ENERGY |
Alliance Pipeline Ltd. v. Bokenfohr
T-645-01
2003 FCT 641, Hansen J.
23/5/03
28 pp.
Appeal from order of Pipeline Arbitration Committee regarding amount of advance compensation payable to respondents by appellant (Alliance) for acquisition of permanent, temporary easements over respondents' lands for construction of pipeline--Alliance applied to National Energy Board (NEB) for certificate of public convenience, necessity authorizing construction, operation of pipeline--Alliance received approval from NEB for construction of pipeline on November 26, 1998--Under National Energy Board Act, s. 87, pipeline company requiring lands for purposes of pipeline must serve notice on owners of lands, describing lands required by company, details of compensation offered by company for lands--Offer of compensation in notice $900 per acre of permanent easement, $450 per acre of temporary work space--Basis for Alliance's offer of compensation en bloc per acre bare land market value (en bloc market value) of respondents' lands--Alliance made further offer of compensa-tion to respondents for purposes of settlement, easement acquisition by agreement--Offered respondents compensation of $1500 per acre of permanent easement, $500 per acre of temporary work space--Offer based on levels of compensa-tion paid by other pipeline companies operating in area-- Respondents refused Alliance's settlement offer--Applied for arbitrated determination of appropriate amount of advance of compensation for acquisition of interest in lands--Factors to be considered by arbitration committee in determining compensation set out in Act, s. 97--Committee agreed with position taken by Alliance advance should be related to final amount of compensation payable--In Committee's view, advance should reflect "factors that the company knows, in good faith, will ultimately form part of the basis of freely negotiated compensation arrangements"--Whether Committee failed to consider market value of lands having regard to highest, best use, and, instead, gave exclusive weight to settlements Alliance had entered into with other landowners in area of respondents' lands--Committee committed no reviewable error by relying on evidence concerning Alliance's settlements with other landowners, settlement offer made to respondent--Alliance's assertion amount of advance should be limited to en bloc market value inconsistent with position amount of advance should bear substantial correlation to final compensation landowner would be entitled to under NEBA, not supported by provisions of NEBA--Clear from separation of "value" and "compensation" in s. 87(b), (c), enumeration of factors in NEBA , s. 97(1) market value only one of factors to be considered in determination of compensation-- Committee correctly concluded amount of advance should bear relationship to final amount of compensation and, accordingly, advance should be based on something more than en bloc market value--Recognizing that compensation under NEBA more broadly based than en bloc market value and in absence of other evidence, contrary evidence regarding value, other specific characteristics in relation to respondents' lands, Committee properly relied on evidence concerning settlements in order to arrive at final amount of compensation payable-- Appellant attempting to argue merits of determination of final amount of compensation--Whether Committee erred by concluding NEBA, s. 97(1)(a) suggests "small parcel increment may be called for, if facts support it"--Small parcel factor had no bearing on determination of amount of advance--Whether Committee failed to take into account such other considerations under s. 97(1)(i) as residual, reversionary value of lands to respondents--Committee did not specifically address in reasons issue of residual, reversionary values of lands in present case--No evidence adduced regarding residual, reversionary values of respondents' lands--Committee did not err by failing to take this into account in reaching decision--Whether Committee erred in applying $500 entry fee provincially-regulated companies required to pay under Alberta Surface Rights Act to lands acquired under NEBA--Committee concluded amount of advance for permanent easement amount of Alliance's settlement offer--Committee's direction referred only to permanent easement, not to temporary work space-- Appeal dismissed--National Energy Board Act, R.S.C., 1985, c. N-7, ss. 87, 97--Surface Rights Act, S.A. 1983, c. S-27.1.