas Transmission Ltd. (NGTL), owned by TransCanada, has applied to the NEB to abandon the 266-kilometre Peace River Mainline Pipeline.

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NGTL seeks to abandon 257 km of the pipeline in place with only nine km being removed on treaty lands. A number of non-treaty landowners have requested that NGTL remove the pipeline from their property, too, but no luck so far. So TransCanada has an opportunity here. Ideally TransCanada, like Enbridge before it, will see the business benefits in coming to a constructive agreement on abandonment with their landowner partners.

The fact is that today’s pipeline company executives did not create the abandonment challenge we now face. But a commitment to cooperate with landowners today can pave the way for the technological solutions of tomorrow.  Dave Core is founding president and CEO of the Canadian Association of Energy and Pipeline Landowner Associations. Dave has been active in the pipeline landowners movement for nearly three decades.

BY SEAN CORBETT

tape from waiting times that can take up to a decade. The usual opposition voices warn about climate change and sea-level rise. They cry about the risk of lowering strict building standards. Meanwhile, the Executive Order makes clear that environmental protections will be maintained. The message from the Trump administration is that the focus should be “more on decisionmaking and good environmental outcomes rather than bureaucratic process.”

Canadian producers left in the dust?

America Takes Aim At Pipeline Permits

Facing page and this page: iStockphoto.com

Trump administration focuses on outcomes, not bureaucracy

n August, U.S. President Donald Trump signed an executive order to increase the efficiency of infrastructure projects. This includes energy infrastructure, and it means a shorter time horizon for the issuing of oil and gas pipeline permits. The name of the order is Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure. Along with expediting the Dakota Access and Keystone pipelines earlier in the year, it shows the administration’s focus on freeing the energy sector from paralysis caused by endless bureaucracy.

In a direct comparison it may seem like Canadians lose. That is, as long as our government continues to value a virtuous image— along with rent-seeking— above all else. Faster environmental reviews Right now, reviews can stretch on for years, across many different agencies. Now a “One Federal Decision” policy is enforced. One agency will take the lead, the others will sign a joint record of decision and all required federal permits will be issued 90 days later. The order sets a two-year goal to process environmental documents for major projects. This shortens the current red

While enviro-hysterics bleat about doomsday, how does this tangibly affect Canadians? On one hand, it is hopeful to have an example that at least pays lip service to unleashing oil and gas development—although in a country that stubbornly prides itself on being anti whatever America is for, even that could be a downside. American oil producers will benefit from increased shipping capacity. And Trump’s focus on American steel for the lines will direct the gravy into other industries as well. Meanwhile, we stay stuck in a spider-web of increasing bureaucracy. So in a direct comparison it may seem like Canadians lose. That is, as long as our government continues to value a virtuous image—along with rent-seeking—above all else. Rent-seeking strategies are all too common in infrastructure work. Bureaucrats are enabled to interfere with projects, the show of safety and oversight masking the very real economic consequences being imposed. This new executive order takes clear aim at the jumble of red tape. Ottawa should take note.  Sean Corbett is a Calgary-based writer and filmmaker. He runs the marketing agency Repria Multimedia Corp.

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B Y D AV E B A S PA LY

Introducing Independent Construction Monitors

New CAEPLA joint venture is an evolution in land management

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What if instead of maintaining a landowner-relations department within a company, an objective third party was hired and managed equally by both the landowners and the company?

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and agents have worked on behalf of oil, gas and mining companies for more than 150 years. While they are an essential element for landowner relations, there is a problem with the underlying premise. Land agents work for the company that hired them—not the landowner. So how can they truly represent the interests of the landowner, either independently or objectively? In the last few years the concept of “social licence” has taken hold as a lofty goal to which companies need to aspire. For many of these companies, particularly those engaged in large oil and gas projects, this concept has felt like a moving target that is unattainable. That said, the idea of social licence remains critically important. It is loosely defined as securing the ongoing approval of stakeholders through a process of generating broad social acceptance. While the term has been overused in recent years, the bottom line in today’s world is that major energy infrastructure projects simply will not be built unless those affected are on board. The principles behind social licence include the beliefs, perceptions and opinions held by the local grassroots impacted by the project. It cannot be bought or negotiated, but rather earned and nurtured. It is rooted in trust and respect.

The shift has forced a fundamental rethinking of what land agents are and how they should be calibrated. Four essential principles have emerged:

For trust and respect to be built, company leaders and their staff must be committed to building a relationship for the right reasons, not just to get a project done expediently. This is a long-term process based on actions, not promises. Details matter, and doing the right thing consistently over time is the “secret sauce” that helps demonstrate commitment.

It is essential that those impacted be supported to organize. This should be done with the full support of the company. It reduces the divide-and-conquer mindset and allows aggregate interests to be harmonized. This creates two strong voices for the purposes of negotiation—the impacted stakeholders and the company. Of course, the regulator remains the guarantor that the overall process has integrity and that the rules are followed.

A neutral and balanced mechanism for interaction must be established to mediate interests and ensure accountability. This construct must be balanced and developed in partnership with both the company and the impacted stakeholders. It must have real power and control to be meaningful.

The landowner’s interests must be represented and protected independently. This is a relatively

new concept. What if instead of maintaining a landowner-relations department within a company, an objective third party was hired and managed equally by both the landowners and the company? This approach reduces any perceived bias and creates truly shared ownership and control. The leap of faith falls to both parties. The company must let go of its intrinsic control and move its land resources to the centre of the table. Conversely, landowners must agree to trust and participate in the process. The good news is that for nearly 25 years, CAEPLA has been championing this approach with great success. What has been missing is a land management company that understands the methodology and can act on the ground as a construction monitor, troubleshooter and liaison for landowner and company. All this changed earlier this year when CAEPLA announced a strategic partnership with Infocus Land Management. Infocus is an Indigenous-controlled Canadian land management company that has been in business for more than 10 years. It is committed to being an honest broker that embraces the model described above, featuring the CAEPLA construction monitor concept. This revolutionary new approach is currently being tested in two places: TransCanada’s Towerbirch project and Enbridge’s Line 3 Expansion project. So far, the partnership is proving how to do things right. To get involved in the future of land management, contact CAEPLA or Infocus Land Management. (infocusconsulting.ca) 

Dr. Dave Baspaly is an experienced corporate leader and a Certified Management Consultant with a remarkable ability to help people increase performance and achieve strategic goals.

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BY BRIAN LEE CROWLEY

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The CAEPLA Q&A

Social licence—what is it, and who grants it? ajor pipeline projects have become few and far between in Canada over the last decade. There are many reasons for the seeming paralysis in the energy transport sector, but one of things preventing new

projects is a relatively new concept: something called “social licence.” On the surface it sounds like a good thing—an incentive for companies to do right by those directly affected by energy transport enterprises. But many are starting to question the legitimacy of social licence, and asking whether something designed to promote approval of pipelines

and other development has instead become a veto. For some insight, Pipeline Observer spoke with political economist and economic policy expert Brian Lee Crowley, who heads up the public policy think tank Macdonald-Laurier Institute. Some of his recent research has focused on the concept of social licence and its consequences for the Canadian economy.

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The entire economy only exists because we have the ability, under strict rules, to build national infrastructure even in the face of local opposition.

Q: You have done a lot of research on social licence and its impacts, and have asked the very good question media and politicians won’t: “Who licenses the licensors?” So, what’s the answer?

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A: No one. Radical SL advocates are self-appointed. Moreover they operate outside the law and the SL they purport to represent is never in fact granted. They are not interested in a disinterested evaluation of projects and the national interest, or an evenhanded treatment for both proponents and opponents. For them the whole point of SL is that it is never granted. Q: How successful has the concept of social licence been in terms of acceptance by governments, and by the general public? A: The ambiguity of SL has won it a lot of support from politicians who like to say, quite incorrectly, that governments can issue permits but only communities can give permission. But then they get in trouble, as Prime Minister Trudeau has done with the intransigent SLers, when they approve major projects like Kinder Morgan in spite of continuing opposition. As long as politicians continue to pay lip service to SL as if it is some kind of veto by local minorities on

projects of national significance, they are storing up major problems for the future.

Q: Is social licence a threat to the property rights of business, investors, landowners and all Canadians? How does it affect the economy? A: Of course it’s a threat to property rights. In practice SL means that vocal minorities may be able to deprive, for example, local landowners of their ability to negotiate mutually satisfactory arrangements with project proponents. More broadly, just ask yourself what would happen if we were trying to build the first transcontinental railway but every local community got to decide whether it would allow the rails to cross its territory? Many communities are crossed every day by trains that never stop there and yet represent risks of collisions, derailments and spills. Could we have built the St. Lawrence Seaway if every community that had to be flooded could have brought the whole project to a halt?

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Q: What is so-called social licence, and when did it become a “thing” where energy and other economic development is concerned? A: Part of the problem with SL is that it means different things to different people. For its originators, it was a simple and understandable desire to get local community support for important projects. Companies want host communities to be broadly supportive and negotiate local benefits to win that support. But once governments and developers started to look for SL, radical project opponents started to realize the power of saying they were part of the community, and they said no. Therefore, SL hadn’t been obtained and the project should not proceed. It became a de facto right of veto, not a balanced attempt to apportion costs and benefits.

Yet the entire economy only exists because we have the ability, under strict rules and subject to environmental and other protections, to build national infrastructure even in the face of local opposition. And beyond the issue of national infrastructure there is the more fundamental matter of the rule of law: democratically elected governments pass laws about how and under what conditions project proponents may be allowed to invest billions of dollars to provide needed infrastructure. Meeting these tests is the true meaning of social licence. If self-appointed minorities can nullify the law through demonstrations and coercion, then the rule of law is dead. Why would project developers, who risk huge sums and need many years of operation to realize a return on that investment, put their money in Canada if public authorities cannot be relied on to enforce the law?

Q: Is social licence a threat to democracy, and do special interests in fact see it as a substitute for property rights and democracy? A: If SL means, as originally intended, that major-project developers must seek to conciliate local opposition through negotiation with the communityâ&#x20AC;&#x2122;s representatives to ensure the creation of reasonable local benefits, who could possibly object? It is when SL becomes seen as a right of absolute veto wielded by implacable opponents with the objective of preventing development carried out in accordance with the law of the land that it becomes nothing less than mob rule and a real threat to democracy, the rule of law and property rights. We will find out soon enough who has the upper hand. If faced with, say, hundreds of protesters chaining themselves to construction equipment

on the Kinder Morgan project, will Ottawa send in the police or capitulate? A very great deal hangs by the answer.

Q: Many politicians and activists opposed to pipeline and other projects seem to defer to First Nations to issue SL, or more often, veto a project. This deference seems based on the idea Indigenous Canadians know more or care more than others about the environment. Is this true? And is SL also ultimately a threat to property rights and greater independence for First Nations communities? A: Some people may feel that their superior environmental sensitivity is the justification for the role Indigenous people are now accorded, but this is incorrect. The Supreme Court of Canada has ruled that where decisions affect the interests of Aboriginal communities, the governments responsible have a duty to consult them and to do their best to accommodate those interests. The Supreme Court has repeatedly made clear, however, that this duty to consult and accommodate is not a right of veto for Aboriginal communities and that governments, having properly consulted, retain the power to act in the national interest. The great problem with this legitimate right of Aboriginal people, arising from treaties and Aboriginal rights and title, is that we are still feeling our way on all sides to how it should work in practice. This additional confusion and uncertainty has been costly, including for the many Indigenous communities who favour development and have seen opportunities wither from such delays. Accommodating legitimate Aboriginal rights and aspirations in our approval processes is one of the greatest challenges we face in the natural resource economy today. î Ź

Brian Lee Crowley is the Managing Director of the Macdonald-Laurier Institute, the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government. For more information, contact Mark Brownlee, communications manager, at 613-482-8327 x105 or mark.brownlee@ macdonaldlaurier.ca.

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BY TIM MOEN

Stop Defending Pipelines Instead, letâ&#x20AC;&#x2122;s ignore the privileged few who long for the Dark Ages

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“I am constantly irked when industry defends itself against people who want to make dealing with a harsh environment more difficult for their fellow humans by blocking pipelines.”

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or most of human history, life was brutish and short. People died of tooth decay, starvation, cold winters, hot summers, infections, disease and dirty water. They toiled from before the sun came up until after the sun went down just to try to find enough calories to keep from dying. For most of our history we were at war with our environment and each other. This all started to change with the industrial revolution and the development of the energy industry. Oil and gas carried by pipelines have dramatically improved the environment humans live in. We have heat in the winter, air conditioning in the summer, clean water, medicine, hygiene and an abundance of food waiting for us at the grocery store. Royalty of yesteryear would be jealous of us. We have transformed and harnessed nature to create a better world. Most of us haven’t lived through famine or drought, or had to huddle with each other by the fire through a long winter trying not to freeze to death. For this reason, I will cut environmentalists some slack—they come from lives of relative privilege hard won by men and women who faced real adversity and overcame it with ingenuity, entrepreneurship, hard work and the harnessing of resources. I will avoid seeing anti-energy and anti-pipeline activists as anti-human hypocrites who cut down the very pipelines that give them the position of health, leisure time, security and safety from which to attack the foundation they stand on.

This is why I am constantly irked when industry defends itself against people who want to make dealing with a harsh environment more difficult for their fellow humans by blocking pipelines and taxing and restricting energy. Most of these people cite climate catastrophe as their reason to restrict energy production and consumption. They seem oblivious to the fact it was the liberation of energy that solved climate catastrophe for humans in the first place and brought us out of the Dark Ages. Industrialists, capitalists and the men and women doing the hard work of keeping Al Gore’s lights and AC on should not forget that they hold the moral high ground when it comes to the environment for humans. They are the ones taking environmental action, they are the ones lifting humanity out of the dirt and squalor of our natural state. They do not need to defend themselves against anti-human hypocrites—it’s the other way around. It’s time to stop defending pipelines and start reminding people that pipelines are saving us from a catastrophic climate. That industry is improving the environment for humans, that innovation and even cleaner energy are on the horizon when we commit to liberating energy. It’s time we stopped paying attention to the privileged minority who want to throw a wrench into the machinery that brought us out of the Dark Ages. It’s time to make them defend themselves for their anti-human position.  Tim Moen grew up on a farm in Northern Alberta. Leader of the Libertarian Party of Canada, Tim is also a public speaker, filmmaker, businessman, and a firefighter/paramedic.

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BY SEAN CORBETT

PIPELINE DECOMMISSIONING Inching closer to the respect of property

hat should happen when a pipeline stops being used, and who should be responsible? It’s a heated topic. A possible two-way discussion between landowner and energy company is further complicated by the presence of the National Energy Board. The NEB regulates all pipelines that cross provincial or federal borders in Canada. At first glance, the landowner looks to the NEB for protection. Yet fulfillment of NEB rulings often falls short of the landowner’s ideal. At that point the energy company throws up its hands to say “well, we did what we had to do.” With decommissioning, rather than abandonment, we inch closer to a tenable position for the property owner.

A decommissioned pipeline remains the company’s responsibility forever Abandonment is exactly as it sounds: a company taking advantage of the NEB’s extinguishment of property rights to walk away from inactive pipe. In comparison, a decommissioned line requires monitoring as if it were active. The energy company must first seek

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approval from the NEB to decommission the line. Once granted, oil is removed from the line. Then its internal walls are cleaned. The pipeline is physically disconnected from the active system, and in some cases segmented. Enbridge describes how its decommissioning process “preserves (landowners’) peace of mind” long after the pipe is out of use. Enbridge maintains an electrical current that curbs corrosion, does depthof-cover surveys and performs right-ofway monitoring and maintenance.

Stopping short of full pipeline removal It sounds good to hear a company say it is responsible for the pipe, active or not. It feels better to have that backed by the NEB. But why not go to full removal—as is probably done on companies’ own property? The official line, sung by energy companies and the NEB alike, is that decommissioning minimizes the effect on communities and the environment. It reduces the risk of soil stability issues, and it protects existing pipelines from heavy equipment. Some landowners hold concerns over corrosion, ground contamination and loading issues when crossing decommissioned and abandoned pipes. Enbridge shows independent engi-

neering research and analysis in reply. It says that the rate of corrosion is slow, occurring gradually over centuries. There is clearly still some disconnect between the parties involved.

Bypassing the NEB for better dialogue Enbridge continues to take a proactive approach with landowners and associations like CAEPLA. Recognizing the concern over the aging Line 3 replacement project, Enbridge agreed to fund third-party research to consider alternative methods. Through a “blinded” process the University of Calgary was selected by CAEPLA and Enbridge. In the negotiated agreement with impacted landowners, Enbridge provided funds up front to cover costs of CAEPLA’s independent oversight and consultants. Finally, Enbridge has given a prepayment to landowners, to be applied in case of future decommissioning or abandonment damage. This is a hopeful development, but far from a final result. In an ideal world, landowners and companies would negotiate the safe and restorative removal of decommissioned pipe. It may yet go this way if the research evidence supports it.  Sean Corbett is a Calgary-based writer and filmmaker. He runs the marketing agency Repria Multimedia Corp.

BY STEPHANIE FRADETTE

If you want free use of other people’s property,

WHO YA GONNA CALL? The Saskatchewan Surface Rights Board

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Unbalanced Surface Rights Act is a giveaway to mineral owners

wning property beneath somebody else’s property— with no access—is far from ideal. It’s like owning a room in someone’s basement, but not being allowed through the door. This is the problem the Saskatchewan Surface Rights Act (SRA) is supposed to solve

for mineral owners. At the least, the Act should ensure that the mineral owner can access and extract his product from the ground. But it’s doing much more than that. The SRA grants rights of entry to the mineral owner that enables far more than just exploration and extraction. The Act grants rights of entry for storage (tank farms), processing (battery sites), waste disposal (injection wells), water wells and transportation (flowlines). The SRA stretches far—re-

ally far—beyond protecting the mineral owners’ property rights to transferring wealth from the landowner to the mineral owner. How so? Once the mineral owner has his mineral on the surface with access to a public road, his property rights have been fulfilled. He has unimpeded access to his property. And he can transport it freely with trucks, just as the landowner can move his property (say grain or livestock or milk) freely.

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Landowners, better than anyone, know the frustration that goes along with losing control of their property. They do not wish this for mineral owners.

But according to the SRA, that’s just not good enough. If the mineral owner cannot move his product quickly enough, he needs extra storage. He could work out an agreement to purchase a parcel of land or sign a rental agreement with the landowner, but there is no need. The SRA can grant access to additional private property to build a tank farm or storage facility. The landowner cannot say no.

No need for agreement Now the mineral owner is able to increase the value of his product by processing it. For this he needs a battery site. Once again, he could purchase land for his factory site or work out a rental agreement with a landowner, but there is no need. The SRA can grant access to more private land for the mineral owner to build his production

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facilities. The landowner cannot say no. Water is necessary in oil production. As it is in most industries, including agriculture. In ag, if a landowner needs water, he has to develop it on his own land. He cannot simply develop it on his neighbour’s land. He cannot put a flowline in across his neighbour’s land to move water. But a mineral owner can. Right of entry exists for the development of water wells if it’s needed for drilling, completion or production. If a mineral owner wants a water well, the landowner cannot say no. With production comes waste. Some oilfield waste can be pumped back underground for storage into injection wells. This is yet another land use for which the mineral owner can be granted right of entry. The landowner cannot say no. (It is interesting to note that at the time the SRA was written, solid oilfield waste was typically land-spread.

Disposal pits did not exist. As a result, disposal pits were not included in rights of entry. Solid waste disposal pits have become a lucrative business opportunity for many people.) Now, if the mineral owner wants to move his product more cheaply or efficiently (say by pipeline), the SRA can grant right of access across the landowner’s private property for the construction and operation of a pipeline/flowline. You guessed it: The landowner cannot say no.

Granting access to private land As you can see, the SRA does a bangup job protecting the mineral owners’ property rights. A mineral owner does not have to worry that his access will be hampered. He also doesn’t have to worry about building relationships and partnerships to expand or improve his business.

If he needs more land to store, process, dispose or transport his materials he doesn’t need to deal with the landowner. He doesn’t need to buy or rent land. He can go to the Surface Rights Board and be granted access to private land for his business operations. The landowner can make his case. He can present reasons, evidence and arguments in hopes that the board will rule in his favour. He can be right. But the landowner cannot say no. The Surface Rights Act protects mineral owners’ rights and goes one better by granting them the use and enjoyment of other people’s property.

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Time for a review The original Saskatchewan Surface Rights Act was implemented in 1968 (almost 50 years ago) and was last revised in 1978. A lot has changed since then.

Directional drilling is a common practice. It can be argued that with technological advances like directional drilling, right of entry doesn’t need to exist at all. It is reasonable to expect that most, if not all, projects would move forward smoothly without any right of entry. That said, we don’t need a full swing of the pendulum to where mineral owners’ property rights are compromised. And, that upstairs/downstairs neighbour relationship is tricky. So, maybe a third-party resolution system is necessary to protect the mineral owners’ access. Landowners, better than anyone, know the frustration that goes along with losing control of their property. They do not wish this for mineral owners. Landowners do not want to hijack or prevent development. They want to partner in and benefit from develop-

ment. They, like the mineral owners, want to profit from owning property. Landowners have been compromised by this government-facilitated land grab for far too long. There needs to be a realignment between mineral owners and landowners. Landowners’ property rights can no longer be neglected in favour of the enrichment of mineral owners. The Saskatchewan Surface Rights Act is due for a review. A real review. It would be an opportunity for mineral owners to recognize who their future business partners could be. It would be an opportunity for property rights to actually have true meaning in Saskatchewan. 

A mother of three, CAEPLA Director Stephanie Fradette farms near Lake Alma, Saskatchewan, with husband Jason.

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B Y P I P E L I N E C O N T R A C T O R S A S S O C I AT I O N O F C A N A D A S TA F F

Biosecurity Done Right

Alberta company treats your land like its own

n 1997, Wade Galloway did what a lot of young farmers do to supplement their incomes during the winters; he started his own company running a welding truck in the Alberta oil and gas industry. Twenty years, three expansions, and six divisions later, Galloway Construction Group Ltd. has evolved into a fully integrated industrial construction company servicing the telecommunication, electrical transmission, oil and gas and road-building sectors. Through the years, hard work, accountability and relationship-building have seen the company through recessions, booms, regulatory changes and changes to the way projects are managed and executed. Relationships in industry mean the needs of clients, the landowners directly impacted by projects, First Nations, communities, staff, suppliers and the land itself are considered. By approaching challenges with the belief that they are opportunities, the company finds solutions that are collaborative. Galloway has come to stand for hard work and innovation, constantly pushing the boundaries of best practices to even better practices. To do

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By approaching challenges with the belief that they are opportunities, the company finds solutions that are collaborative. this, all levels of the organization are encouraged to ask, “Is there a better way?” It means looking at how things have always been done to see what is best left alone and what can benefit from a new process, new technology or new approach. Sometimes the tried-and-true method is still the best. Introductions to established systems need to stand up to make the system better and add value to forthcoming projects. The growth Galloway has experienced over its 20-year history has been a process of expanding an existing services base—taking what the company excelled at—to a logical next level. New services are complementary to existing ones. Innovations are a result of continually asking, “What’s not working?” and “Is there a better way?”

Revolutionizing project access In 2013, what wasn’t working was conventional matting through East Central Alberta’s agricultural heartland on a massive 500-km electrical power line expansion.

The potential for bio-contamination and noxious weeds moving through canola crops, large swaths of wood debris left behind when mats were moved, skyrocketing trucking costs and the onerous task of manually decontaminating mats were challenges. These challenges led ultimately to the creation of a separate matting division and a partnership with Newpark Mats and Integrated Services. Introducing the DURA-BASE® matting system back into Alberta on a larger scale and investing in the research and development of an automated mat washing system has revolutionized project access. In the words of a landowner whose crops were crossed by the power-line project’s right of way, “Galloway took care of the land as if it was its own.” Now more than ever, to reduce footprints and the demonization of development, that should be the mandate for everyone involved and impacted by industry. Because Galloway was begun by a farmer, it will always put landowner concerns hand-in-hand with saving clients time and money. 

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BY SHAWN REGAN

Property Rights Trump Green Politics For some environmental groups, oil and wildlife never mix—except when it comes to their own property

arlier this year, U.S. President Donald Trump announced that his administration would seek to open oil and gas drilling in the Arctic National Wildlife Refuge. The plan, outlined in Trump’s 2018 budget resolution, has reignited a longstanding debate over the oil-rich Alaskan wildlife refuge. “Some places are so special that they should simply be off limits,” Nicole Whittington-Evans of the Wilderness Society said at the time, arguing that the refuge is “too wild to drill” and “has values far beyond whatever oil might lie beneath it.” David Yarnold, president of the Audubon Society, said that drilling in ANWR “would cause irreversible damage to birds and one of the wildest places we have left on earth.” Drilling proponents cite the area’s immense

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energy potential. More than 10 billion barrels of oil could be tapped by developing just a small portion of the 7.7-million-hectare refuge, according to the U.S. Geological Survey—enough to produce 1.45 million barrels per day, more than the United States imports daily from Saudi Arabia. The Trump administration claims that opening ANWR for leasing would reduce the federal deficit by $1.8 billion over the next decade. How are these conflicting environmental and natural-resource values to be resolved? In the case of ANWR, the answer is politics. The refuge is federal land, so decisions about its management are political by their nature. Debates are often characterized as all-or-nothing decisions—either “save the Arctic” or “drill, baby, drill”—and when one side “wins,” another side loses. But what would happen if ANWR were privately owned, perhaps by an environmental group?

“Property rights give owners strong incentives to balance conservation with resource development and resolve competing demands in a cooperative, mutually beneficial way.”

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Creating incentives Take, for example, the Audubon Society, one of many environmental groups opposed to drilling in ANWR. “Oil and birds don’t mix,” says the group on its website. “Drilling is a dirty and dangerous business that has historically always resulted in spills and harmed the environment.” Yet consider how the Audubon Society manages some of its own privately owned wildlife refuges. For nearly 50

years, starting in the 1950s, the group allowed oil and gas companies to drill dozens of wells on its 10,500-hectare Paul J. Rainey Sanctuary, a bird sanctuary in southwestern Louisiana. Why would Audubon allow drilling on its own sanctuaries but oppose it elsewhere? The answer, in short, is property rights. Private ownership creates incentives that often lead to more reasonable outcomes than in the political arena. Property rights motivat-

ed Audubon to consider the trade-offs associated with its management and the opportunity costs of leaving the oil and gas in the ground. Because the group owned the sanctuary, it sensibly weighed the potential benefits of drilling against its environmental costs. Audubon earned more than $25 million in royalties from energy development on the Rainey Sanctuary, and it used those funds to protect more land and invest in habitat improvements on the preserve. “The gas-development activities, closely controlled and monitored by Audubon, offer opportunities to diversify and improve habitat which Audubon otherwise couldn’t afford to create,” said one of the group’s senior vice-presidents in 1984.

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“When environmental groups bear the costs of managing their own lands, their behaviour is often very different from what they advocate on public lands.”

The Audubon Society had every incentive to ensure the drilling was done responsibly. For instance, energy companies had to comply with strict limits on drilling during bird-nesting season. One journalist wrote, “when the cranes punched in, the hardhats would have to punch out.” The group was especially careful to do so because, as one sanctuary manager put it, Audubon’s members “would be very irate if we polluted our own environment, our own land, our own sanctuary.” The Rainey Sanctuary isn’t the only example of Audubon calling for different actions on its private property than on public lands. The group authorized drilling on its Bernard Baker Sanctuary in Michigan as well. For years, an oil well located outside that sanctuary tapped oil and gas beneath its surface through slant drilling, earning the group mineral royalties while also protecting habitat.

Important environmental benefits On public lands such as ANWR, the story is much different. Audubon opposes virtually all oil and gas development on federal lands. The group would receive none of the benefits of saying “yes” to drilling there, so it has no reason to weigh its costs and benefits, even if those benefits could be substantial. One recent study estimated the value of the oil beneath ANWR at $374 billion. With that kind of potential, if the refuge were under private owner-

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ship, even the most anti-development environmental group would be forced to consider what additional conservation benefits could be gained by allowing at least some drilling. After all, it’s possible that a small amount of energy development in one area could help provide even more important environmental benefits elsewhere. As one Alaskan outdoor writer said in response to debates over ANWR, “It would seem of far more environmental concern that Alaska’s ducks and geese have a place to winter in overcrowded, overdeveloped California than that California’s ducks and geese have a place to breed each summer in uncrowded and undeveloped Alaska.” With private ownership, environmental groups would more sensibly assess that trade-off, just as Audubon has, to achieve the most environmental value. Oil and gas production ended on the Rainey Sanctuary in 1999, but Audubon has since considered reopening it to drilling. Other groups such as the Nature Conservancy have also allowed drilling on some of their private lands in Texas, raising millions of dollars to conserve endangered prairie chicken habitat. The conservancy’s efforts, however, have drawn criticism from

some environmental activists who pressured the organization to recently declare that they want to get out of the oil and gas business entirely. Nonetheless, with new horizontal-drilling techniques that allow oil and gas to be extracted from afar and with fewer surface impacts, there is now even greater potential for such win-win arrangements on private lands.

A more sensible approach Property rights give owners strong incentives to balance conservation with resource development and resolve competing demands in a cooperative, mutually beneficial way. When environmental groups bear the costs of managing their own lands, their behaviour is often very different from what they advocate on public lands. The experience of the Audubon Society’s Rainey Sanctuary demonstrates a more sensible approach than can be found in most public land debates today. As Richard Stroup of the Property & Environment Research Centre (PERC) once put it: “Audubon is smart to maintain wildlife habitat while capitalizing on revenue potential—now if only our federal land management agencies could figure this out.” 

— Shawn Regan is a research fellow and the director of publications at PERC. He holds a M.S. in Applied Economics from Montana State University and degrees in economics and environmental science from Berry College. His work has appeared in the Wall Street Journal, Quartz, High Country News, Reason, Regulation, Grist, and Distinctly Montana. Shawn is also a former backcountry ranger for the National Park Service. Shawn can be reached at shawn@perc.org.

BY SEAN CORBETT

How Has the Safe Community Program Helped You?

Small towns are winning with a different kind of Enbridge investment

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ural municipalities face a chronic struggle for resources. Budgets are tighter with a smaller tax base. This is most keenly felt with local emergency responders. Recognizing this, Enbridge started a program in 2002 for towns along their project corridors. Called Safe Community, the program awards grants to first-response services in rural areas. These grants have been available in Canada since 2009. The money can be used to buy safety gear, get training and certification, or further educate the community at large. This is a great example of a corporate public relations move having immediate wide-reaching value. On its face, emergency response would minimize the fallout in case of a pipeline

emergency. But this funding is used by small towns for a wide array of issues that have nothing to do with oil and gas. In Kahnawake Mohawk Territory, Quebec, a recent donation was made to the local fire brigade, which received $12,800 for the delivery of this summer’s pumping apparatus certification course. Previous grants helped pay for courses in vehicle operator standards and hazardous material awareness. As a volunteer force, the Kahnawake Fire Brigade needs all the help it can get. It handles vehicle rescue, brush fires, structural fires and more. With two major highways and CP rail tracks in its territory, anything can happen. Safe Community funding helps areas like theirs to be properly prepared for any emergency. Enbridge provides this funding to areas within a 20-kilometre radius of its pipeline right-of-way, or near its operations.

Organizations qualified for funding include: medical research and infrastructure emergency services health organizations education providers social services agencies environmental and safety initiatives cultural organizations Your local organization can apply by going to the Enbridge website and working through a question form. Apply online at enbridge.com. Just type “apply for funding” into the website’s search bar.  Sean Corbett is a Calgary-based writer and filmmaker. He runs the marketing agency Repria Multimedia Corp.

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BY AMANDA ACHTMAN

Power Corrupts… Manitoba’s Progressive Conservatives

MLA Blaine Pedersen prefers perks of office over pledge to protect farm families’ property rights

wo years ago, MLA Blaine Pedersen rose in the Legislature and said, “I continue to be dismayed by this NDP government’s callous, arrogant attitude toward our family farm operations. The premier and his cabinet, by stealth, ordered Manitoba Hydro to expropriate valuable, food-producing land across Manitoba from hard-working Manitoba farm families without notice.”

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But ever since Pedersen’s Progressive Conservative party formed government in April 2016, it seems that he has ceased being dismayed. Once upon a time, it was Pedersen who forged alliances between landowners and farmers, acting as the staunchest advocate of their interests. And when the NDP was in power, he condemned them for “the constant harassment and bullying of landowners [and for] trying to get them to sign an inferior easement agreement leaving all the risk and liability with the landowners.”

Back in February, the Manitoba Bipole Landowner Committee (MBLC) published an open letter asking: “How can Manitobans trust a premier and a cabinet minister who campaign for property rights in Opposition and then violate them in power?” The letter lamented unanswered calls and emails from the citizens’ committee that had supported Pedersen because of their confidence that he would defend their property rights and freedom of association against encroachments by Manitoba Hydro. After all,

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“Pedersen has gone from being absent to his constituents to more outright abuses of power and violations of ethical standards.”

Blaine Pedersen co-founded the Landowner Committee he decided to ignore once in office. Unfortunately, Pedersen has gone from being absent to his constituents to more outright abuses of power and violations of ethical standards. And disappointingly, both Premier Brian Pallister and MLA Pedersen are failing to listen to Manitobans, just like their NDP predecessors. The crux of the issue is the Bipole III transmission line intended to transport electricity from the Keeyask

generating station. Manitoba Hydro has signed billion-dollar contracts related to these electricity projects that are now delayed, vastly over budget and continue to enrage Manitobans whose land has been expropriated and who have not been treated as business partners in negotiations. Reportedly, more than 100 farm families have had their land expropriated by the province in their ridiculous money-losing power export schemes. Citizens have gotten rotten deals from government, regardless of the political party in power. Having campaigned on reversing the reckless decisions of the NDP, the PCs are continually pointing fingers and blaming the NDP for having made mistakes they claim are “impossible” to fix at this point. Since Manitoba Hydro is a Crown corporation, or a state-owned enterprise, the state seems adamant to defend every disastrous outcome of their cooperative mismanagement of the province’s utility. The latest fiscal report estimates its long-term debt will be an outrageous $16.1 billion, which undeniably corresponds to higher electricity costs for every Manitoban family, business, school and hospital. Graham Lane of the citizen group Manitoba Forward has asked how Hydro and the Public Utilities Board can repeatedly fail to take responsibility for this mismanagement affecting the entire province. He has asked how citizens can abide the lack of a public inquiry into so much recklessness and an utter lack of proper market competition. And he has asked why the Op-

position is silent and why Manitobans tolerate the turfing of MLA Steven Fletcher out of caucus—the one MLA who had the courage to challenge the status quo and to table a conflict-of-interest bill, which his erstwhile caucus colleagues defeated. This is no way to be competitive. This is the path to mediocrity and it threatens an exodus of young people, skilled workers and upstart companies. Is anyone concerned? Manitoba Forward has also raised the alarm that Pedersen is specifically working to defend his own brothers against the province’s rotten deals after having ignored the same plight of non-family members who he was elected to represent. If Manitoba Hydro were a private company instead of a government monopoly, shareholders would be furious. Not only would the rogue utility lose the protection of government, no shareholder would tolerate the destruction of the company’s public relations. Accordingly, taxpayers should be furious at this mess in which politicians and Hydro officials have implicated them. From property rights violations, to silencing both citizen and politician opposition, to conflicts of interest, to endless blame-laying, excuses and denial, Manitobans face an uphill battle against their government’s incompetence. Now, who is going to show up for it? 

Amanda Achtman is associate director, Public Policy and Communications, with Manitoba Forward. She holds a BA in political science and is currently pursuing an MA in philosophy. She has worked at the Frontier Centre for Public Policy, and participated in seminars on economics hosted by numerous institutes, including: the Acton Institute, Mises Institute, and the Foundation for Economic Education.

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BY ANDREA DE ROO

Soil Health in Cropping Systems After Pipeline Disturbance Experimentation proves you can rehab land value and productivity

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50 cow-calf pairs “Land that was once unproductive for crops will now be used as a feed source for 50 cow-calf pairs after harvest of the surrounding crops, further adding value to the farm.”

iStockphoto.com, Farmers Edge

n a previous article, I mentioned our farm’s experience with lessproductive land after a pipeline has been trenched through as illustrated in the image below. Work done by Agriculture Canada in Ontario showed yields on the right of way were reduced by half for two years after pipeline installation, and smaller but significant yield losses were noticeable into the fourth year. The research concluded that soil mixing and compaction on the right of way had negative impacts on crop yields due to the change in the soil chemistry and physical properties. While we support the implementation of pipelines for the transportation of oil products, we also want to ensure the livelihood of the land and our farm stays strong. To amend the negative effects of pipeline soil disturbance, we’ve recently started to experiment with cover crops and intercrops on our farm, in hopes of improving soil health.

and fungi to wildlife, and improving soil quality with organic matter. Cover cropping can seem intimidating, but with adequate research and time, can really improve soil health. Start small, i.e. on the pipeline right-of-way.

Factors to Consider • What do I want to accomplish: to prevent erosion, fix nitrogen, suppress weeds or break up compaction? • Can I make cover crops work with my cash crop: plant after harvest, inter- seeded, or relay cropping? • Are there any limitations or special requirements: drought, season length, or equipment and technology?

Cover crops The principle of cover cropping is to plant crops that cover the ground while providing additional benefits. These benefits could include suppression of pests (disease, weeds and insects), increasing biodiversity from soil bacteria

2017 crop health image of a field with a section of pipeline, installed in 2007, running on the north end.

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Cover crops can be used in-season on unseeded acres or under-seeded in-crop.

The priorities for our cover crop were to increase organic matter and improve water filtration (compaction) using species that cattle could feed on. The blend consisted of collards, ryegrass, radish and clover and was seeded in mid-July. Within three weeks of seeding, the ground was covered and the radish roots were the width of a quarter and up to four inches deep. At the time of this writing, we have not done any evaluations of changes in soil health parameters (fertility, organic matter content and water filtration), but it certainly looks better than weeds and exposed soil. Additionally, this land that was once unproductive for crops will now be used as a feed source for 50 cow-calf pairs after harvest of the surrounding crops, further adding value to the farm.

Intercropping A diverse mix, such as the radish, ryegrass, collards and clover species, supplies different advantages to the improvement of soil health.

Intercropping is a cropping system that involves growing two or more crops together or in close proximity with each other. There are four types of intercropping: row, strip, mixed, and relay.

Phosphorus, potassium and sulphur were applied as recommended by a soil test, but nitrogen application was low to encourage N-fixation in peas. Peas and canola were seeded at 3 bu/ac and 3 lbs/ac, respectively. The two crops compensated for each other in areas that were not best for growth for the other. This made for the best use of space and nutrients in the field. The intercrop had not yet been harvested at the time of this article, but evaluations over the course of the season show significant economic advantages. Minimal in-crop products were used—light fertility and herbicide products only. As a bonus, it is now difficult to distinguish what part of the field was disturbed by pipeline activity. Ultimately, a key component to rehabilitating fields after pipeline disturbance is improving soil health. This can be a challenging task that requires proactive planning and some out-of-thebox thinking, but small changes in-crop can be made to build positive changes over time. 

For more information, check out some growers: Factors to Consider with Intercropping: • Look for compatibility between species: water, fertility and herbicide tolerance.

• Friendly Acres Farms: friendlyacres.sk.ca; Twitter: @KevinElmy • Axten Farms: axtenfarms.ca; Twitter: @DerekAxten

• How easy is it to separate seed?

Peas were able to accelerate in areas with lower fertility with their ability to fix nitrogen from the air, while the canola fared better in areas that were exposed to increased moisture.

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• Our intercrop trial was a mixed intercrop of peas and canola. Selecting a canola variety that would match the input and maturity timing of peas was important. We went with a straight-cutting, Clearfield canola variety that was early-maturing.

—Andrea De Roo, M.Sc. P.Ag, wishes to credit the following sources: Culley, J.L.B., B.K. Dow, E.W. Presant and A.J. Maclean, 1981. Impacts of installation of an oil pipeline on the productivity of Ontario cropland. Agriculture and AgriFood Canada. Government of Canada. Follow Andrea on Twitter @AgKnowledge06.

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• How will the plants affect each other: out- compete, climb or hold each other up?

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BY CK REEDER

The NEB and the Duty to Consult

Are landowners ignored in favour of a veto for First Nations leaders?

anada’s energy-transport sector is encumbered by numerous regulatory hazards, and a new procedural landmine is becoming increasingly problematic: duty to consult. In 2004, the Supreme Court created a “duty to consult” with Canada’s aboriginal peoples for administrative issues—such as issuing permits or

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licenses—where their rights could be affected, even while acknowledging that there is often no clarity about what those rights are in the first place. This decision created a black hole of endless potential lawsuits about whether the duty to consult has been met. Someone can always claim that there was inadequate consultation. On top of this, the Trudeau government has stated that it wants to honour the 2007 United Nations Declaration

of the Rights of Indigenous Peoples (UNDRIP). This UN declaration is, like all the others, non-binding and any government could simply ignore it. But insofar as it is followed, it creates a requirement not just for consultation, but consent. Some have argued that this could provide the political leadership of Indigenous Canadians with veto power over any development thought to even remotely affect them.

“Duty to Consult could provide Indigenous political leaders with veto power over any development thought to even remotely affect them.”

Of course energy infrastructure companies should consult with all directly affected parties, but that’s not the same as shackling industry with more ambiguous requirements that push projects deeper into limbo. Two recent Supreme Court decisions drive home the arbitrariness of this “duty to consult” issue. The National Energy Board, (NEB), approved two separate projects opposed by different local Indigenous groups: natural gas exploration in Clyde River and the Line 9 pipeline reversal. The court killed the Clyde River oil and gas exploration project because there had been “inadequate” consultation with the Inuit community. Meanwhile, in the Line 9 case the court overrode the objections of the Chippewas of the Thames because the consultation was “good enough.” We need to emphasize that these decisions are basically arbitrary. Everything is based on numerous extremely vague requirements such as engaging with “potentially affected” groups (what does “potentially” mean here?), creating a “transparent process” (what counts as appropriately transparent?) and “demonstrating willingness” to make changes (how do you measure willingness?)

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Traditional Beliefs vs. ‘Western Science’ But it gets worse. Two federal panels issued reports this summer dealing with NEB “modernization” and the nature of impact assessments. Both reports call for giving “equal consideration” to the “traditional knowledge” of Indigenous people, which they say warrants the same recognition as socalled “Western” science.

One might first ask what is meant by Western science as opposed to simply science. After all, the principles of science with which we investigate our world and refine our knowledge are supposed to be universal—they are supposed to be valid for everyone, not merely “the West.” But “traditional beliefs” are now supposed to inform administrative procedure, despite the government failing to define them or articulate how they fit into the typical standards of evidence. This is not to say that there are no justified beliefs within the framework of “traditional knowledge.” But many of these traditions are based on spiritual beliefs and unsystematic observations orally transmitted over centuries and infected with confirmation bias. These things are not subject to the standards by which we judge scientific theories. When is “traditional knowledge” actually just a false belief? We would typically answer a question like this based on scientific principles. But if government bureaucrats decide that traditional knowledge is an entirely separate issue with different rules of evidence (or no such rules), it becomes immune to any fair evaluation process. This is especially true in our smothering atmosphere of political correctness, which insulates the ideas of some groups from discussion and criticism. So first we have “duty to consult,” which is characterized by woefully ambiguous guidelines that are totally out of place in a civil society that requires clear rules. Then the consultation requirement opens the door to pseudo-scientific shenanigans that could very well undermine legitimate inquiry into real environmental impact.

Shifting goalposts And in case these considerations seem unfairly dismissive of other interests, we must also raise the question of whether this tangled web will even benefit Indigenous groups in general. It’s no stretch to say that many of Canada’s First Nations and Inuit have very little control over their own affairs. Most of them have no property rights. Their lands are administered by a self-serving bureaucracy in Ottawa, while many band councils act like Soviet commissars who enrich themselves while everyone else struggles. On top of this, actually affected groups of Canada’s Indigenous can be held hostage by the “potentially affected” groups through the ever shifting goalposts of “proper consultation,” even if proper consultation means giving “equal recognition” to superstition and pseudo-science. We have seen this in the endless wrangling over energy projects in B.C. As the decision-making for these projects becomes more and more collectivized, they become more and more uncertain. Uncertainty is a big investment killer, and our governments sure seem like they want to kill big investments in our country that help us contribute meaningfully to the world’s energy needs. 

C. Kenneth Reeder is a Calgary financial analyst providing mergers and acquisitions advisory services for mid-sized, privately held companies in Western Canada. He works with many clients in the oilfield services sector. He is also the editor of CanadianMarketReview.com

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BY AMANDA ACHTMAN

TRADITIONAL KNOWLEDGE

SCIENTIFIC EVIDENCE

‘Modernizing’ the NEB with Aboriginal Traditional Knowledge

Culture and spirituality preempt property rights on pipeline approval his past May, the National Energy Board, Canada’s federal energy regulator, released its report Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future. The 90page document was the product of the Expert Panel on the Modernization of the National Energy Board. In the report, the first reform proposed in the executive summary is with respect to governance: “Ensuring the

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Board’s composition is diverse and has sufficient expertise in relevant fields such as environmental science, community development and Indigenous traditional knowledge.” Indigenous knowledge is a key theme throughout the report. In fact, the term “Indigenous” appears 344 times throughout it. By comparison, the term “landowner” appears 53 times; the word “property” appears three times and the term “property rights” does not appear a single time. Given the stated importance by the experts of traditional knowledge, it is in-

cumbent upon us to be curious about it. What is traditional knowledge, after all? According to the Canadian Environmental Assessment Agency (CEAA): “All cultures have traditional knowledge. In this broad context, ATK (Aboriginal Traditional Knowledge) can be viewed as knowledge that is held by, and unique to, Aboriginal peoples. Although there are many different definitions of ATK in the literature, there is no one universally accepted definition. For this reason, no official definition of ATK has been provided in this document.”

“The term ‘Indigenous’ appears 344 times...By comparison, the term ‘landowner’ appears 53 times, and the term ‘property rights’ does not appear a single time.”

The content of Aboriginal knowledge is, therefore, unknown to us. But since whatever knowledge it is is supposedly known uniquely to Aboriginals, the same government document explains: “Only the community can decide if they are willing to provide access to their ATK. …In seeking consent, (Environmental Assessment) practitioners should work closely with the community to clearly set out who owns the knowledge."

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Distinct, secret knowledge? While First Nations certainly have distinct cultures, is it true that they have distinct, secret knowledge that only they possess? Can knowledge even be possessed? What knowledge of reality could possibly be unique to any single people and inaccessible or unknowable by others? To take an analogy, there exists Italian poetry and Jewish literature but not Austrian mathematics or Catholic physics. Why is this? As Frances Widdowson recently pointed out, “The use of the ‘Western’ adjective in conjunction with science [in the report] is also perplexing in that science is a universal method that can be used, regardless of one’s ethnicity, to increase empirical knowledge and theoretical understanding. To juxtapose and elevate traditional knowledge in this way is to claim that indigenous peoples have unique insights inaccessible to others.” So it should not be considered offen-

sive to ask just how First Nations could be able to “provide relevant biophysical information, including historical information that may otherwise have been unavailable.” It is generally understood that much of traditional knowledge has been handed down orally. As with any culture, oral histories involve an interpretative process of deciding what is most relevant. Culturally speaking, biophysical information as historical data for scientific and environmental purposes does not seem like the kind of thing handed down orally for generations.

Environmental organizations Adding to the ambiguities is the term “duty to consult” which makes appearances throughout numerous legal cases. According to the expert report: “The framework and procedures for determining who is a formal agent of the Crown for the purposes of consultation with Indigenous peoples are unclear, and existing rules are implemented inconsistently. All parties agree that someone must assume this role. We need to decide who that someone is, and move forward.” Indeed, countless delegates are involved in the process for every interested party. On the NEB Modernization website, there is a separate Public Engagement Plan and Indigenous Engagement Plan. The latter includes a quotation from Prime Minister Justin Trudeau. A quick look at the Engagement Summaries on the website reveals the dominant presence of environmental organizations (Pembina Institute, Environmental Defense, toronto350.org, Canadian Environmental Law Association, Dogwood Initiative, Manitoba Energy Justice Coalition, Greenpeace, Council of Canadians, Équiterre, Ecojustice, etc.), over and above either First Nations or industry representation. Not only are there ambiguity, confusion and disagreement over what consti-

tutes Aboriginal traditional knowledge, there is also ignorance about Canadian traditions like property rights, free markets and the rule of law.

Consult the facts Rather than reviewing our tradition of universal human dignity and capacity for knowing reality, free and fair business negotiations and a robust defense of private property, we have a confused concept of consultation and a disorienting “duty to consult.” There is no reason for any knowledge of our environment, or anything else, to be esoteric, secret knowledge. And belonging to a particular culture does not automatically imply that a person has scientific knowledge of reality. Sadly, purported respect for Aboriginal traditional knowledge by bureaucrats and lawyers is too often a misguided form of affirmative action. Aboriginals deserve to be treated as equal partners in scientific inquiry with whom we seek the truth about reality. Since the proper criteria are truth and facts, we should equally reject falsehoods whether they are found in “Aboriginal traditional knowledge” or so-called “Western science.” Likewise, we should affirm truth wherever it is found. This is what it means to treat people as equals. It’s time we stop dealing in unknowns and consult the facts and principles we do know. 

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B Y PAT R I C K S M Y T H

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Canadian Pipelines Deliver Safety and Transparency

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CEPA’s Integrity First helps ensure zero significant incidents

lot has changed since the first Canadian transmission pipeline was built in 1853—a 25-kilometre cast-iron pipe that moved natural gas to Trois Rivières, Que. Increased demand for energy led eventually to the expansion and sophistication of Canada’s pipeline network, which is now one of the safest, most economical and environmentally friendly options in the world for shipping large volumes of oil and gas. Today, 119,000 kilometres of pipeline winds through Canada’s communities, safely delivering oil and gas to heat homes, fuel vehicles and create everyday products that

people rely on. This number is set to grow as members of the Canadian Energy Pipeline Association (CEPA) propose to invest more than $50 billion in pipeline projects in Canada over the next five years. The evolution of the industry has led to significant changes regarding safety, environmental protection and transparency in recent years. CEPA’s members are working together more now than ever before, setting aside competition and sharing information to make the industry better, and to build trust with Canadians. The industry’s unprecedented safety record of 99.999 per cent over the last decade is evidence that the approach is working—but it’s still not good enough. The goal is zero incidents, and until that goal is achieved, there is still work to be done.

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together to collectively strengthen the pipeline industry’s performance and hold each other accountable. In 2016, Integrity First introduced third-party verifications, which add another layer of validation to members’ self-assessments in emergency management. Canadian transmission pipeline operators also invested $22.8 million in developing and deploying innovative technology in 2016. These technologies focused on reducing corrosion, improving pipeline inspection, leak detection and damage prevention—all leading to safer operations.

99.999 per cent of oil and gas Members once again delivered 99.999 per cent of oil and gas products safely, recording zero significant liquid releases in 2016.

In our third-annual Transmission Pipeline Industry Performance Report, CEPA highlights how our members are performing in the areas of safety, environmental protection and socio-economic contributions. The report also looks at the actions the industry is taking to continually improve.

Zero significant incidents Members once again delivered 99.999 per cent of oil and gas products safely, recording zero significant liquid releases in 2016. One significant natural gas release was recorded, which occurred during the maintenance of a natural gas pipeline that was not operational.

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To demonstrate their ability to operate safety, CEPA members conducted in-line inspection runs on about 39,059 kilometres of pipelines in 2016. During these inspections, the inside of the pipeline is examined to identify changes, such as dents or wall thinning, which could threaten the pipeline’s integrity. To inspect the outer walls of pipelines, CEPA members completed 2,696 integrity digs to check for suspected defects and make repairs.

Continuous improvement CEPA continues to advance our flagship program, CEPA Integrity First®, which brings member companies

The industry performance report also highlights the significant economic benefits pipelines deliver to Canadians. Local communities received a $31 million financial boost from CEPA’s member companies in 2016, including $3.2 million for Indigenous communities. CEPA members contributed $1.5 billion to government tax revenue in 2016, money that supports infrastructure and services that Canadians value. There is a dynamic discussion about pipelines playing out in Canada right now, and all Canadians have a role in that conversation. We know that safety and environmental protection are top priorities for Canadians, and that is what the industry is focused on, too. Through continuous improvements and ongoing collaboration, the industry’s goal of zero incidents can become a reality. In the meantime, CEPA will continue to create more awareness about what pipeline operators do 24 hours a day, seven days a week to ensure the energy Canadians use is delivered in the safest and most responsible way.  CEPA’s 2017 Performance Report is available online at pr17.cepa.com —Patrick Smyth is Vice-President, Performance, Canadian Energy Pipeline Association

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Economic impact

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Why Does CAEPLA Like L3RP?

Because the Enbridge replacement project reflects landowner priorities espite all the negative political hype and headlines in recent years, most people are happy to support pipeline projects. You just need to give them a reason. The good news is construction on a new—and long overdue—pipeline project began in August. And Enbridge’s

Line 3 Replacement Program (L3RP) offers plenty of reasons for Canadians to be supportive. The first reason is because pipeline landowners—farmers, ranchers, and other rural property owners living along the Line 3 corridor—like it. More on why this should matter to Canadians in a moment. The L3RP involves replacing 1,660 kilometres of pipeline with a new pipeline that spans from Hardisty, Alberta,

to Gretna, Manitoba, and south from the U.S.-Canada border into North Dakota, Minnesota and Wisconsin. Historically, it has not always been easy for the pipeline landowners’ movement to be happy about new or existing projects. For decades we at the Canadian Association of Energy and Pipeline Landowner Associations, (CAEPLA), have fought for the property rights, safety and environmental stewardship goals of our members.

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And we have negotiated some precedent-setting win-win business agreements with industry over the years. But L3RP is a different story. The project represents the first time CAEPLA has lobbied on behalf of landowners in support of a pipeline project. Why? And why should the Canadian public care? This month will mark the first time in history a major North American pipeline project will roll out in full accordance with landowner values and priorities built into the blueprint. L3RP will be the first pipeline practically “built to spec” for landowners. That’s because after years of calling for replacement of aging pipelines, CAEPLA was pleasantly surprised when Enbridge had a change of heart and ultimately embraced input from landowners. So, what are these “specifications” landowners care so much about and that Enbridge has embraced on this project? Unprecedented safety standards, for starters—safety standards that may well make the new Line 3 among the safest stretches of pipe on the planet.

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No pipeline is perfect. But L3RP sets a new standard for energy transport projects that Canadians can have confidence and take comfort in for decades to come. New 36-inch-diameter pipe, using the latest available high-strength steel and coating technology, will be put in place. Some of the most advanced engineering ever seen on pipelines will also be employed. Additionally, L3RP means state-of-the art, security-enhancing detection tools will be deployed. Together with construction monitors answering directly to landowner committees and a robust, industry-leading biosecurity protocol, everybody living along the Line 3 corridor will gain newfound peace of mind with this project. CAEPLA’s member landowners and their families live and work next to Line 3 on a “24/7/365” basis. Member support for L3RP was overwhelming, which is why CAEPLA last year urged Natural Resources Canada to expedite approval. That means Canadians can put a lot of faith in this project. So much of the scaremongering around pipelines in media and politics

is allegedly based on safety and environmental concerns. Directly affected pipeline landowners across the Prairies can vouch that those concerns have been addressed, and then some. Enbridge has also committed to partner with CAEPLA for ongoing input from landowners as the project completes in phases over the next couple of years. No pipeline is perfect. But L3RP sets a new standard for energy transport projects that Canadians can have confidence and take comfort in for decades to come. 

Dave Core is founding president and CEO of the Canadian Association of Energy and Pipeline Landowner Associations. Dave has been active in the pipeline landowners movement for nearly three decades.

BY ANNETTE SCHINBORN

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CAEPLA’s construction monitors help companies look out for landowner concerns

ne of the items that CAEPLA has negotiated in all its win-win business agreements with companies, both pipeline and power line, is the introduction of a construction monitor (CM) to

provide independent oversight. The CM is there for you, the landowner—and the company will also benefit from having a CAEPLA construction monitor on site. What is the role of the construction monitor and why is this position so important? The construction monitor

represents landowners and is there to ensure that the contractors follow all construction protocols negotiated in the agreement. They have all safety training and permits required to allow them to be on the construction site. They are our “boots on the ground,” so to speak.

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On-site CMs are one more way CAEPLA works to alleviate landowner anxiety and provide peace of mind through the process.

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own businesses and can’t be keeping an eye on construction 24/7. Better yet, this saves landowners having to get safety permits to even be able to set foot on site.

Don’t be afraid to ask questions Even with a CM on the job, we still encourage landowners to be aware of everything happening on their property. Reach out to the monitor overseeing your property and don’t be afraid to ask questions. Even regulators recognize CAEPLA’s success in negotiating for CMs to represent the landowner and ensure construction is done according to the standards set out in the Settlement Agreement. One provincial regulator followed CAEPLA’s lead and ordered the company to use a monitor on a project we weren’t even involved in. But the experts we employ as CMs routinely tell us they prefer working for landowner groups rather than regulatory bureaucrats. That’s because having the settlement agreement in hand helps them remind contractors of the important protocols CAEPLA and the company worked out for everybody’s benefit. Ultimately, it’s all about preserving your soil while strictly adhering to biosecurity. Unfortunately, when it comes to regulators trying to copy CAEPLA’s success, it’s a case of “often imitated, never duplicated.” This means CAEPLA is your ironclad guarantee of full cooperation with and from the company. When the construction protocol process is properly followed both landowners and the company benefit. That’s

what we mean by “win-win.” Ensuring the project is done to the high standards negotiated and knowing the landowners living on the affected land 24/7/365 are happy with the quality of the work can also provide peace of mind to the public. Equally important, the CAEPLA CM benefits the company. We were clearly reminded of this on a project we helped landowners negotiate a few years ago. The parent company of the organization we had negotiated the agreement with sent out its contractors to do the construction. They were answerable to the parent company, not the subsidiary. Even though the contractors skipped protocols the subsidiary supported, they could not avoid the Settlement Agreement the CM held them to. The subsidiary valued having the CAEPLA construction monitor on site and the benefit of ensuring the project was done according to the standards in the Settlement Agreement—with no corners cut. CAEPLA believes in getting energy infrastructure built. Construction monitors working for landowners makes sure it is built right. 

Annette Schinborn is COO and director of Landowner Relations at CAEPLA. Before joining the team at CAEPLA, Annette worked with grassroots nonprofits including the Canadian Taxpayers Federation, the Prairie Centre and the Western Canadian Wheat Growers Association. She has worked closely with farmers, ranchers and other land-owners on issues such as tax and agricultural policy and now energy transport and property rights.

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CMs’ participation at morning planning meetings with the company and its contractors lets them know what work will happen that day and allows them to give the contractors a headsup if there are any special conditions required on a property. Landowners who have concerns or questions about what is happening on their property can first call the CM looking after the “spread” their property is on. Your CM will look to resolve the issue in the field. Anything that cannot be resolved on the ground will then be taken to the Joint Committee, comprised of both landowner representatives and company reps. If any problem persists, a CAEPLA executive will discuss it directly with company execs. It is very rare that any issue escalates, as our new system ensures most are nipped in the bud. On-site CMs are one more way CAEPLA works to alleviate landowner anxiety and provide peace of mind through the process. For example, one morning recently CAEPLA got a call from a landowner member asking about construction activity on his land. He had talked to the company land agent, but wanted to know if what was happening on his property was in accord with the Settlement Agreement. We quickly contacted his on-site CM to get his questions answered. The construction monitor checked it out and called the landowner right back. CAEPLA has negotiated a construction monitor with every win-win agreement we’ve done on behalf of landowners. It’s something that our landowner members on these energy projects value as they are often busy running their

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