A-521-02
2003 FCA 104
Terry Balisky, Marcia Balisky, Bev Collin Holdings Ltd., Byron Bue, Raymond Bue, Peter Eggers, Levke Eggers, Bryan Ellingson, Charles Evaskevich, Nora Evaskevich, Brian Fast, Teresa Fast, Doug Gabert, Raymond Gilkyson, Vicki Gilkyson, James Glasman, Elaine Glasman, Stirling Hanson, Laura Hanson, Roger Jones, Fern Jones, Don Liland, Linda Liland, Mario Marouelli, Jamie Marouelli, Donald Meador, Mona Middleton, Glen Haughian, Brian Moe, Janice Moe, Randy Moe, Kris Moe, Franklin Moller, Lloyd Olley, Katherine Olley, Don Pedersen, Kane Piper, Robert Richards, Ada Richards, Cornie Schmidt, Priscilla Schmidt, Albert Slater, Ken Slater, Dale Smith, Gwen Smith, Gordon Strate, Frank Thederahn, Irma Thederahn and Ed Welsh (Appellants)
v.
The Honourable Ralph Goodale, Minister of Natural Resources and Alliance Pipeline Ltd. (Respondents)
Indexed as: Balisky v. Canada (Minister of Natural Resources) (C.A.)
Court of Appeal, Rothstein, Evans and Malone JJ.A.-- Edmonton, February 3; Ottawa, February 27, 2003.
Energy -- "Controlled area" adjacent to pipeline right-of- way -- Landowners' damages claim -- Whether referable to Arbitration Committee under National Energy Board Act, Part V -- S. 90 arbitration notice served on Minister who ruled claim not referable -- Decision upheld on judicial review -- Reversed by F.C.A. -- Act, s. 112(1) describing "controlled area", prohibiting certain construction work near pipeline without leave of National Energy Board -- F.C.T.D. Judge holding s. 84 restricting matters with which Committee may deal, "controlled area" claims too remote for direct connection in s. 84 -- S. 75 providing pipeline company pay compensation for all damage due to exercise of statutory powers -- Either side may serve arbitration notice where unable to settle dispute -- Minister's duty: send notice on to Committee, establish Committee if none exists -- Under s. 97(1), Committee has jurisdiction to decide all compensation claims in arbitration notice -- Matters excluded from arbitration by s. 84(a): highway accidents, defamation, wrongful dismissal claims -- Not excluding claims arising due to s. 112(1) -- F.C.T.D. Judge wrong in differentiating between damages from right-of-way acquisition, statutory public safety requirements -- Purpose of Part V arbitration scheme: expeditious disposition of landowners' damages claims against pipelines companies -- Argument s. 112(1) not imposing severe restrictions as Board leave easily secured rejected -- Leave requirement reducing land value as purchaser unwilling to run regulatory risk.
This was an appeal from the decision, upon an application for judicial review, of a Judge of the Trial Division upholding the decision of the Minister of Natural Resources that a claim for damages to the "controlled area" adjacent to a pipeline right-of-way was inappropriate for determination by an Arbitration Committee under National Energy Board Act, Part V.
Respondent, Alliance Pipeline Ltd. and an American affiliate, own a natural gas pipeline extending from British Columbia to Illinois. The National Energy Board and the Governor in Council had approved the Canadian portion of this pipeline project. Most of the land was acquired by agreement, with the balance secured by right-of-entry orders granted by the Board. Appellants served upon the Minister a section 90 notice of arbitration claiming compensation for lands within the "controlled area" as well as other relief.
The issue in this appeal was one of precedential importance as it required the interpretation of Act, Part V to determine whether an Arbitration Committee may deal with compensation for damage to a "controlled area" as described in Act, subsection 112(1). That subsection prohibits certain construction activities within 30 metres of a pipeline without leave of the Board first having been obtained. The 30-metre strips on either side of a pipeline right-of-way are known as the "controlled area" and they remain in the ownership of whoever was the owner prior to the land for the right-of-way being taken. Appellants say that subsection 112(1) limits their ability to utilize power equipment to excavate for building foundations and to dig drainage ditches and dugouts to water their animals.
The Judge below interpreted Act, section 84 (which lists matters not open to arbitration) as restricting the authority of an Arbitration Committee to determining damages directly related to land acquisition or the construction, inspection, maintenance or repair of the pipeline. The Trial Division Judge was of opinion that a claim in relation to the "controlled area" was too remote to satisfy the direct connection spoken of in section 84.
Held, the appeal should be allowed.
The Judge's interpretation of section 84 could not be agreed with. Section 75 provides that a pipeline company shall pay full compensation for all damage incurred due to its exercise of powers granted by the statute. Under subsections 88(1) and 90(1), where a company and a landowner have failed to reach agreement as to compensation for land acquisition or for damages resulting from company operations, either side may request the Minister to refer the dispute to arbitration. The duty of the Minister, once served with a notice of arbitration, is forthwith to serve the notice on an Arbitration Committee and, if no such Committee exists, to appoint one and serve the notice upon it. Under subsection 97(1), a Committee has jurisdiction to determine all compensation matters referred to in the notice of arbitration. Respondent's argument was that paragraph 84(a) precludes claims arising from the effect of subsection 112(1) from referral to a Committee.
An analysis of the statutory scheme might be commenced by noting that the subject-matter of paragraph 84(a) was limited to company activities, while paragraph 90(1), by reference, incorporates land acquisition and corporate operations referred to in subsection 88(1). Since paragraph 84(a) refers only to corporate activities and limits what may be referred, its scope must be narrower than land acquisition and corporate operations. From the context in which the the word activities is used in paragraph 84(a), it would appear to refer to the actions of such persons as employees and subcontractors and to be directed at negligent acts causing damage to a landowner. What paragraph 84(a) excludes from arbitration are matters not directly related to land acquisition (surveying for example), construction and repair and would include highway traffic accidents and claims relating to defamation or wrongful dismissal. Neither the included nor excluded activities mentioned in paragraph 84(a) have anything to do with the impact of subsection 112(1) on landowners adjacent to a pipeline right-of-way. Claims for compensation related to that subsection do not arise from activities of the company as that term is used in paragraph 84(a). Nor would paragraph 84(a) exclude from arbitration claims for damages resulting from the everyday operation of the pipeline.
The Trial Division Judge mistakenly differentiated between damages resulting from right-of-way acquisition and those arising from statutory public safety requirements. There was no suggestion that landowners were not to be compensated for the loss of their real property and for the adverse impacts of severance. Even though it is the statute that, in the public interest, places limitations on a landowner's use of land in a "controlled area", the result may be a diminution of land value. There was no reason why a landowner should be unable to have a claim arising from a loss of that nature treated in the same way as one for any other adverse effect to remaining land caused by a pipeline's presence. The Part V arbitration scheme was designed to provide a summary and expeditious procedure for the determination of damages caused to landowners by pipelines. Why should claims related to a "controlled area" be excluded from the statutory scheme? It is, of course, for the Arbitration Committee to determine, upon the evidence, whether, indeed, damages were suffered due to "controlled area" limitations.
An argument put forward by respondents was that subsection 112(1) does not impose upon landowners that severe a restriction in that it is easy to secure leave from the Board. Appellants countered by suggesting that the leave requirement could diminish land value as a potential purchaser might prefer not to have to contend with such a regulatory risk. Respondents were unable to contradict that submission.
statutes and regulations judicially
considered
National Energy Board Act, R.S.C., 1985, c. N-7, ss. 75, 84, 88(1), 90, 91, 97(1), 104, 112(1) (as am. by S.C. 1990, c. 7, s. 28).
APPEAL from the decision of a Trial Division Judge (2002 FCT 976; [2002] F.C.J. No. 1266 (QL)) that landowners' claims related to the "controlled area" adjacent to a pipeline right-of-way could not be dealt with by an Arbitration Committee under Part V of the National Energy Board Act. Appeal allowed.
appearances:
J. Darryl Carter, Q.C. for appellants.
Lars H. Olthafer for respondent Alliance Pipeline Ltd.
Bruce F. Hughson for respondent Minister of Natural Resources.
solicitors of record:
Carter, Lock & Horrigan, Grande Prairie, Alberta, for appellants.
Fraser Milner Casgrain LLP, Calgary, for respondent Alliance Pipeline Ltd.
Deputy Attorney General of Canada for respondent Minister of Natural Resources.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
INTRODUCTION
[1]Under Part V of the National Energy Board Act, R.S.C., 1985, c. N-7, when a company having the authority to construct and operate a pipeline takes land for the use of the pipeline and compensation is not agreed upon with a person whose land is taken, either party may serve a notice of arbitration on the Minister of Natural Resources. The Minister shall then refer the matter to an Arbitration Committee for the purpose of the determination of compensation. However, if a matter referred to in the notice of arbitration is not one to which the arbitration proceedings under the Act apply, the Minister shall not refer that matter to arbitration.
[2]The issue in this appeal is whether the Minister must refer to an Arbitration Committee claims for compensation for alleged damages involving what is termed the "controlled area" adjacent to the right-of-way of the pipeline.
[3]The Minister determined that such claims by the applicants in this case did not fit within the arbitration scheme under Part V of the Act. He, therefore, refused to refer these claims to an Arbitration Committee. The appellants' application for judicial review to the Federal Court Trial Division was dismissed [2002 FCT 976; [2002] F.C.J. No. 1266 (T.D.) (QL)]. This is an appeal from that dismissal.
FACTS
[4]The facts are not in dispute and I paraphrase them from the decision of the judicial review Judge. Alliance Pipeline Ltd. (Alliance) and its U.S. affiliate own and operate a natural gas pipeline extending from the northeast region of British Columbia to a point near Chicago, Illinois (the pipeline). In 1998, Alliance obtained approval from the National Energy Board and the Governor in Council to construct and operate the Canadian portion of the pipeline.
[5]Most of the land required for the right-of-way of the pipeline was acquired by agreement. In those cases in which agreement could not be reached, Alliance applied for and was granted right-of-entry orders by the National Energy Board pursuant to section 104 of the Act.
[6]Pursuant to section 90 of the Act, each of the appellants served a notice of arbitration upon the Minister which requested, among other things, compensation for the lands within the controlled area.
[7]The Minister, by letter dated January 10, 2001, advised the parties that Arbitration Committees would be appointed under the Act to consider the matters contained in the notices of arbitration, except those relating to compensation for the controlled area because he was not satisfied that they fell within the arbitration procedures under Part V of the Act.
[8]By order dated September 13, 2001, the application for judicial review of the Minister's decision was dismissed.
ANALYSIS
Standard of Review
[9]The parties are agreed that the standard of review of the Minister's decision is correctness. The issue involves the interpretation of Part V of the Act. The Act contains no privative clause and the determination of what matters may be referred to an Arbitration Committee will have precedential importance. I agree with the parties that the standard of review is correctness.
The Controlled Area
[10]At issue is whether an Arbitration Committee appointed under Part V of the Act may deal with compensation for alleged damage involving the controlled area described in subsection 112(1) [as am. by S.C. 1990, c. 7, s. 28] of the Act. Subsection 112(1) provides:
112. (1) Subject to subsection (5), no person shall, unless leave is first obtained from the Board, construct a facility across, on, along or under a pipeline or excavate using power-operated equipment or explosives within thirty metres of a pipeline.
[11]The 30 metres referred to in subsection 112(1) is a 30-metre strip adjacent to either side of a pipeline right-of-way. These 30 metre strips are commonly referred to as the controlled area. The controlled area is not land taken for the pipeline right-of-way which is usually a strip about 18 metres wide. The controlled area remains in the ownership of the person or persons who owned it before the pipeline right-of-way was taken.
[12]The portion of subsection 112(1) relevant to this appeal provides that these landowners shall not excavate using power-operated equipment or explosives in the controlled area without first obtaining approval from the Board.
[13]The type of activity that the appellants say is limited by subsection 112(1) includes their use of power-operated equipment to dig drainage ditches, foundations for a building, or dugouts for water for animals. They say that they are entitled to refer to an Arbitration Committee claims for compensation for damages arising out from limits imposed by subsection 112(1).
Judgments Below
[14]The judicial review Judge was of the opinion that compensation for the controlled area was not a matter that could be referred to an Arbitration Committee. She relied upon section 84 which sets out the restrictions on the matters that may be covered by negotiation and arbitration procedures in Part V. Section 84 reads:
84. The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company or anything carried 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 of lands for a pipeline,
(ii) the construction of the pipeline, or
(iii) the inspection, maintenance or repair of the 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.
[15]At paragraph 19 of her reasons, the judicial review Judge found that paragraph 84(a) restricted the role of an Arbitration Committee to determining damages that were directly related to either the acquisition of land, or the construction, inspection, maintenance or repair of the pipeline. Because the controlled area is established by reason of subsection 112(1), it was not, in her view, related in any direct manner to the company's acquisition of the pipeline right-of-way itself.
[16]At paragraphs 23 and 25 of her reasons she stated:
In light of these definitions, the use of the word directly in section 84 of the Act will require the immediate participation of the pipeline company. As pointed out by the respondent Alliance, the "controlled area" established pursuant to section 112 of the Act is not related in any direct manner to the acquisition of the pipeline right-of-way itself. It is a statutory public safety requirement imposed on land owners by Parliament through the Act.
. . .
In my opinion, the claim for compensation for acquisition of lands by Alliance in relation to the "controlled area" is too remote to satisfy the direct connection prescribed by section 84 of the Act.
[17]The Minister had come to the same conclusion. In his decision finding that compensation for the controlled area did not fit within the statutory scheme, he stated that he was not satisfied that such compensation was "directly related to the compensation for damages caused by a pipeline company when constructing, maintaining or repairing the pipeline". Although he did not refer to paragraph 84(a) expressly, his reference to "directly related" strongly suggests that he was referring to the wording of that paragraph in coming to his conclusion.
The Statutory Scheme
[18]With respect, I am unable to agree with the interpretation given to section 84 by the Minister and the judicial review Judge.
[19]Section 75 provides that a company shall make full compensation for all damage sustained by reason of the exercise by the company of the powers granted to it under the Act. Section 75 provides:
75. A company shall, in the exercise of the powers granted by this Act or a Special Act, do as little damage as possible, and shall make full compensation in the manner provided in this Act and in a Special Act, to all persons interested, for all damage sustained by them by reason of the exercise of those powers.
[20]When a pipeline company and a landowner have not agreed upon compensation for the acquisition of land for a pipeline or for damages suffered by the landowner as a result of the operations of the pipeline company, either party may request the Minister to refer the matter to negotiation and/or arbitration. Subsections 88(1) and 90(1) provide:
88. (1) Where a company and an owner of lands have not agreed on the amount of compensation payable under this Act for the acquisition of lands or for damages suffered as a result of the operations of the company or on any issue related to that compensation, the company or the owner may serve notice of negotiation on the other of them and on the Minister requesting that the matter be negotiated under subsection (3).
. . .
90. (1) Where a company or an owner of lands wishes to dispense with negotiation proceedings under this Part or where negotiation proceedings conducted under this Part do not result in settlement of any compensation matter referred to in subsection 88(1), the company or the owner may serve notice of arbitration on the other of them and on the Minister requesting that the matter be determined by arbitration.
[21]Where the Minister is served with a notice of arbitration, he shall forthwith refer the matter to an Arbitration Committee. Subsection 91(1) provides:
91. (1) Where the Minister is served with a notice of arbitration under this Part, the Minister shall,
(a) if an Arbitration Committee exists to deal with the matter referred to in the notice, forthwith serve the notice on that Committee; or
(b) if no Arbitration Committee exists to deal with the matter, forthwith appoint an Arbitration Committee and serve the notice on that Committee.
[22]Subsection 97(1) of the Act confers on an Arbitration Committee the jurisdiction to determine all compensation matters referred to in a notice of arbitration. In determining compensation matters, the Arbitration Committee shall consider a number of listed factors where they are applicable, as well as such other factors as it considers proper in the circumstances. Subsection 97(1) provides:
97. (1) An Arbitration Committee shall determine all compensation matters referred to in a notice of arbitration served on it and in doing so shall consider the following factors where applicable:
(a) the market value of the lands taken by the company;
(b) where annual or periodic payments are being made pursuant to an agreement or an arbitration decision, changes in the market value referred to in paragraph (a) since the agreement or decision 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;
(d) the adverse effect of the taking of the lands by the company on the remaining lands of an owner;
(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 affected by the operations of the company;
(h) any special difficulties in relocation of an owner or his property; and
(i) such other factors as the Committee considers proper in the circumstances.
[23]While the jurisdiction conferred by subsection 97(1) on an Arbitration Committee to determine compensation matters is broad, it is not unlimited. Subsection 91(2) provides that the Minister shall not refer certain matters to an Arbitration Committee. Subsection 91(2) provides:
91. . . .
(2) The Minister shall not take any action under subsection (1) where the Minister is satisfied that the matter referred to in a notice of arbitration served on the Minister is a matter
(a) solely related to the amount of compensation that has been previously awarded by an Arbitration Committee and that, under the award, the amount is not subject to a review at the time the notice is served; or
(b) to which the arbitration procedures set out in this Part do not apply.
[24]Section 84 commences by providing that arbitration procedures apply in respect of all damage caused by the pipeline or anything carried by the pipeline. It then provides that the arbitration procedures do not apply to claims against a pipeline company arising out of activities of the company, other than activities directly related to the acquisition of lands or the construction, inspection, maintenance or repair of the pipeline. For ease of reference, I repeat paragraph 84(a):
84. The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline of a company or anything carried 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 of lands for a pipeline,
(ii) the construction of the pipeline, or
(iii) the inspection, maintenance or repair of the pipeline;
The only question relevant to this appeal is whether paragraph 84(a) precludes an Arbitration Committee from considering claims for compensation arising from limitations affecting the controlled area pursuant to subsection 112(1).
[25]Under subsection 90(1), all claims for compensation for the acquisition of land or compensation for damages suffered as a result of the operations of the company are referable to negotiation or arbitration. Subsection 91(1) provides that the Minister shall, when served with a notice of arbitration, refer the matter to an Arbitration Committee. Subsection 97(1) describes the factors to be considered by an Arbitration Committee. Claims for compensation arising from the effect of subsection 112(1) would be claims that would be referable to an Arbitration Committee under subsection 90(1) and determinable by an Arbitration Committee under subsection 97(1). The respondents do not submit otherwise. Their argument is that paragraph 84(a) precludes claims arising from the effect of subsection 112(1) from being referred to an Arbitration Committee.
Analysis of Statutory Scheme
[26]I start with the observation that the subject-matter of paragraph 84(a) is limited to activities of the company, whereas paragraph 90(1), by reference, incorporates the subjects of the acquisition of land and operations of the company referred to in subsection 88(1). Since paragraph 84(a) refers only to activities of the company, and since it limits what may be referred to an Arbitration Committee, its scope must be narrower than acquisition of land and operations of the company.
[27]From the context in which the word activities is used in paragraph 84(a), it seems to me that it refers to actions of employees, subcontractors or others acting on behalf of the pipeline company. Activities directly related to acquisition of land would include surveying. Activities directly related to construction would include the physical transportation of pipes and other materials to the right-of-way and the work necessary to bring the pipeline to a state in which it is ready for operation. Activities directly related to inspection, maintenance and repair of the pipeline would include the work of individuals once the pipeline was ready for use or was already in operation.
[28]Paragraph 84(a) appears to be directed at negligent or, perhaps, even innocent acts of employees, subcontractors or others acting on behalf of the pipeline company, such as those I have described, that cause damage to an owner of land. Conversely, damages arising from activities of employees, subcontractors or others acting for the company when those activities are not directly related to the aspects of the pipeline referred to in paragraph 84(a) cannot be referred to an Arbitration Committee. These activities might include activities that cause damage as a result of a highway traffic accident, defamation or wrongful dismissal.
[29]Neither the excluded nor included activities referred to in paragraph 84(a) have anything to do with the effect of subsection 112(1) on landowners adjacent to a pipeline right-of-way. Claims for compensation arising from subsection 112(1) do not arise from activities of the company as that term is used in paragraph 84(a). They arise by virtue of the presence or existence of the pipeline.
[30]The operations of the pipeline company will certainly include the activities referred to in paragraph 84(a). However, the ordinary everyday use of the pipeline, beyond construction, maintenance, inspection and repair, also constitutes operations of the pipeline company. Just as paragraph 84(a) cannot be read to exclude from arbitration claims for damages arising from the ordinary operation of the pipeline, it cannot be read to exclude from arbitration claims for compensation arising from the effect of subsection 112(1). If section 84 has any relevance to subsection 112(1), it would be in the opening words, that arbitration applies "in respect of all damage caused by the pipeline of a company".
[31]For these reasons, I am of the opinion that paragraph 84(a) does not preclude claims for compensation arising from the effect of subsection 112(1) from being referred to an Arbitration Committee.
[32]In finding that claims for compensation arising from subsection 112(1) could not be referred to an Arbitration Committee, the judicial review Judge differentiated between damages arising out of the acquisition of the pipeline right-of-way and damages arising from the public safety requirement imposed by statute. I am unable to accept the validity of this distinction. The acquisition of the pipeline right-of-way is pursuant to a right granted to the pipeline company by statute. Parliament considered it in the public interest that pipeline companies should have such rights, notwithstanding that they involve the compulsory taking of land to which a landowner might not otherwise agree. Nonetheless, there is no suggestion that landowners are not to be compensated for the loss of their land for the right-of-way and for the adverse effect on remaining land because of severance or other reasons. Even though it is the statute that places a limitation on the use of the controlled area by a landowner, and that such limitation is in the public interest, the result may be a loss in value to the landowner. There is no reason why subsection 97(1) should not apply and why a landowner should not be able to have a claim for such loss treated in the same manner as a claim for any other adverse effect to remaining land as a result of the presence of the pipeline.
[33]As I understand the purpose of the arbitration scheme in Part V, it is, amongst other things, to provide a summary and expeditious procedure for the determination of damages suffered by landowners affected by a pipeline, with the object of keeping them whole. Arbitration Committees are considered the appropriate forum for such determinations. I can see no valid reason why a loss arising out of a limitation placed on the controlled area that causes damage to an adjacent landowner should not be compensated for, or why the arbitration procedure should not be available for the determination of such compensation.
[34]In coming to this conclusion, I should not be taken as implying that there are damages suffered as a result of limitations on the controlled area generally or in any given case. That is a matter of evidence to be considered by an Arbitration Committee.
[35]The respondents argued that subsection 112(1) does not restrict landowners from using power-operated equipment or explosives in a controlled area. They say that subsection 112(1) only requires a landowner to obtain leave from the National Energy Board before any power-operated equipment or explosives are used. They say that obtaining leave is an easy matter and that, if a landowner is denied leave, only at that point can it be shown, without speculation, that there was an adverse effect that would give rise to a claim for compensation.
[36]The respondents go on to say that, prior to the enactment of subsection 112(1), a pipeline company could, in an appropriate case, obtain an injunction against an adjacent landowner from excavating using power-operated equipment or explosives on land close to a pipeline when this might interfere with the pipeline. They say subsection 112(1) simply provides a scheme whereby the Board, rather than a court, deals with such limitations and that subsection 112(1) does not create a new type of damage that did not exist before.
[37]However, the appellants say that the requirement to obtain leave of the Board to excavate using power-operated equipment or explosives in the controlled area might diminish the value of the controlled area and/or, perhaps other adjacent land. Potential purchasers may see the requirement that landowners must obtain leave from the Board as a regulatory risk with which they would rather not have to contend. This regulatory risk might, therefore, diminish the value of the owners' land. The appellants say that this is a matter that landowners should be able to bring to an Arbitration Committee.
[38]The respondents have no answer to this concern. It may be that, prior to subsection 112(1), a potential limitation on excavating close to a pipeline may have been a factor for consideration in the awarding of compensation in respect of the taking of land for, or the construction and operation of a pipeline. Whether that was the case or not, the current legislation places the onus on the landowner to obtain Board approval before excavating using power-operated equipment or explosives.
[39]It may be that the reduction in land value resulting from the controlled area is slight or indeed, non-existent. However, as I have said, that is a matter of appraisal or other evidence to be brought before an Arbitration Committee. I can see no reason, based upon the scheme of Part V, to deny landowners the opportunity to bring such a matter before an Arbitration Committee.
[40]For these reasons, I am of the opinion that the Minister was in error when he found that compensation for the controlled area did not fit within the statutory scheme and that the learned judicial review Judge should have granted the appellants' application for judicial review.
CONCLUSION
[41]I would allow the appeal with costs here and in the Trial Division, quash the decision of the Minister in respect of compensation relating to the controlled area, and direct the Minister to refer to an Arbitration Committee or committees the matter of compensation relating to the controlled area.
Evans J.A.: I agree.
Malone J.A.: I agree.