Canadian Energy Regulator Act (S.C. 2019, c. 28, s. 10)

Certain Lands for Which Consent Required

Marginal note:Consent of council of the band

• 317 (1) Despite section 35 of the Indian Act, a company must not, for the purpose of constructing a pipeline or engaging in the activities referred to in paragraph 313(a), take possession of, use or occupy lands in a reserve, within the meaning of subsection 2(1) of the Indian Act, without the consent of the council of the band, within the meaning of that subsection.

• Marginal note:For greater certainty

  (2) For greater certainty, nothing in subsection (1) is to be construed as modifying the application of the other provisions of this Act.

• Marginal note:Consent of Governor in Council

  (3) A company must not take possession of, use or occupy the following lands without the consent of the Governor in Council:

  • (a) Category IA-N land, as defined in subsection 2(1) of the Naskapi and the Cree-Naskapi Commission Act;

  • (a.1) Category IA land, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act; or

  • (b) shíshálh lands, as defined in subsection 2(1) of the shíshálh Nation Self-Government Act.

• Marginal note:Compensation

  (4) If the lands referred to in subsection (1) or (3) are taken possession of, used or occupied by a company, or if they are injuriously affected by the construction of a pipeline, compensation must be made by that company.

Marginal note:Consent of Yukon first nation or Governor in Council

• 318 (1) A company must not, if the Yukon first nation concerned does not consent to it, take possession of, use or occupy settlement land as defined in section 2 of the Yukon Surface Rights Board Act without the consent of the Governor in Council.

• Marginal note:Consent of Gwich’in Tribal Council or Governor in Council

  (2) A company must not, if the Gwich’in Tribal Council does not consent to it, take possession of, use or occupy Tetlit Gwich’in Yukon land without the consent of the Governor in Council.

• Marginal note:Public hearing

  (3) If land referred to in subsection (1) or (2) is to be taken possession of, used or occupied without the consent of the Yukon first nation or Gwich’in Tribal Council, as the case may be,

  • (a) a public hearing in respect of the location and extent of the land to be taken possession of, used or occupied must be held in accordance with the following procedure:

    • (i) notice of the date, time and place for the public hearing must be given to the Yukon first nation or Gwich’in Tribal Council and the public,

    • (ii) on the date and at the time and place fixed for the public hearing, an opportunity must be provided for the Yukon first nation or Gwich’in Tribal Council and the public to be heard,

    • (iii) costs incurred by any party in relation to the hearing are at the discretion of the person or body holding the hearing and may be awarded on or before the final disposition of the issue, and

    • (iv) a report on the hearing must be prepared and submitted to the Minister; and

  • (b) notice of intention to obtain the consent of the Governor in Council must be given to the Yukon first nation or Gwich’in Tribal Council on completion of the public hearing and submission of a report on the hearing to the Minister.

• Marginal note:Compensation

  (4) If the lands referred to in subsection (1) or (2) are taken possession of, used or occupied by a company, or if they are injuriously affected by the construction of a pipeline, compensation must be made by that company.

• Marginal note:Definition of Tetlit Gwich’in Yukon land

  (5) In this section, Tetlit Gwich’in Yukon land means land as described in Annex B, as amended from time to time, to Appendix C of the Comprehensive Land Claim Agreement between Her Majesty in right of Canada and the Gwich’in, as represented by the Gwich’in Tribal Council, that was approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act.

Application

Marginal note:Application restricted

319 The provisions of this Part to determine compensation matters apply in respect of all damage, including the loss of value of the lands, caused by the operation of section 335 or by the pipeline or abandoned pipeline or anything transmitted by the pipeline but do not apply to

• (a) claims against a company arising out of activities of the company unless those activities are directly related to

  • (i) the acquisition or lease of lands for a pipeline or abandoned pipeline,

  • (ii) the construction of the pipeline, or

  • (iii) the inspection, maintenance or repair of the pipeline or abandoned pipeline;

• (b) claims against a company for loss of life or injury to the person; or

• (c) awards of compensation or agreements respecting compensation made or entered into prior to March 1, 1983.

Acquisition or Lease of Lands

Marginal note:Definition of owner

320 In sections 321 to 334, owner means any person who is entitled to compensation under section 314.

Marginal note:Methods of acquisition or lease

• 321 (1) Subject to subsection (2), a company may acquire or lease lands for a pipeline under a land acquisition or lease agreement entered into between the company and the owner of the lands or, in the absence of such an agreement, in accordance with this Part.

• Marginal note:Form of agreement

  (2) A company must not acquire or lease lands for a pipeline under an agreement referred to in subsection (1) unless the agreement includes provision for

  • (a) compensation for the acquisition or lease of lands to be made, at the option of the owner of the lands, by one lump sum payment or by periodic payments of equal or different amounts over a specified period of time;

  • (b) review every five years of the amount of any compensation payable in respect of which periodic payments have been selected;

  • (c) compensation for damages caused by the company’s operations, pipelines or abandoned pipelines;

  • (d) indemnification from all liabilities, damages, claims, suits and actions resulting from the company’s operations, pipelines or abandoned pipelines, other than liabilities, damages, claims, suits and actions resulting from

    • (i) in Quebec, the gross or intentional fault of the owner of the lands, and

    • (ii) elsewhere in Canada, the gross negligence or wilful misconduct of the owner of the lands;

  • (e) restriction of the use of the lands to the line of pipe or other facility for which the lands are, by the agreement, specified to be required unless the owner of the lands consents to any proposed additional use at the time of the proposed additional use;

  • (f) compensation to the owner of the lands if the use of those lands is restricted by the operation of section 335;

  • (g) compensation to the owner of the lands for any adverse effect on the remaining lands of the owner, including the restriction of their use by the operation of section 335; and

  • (h) any additional terms that are, at the time the agreement is entered into, required to be included in it by any regulations made under paragraph 333(d).

Marginal note:Notice of proposed acquisition or lease of lands

• 322 (1) If a company has determined the lands that may be required for the purposes of a section or part of a pipeline, the company must serve a notice on all owners of the lands, to the extent that they can be ascertained, which notice must set out or be accompanied by

  • (a) a description of the lands of the owner that are required by the company for that section or part;

  • (b) details of the compensation offered by the company for the lands required;

  • (c) a detailed statement made by the company of the value of the lands required in respect of which compensation is offered;

  • (d) a description of the procedure for approval of the detailed route of the pipeline;

  • (e) a description of the procedure available under this Part in the event that the owner of the lands and the company are unable to agree on any matter respecting the compensation payable; and

  • (f) any prescribed information.

• Marginal note:Agreement void or null

  (2) If an agreement referred to in section 321 is entered into with an owner of lands before a notice is served on the owner under this section, that agreement is void or, in Quebec, null.

• Marginal note:Abandonment: company’s liability

  (3) If a company serves a notice on an owner of lands under subsection (1) and subsequently decides not to acquire or lease all or part of the land described in the notice, it is liable to the owner for all damages suffered and reasonable costs incurred by the owner in consequence of the notice and the abandonment of the acquisition or lease of the land.

Marginal note:Agreement of purchase and sale

323 Subsections 321(2) and 322(1) do not apply during any period in which an agreement of purchase and sale with respect to the lands referred to in those subsections is in effect between the company and the owner of those lands.

Right of Entry

Marginal note:Immediate right of entry

• 324 (1) Subject to subsection 317(1), if the Commission considers it appropriate to do so, the Commission may, by order, on application to the Regulator in writing by a company, grant to the company an immediate right to enter any lands on any conditions specified by the Commission in the order.

• Marginal note:Notice

  (2) The Commission is not authorized to make an order under subsection (1) unless the Commission is satisfied that the owner of the lands in question has, not less than 30 days and not more than 60 days before the date of the application, been served with a notice setting out

  • (a) the purpose of the right of entry referred to in subsection (1);

  • (b) the date on which the company intends to make its application to the Regulator under subsection (1);

  • (c) the date on which the company intends to enter the lands and the period during which the company intends to have access to the lands;

  • (d) the address of the Regulator to which any objection in writing that the owner may make concerning the issuance of the order may be sent; and

  • (e) a description of the right of the owner to an advance of compensation under section 325 if the order is issued and the amount of the advance that the company is prepared to make.

Marginal note:Advance of compensation

325 If a company has been granted an immediate right to enter lands under subsection 324(1), the owner of the lands is entitled to receive from the company an amount as an advance of the compensation referred to in subsection 327(1).

Marginal note:Vesting

• 326 (1) An order under subsection 324(1) that grants a company an immediate right to enter lands is deemed to have vested in the company any title, interest or right in the lands that is specified in the order.

• Marginal note:Registration, recording or filing

  (2) Within 30 business days after the day on which the order is made, the company must register or deposit the order with the appropriate land registrar and notify the Regulator and the owner of the lands of its deposit.

Determination of Compensation

Marginal note:Determinations regarding compensation

• 327 (1) If a company and an owner of lands have not agreed on any matter relating to the compensation payable under this Part, the Commission, on application by a company or any owner, must, by order, determine that matter.

• Marginal note:Factors to consider

  (2) In determining any matter under subsection (1) for the acquisition or lease of lands, the Commission must consider the following factors:

  • (a) the market value of the lands taken by the company;

  • (b) if periodic payments are being made under an agreement or an order of the Commission, changes in the market value referred to in paragraph (a) since the agreement or order of the Commission or since the last review and adjustment of those payments, as the case may be;

  • (c) the loss of use to the owner of the lands taken by the company or whose use is otherwise restricted by the operation of section 335;

  • (d) the adverse effect of the taking of the lands by the company on the remaining lands of an owner, including by restricting their use by the operation of section 335;

  • (e) the nuisance, inconvenience and noise that may reasonably be expected to be caused by or arise from or in connection with the operations of the company;

  • (f) the damage to lands in the area of the lands taken by the company that might reasonably be expected to be caused by the operations of the company;

  • (g) loss of or damage to livestock or other personal property or movable affected by the operations of the company;

  • (h) any special difficulties in relocation of an owner or their property;

  • (i) any other factors that the Commission considers appropriate in the circumstances; and

  • (j) other prescribed factors that are prescribed under paragraph 333(e).

• Marginal note:Definition of market value

  (3) For the purpose of paragraph (2)(a), market value is the amount that would have been paid for the lands if, at the time of their taking, they had been sold in the open market by a willing seller to a willing buyer.