|Authors:||Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian|
|Publish Date:||October 2016|
|PDF Download:||[Landowners' Guide] [Landowners' Primer]|
|Pipelines and Other Infrastructure|
|Abandonment and Reclamation|
|Compensation, Rights, and Hearings|
Alberta Energy Regulator
Other Alberta Departments
Energy Industry Associations
Provincial Non-profit Organizations
Surface Rights and Local Groups
Responsible Energy Development Act
AER Oil and Gas Related Legislation
AER Energy Related Legislation
Other Provincial Acts
Glossary of Terms
The Surface Rights Act (RSA 2000, c S-24) outlines the powers of the Surface Rights Board, which deals with right-of-entry orders and compensation. If a company is unable to negotiate an agreement with the landowner or occupant, company representatives are not allowed to enter the land until a right-of-entry order has been obtained (section 12). This applies whether the company wants to remove minerals, drill a well or construct, operate or remove a pipeline, power transmission line or telephone line. Additionally, if a reclamation certificate has been revoked, the Surface Rights Board will grant a right-of-entry order (section 13.1(1). The only exception is for surveying, where a landowner cannot refuse access (section 14(1)). The Surface Rights Board cannot refuse entry once the AER or the AUC has issued a licence, permit or other approval (section 15(6)). However, it can set conditions for compensation for the right of entry. It can also attach conditions to the right of entry for such things as insurance, fencing or treatment of topsoil. Before the company can actually set foot on the land, it must pay the landowner or occupant a right-of-entry fee (section 19) and some compensation (section 20).
After issuing a right-of-entry order, the Surface Rights Board holds proceedings to determine the exact amount of compensation that a company must pay (section 23). The Board may conduct its hearings by written submission, or by oral hearings (section 8 (3.1)). Additionally, The Board may inspect the property before making a decision (section 24). The Act sets out all the factors that the Board must consider when deciding the amount of compensation (section 25). Compensation and Surface Rights Access in this guide outlines these key factors. If a company or landowner/occupant does not agree with the Board’s decision on compensation, the decision can be appealed to the Court of Queen’s Bench (section 26). An operator’s rights-of-access under a right-of-entry order or lease may be suspended or terminated by the Board for non-payment of the annual rental fee (section 36). The Board can review the rates of compensation every five years (section 27) and can rehear applications and review, rescind, amend or replace any decision or order that it makes (section 29).
The Board can also hold a hearing to settle other disputes between a company and landowner/occupant concerning such matters as damages to land outside the leased area, damage to livestock or property, or time that the owner or occupant spends in recovering stray livestock (section 30). The maximum amount that can be awarded under this section is $25,000, so larger claims must be taken to the courts.
This regulation sets out the information that must be provided in an application for a right-of-entry order and is intended for the company making the application.
The Rules of Procedure and Practice outline how the Board is to issue and terminate right-of-entry orders and hold hearings. It allows the Board to review, rescind or amend any decision it has made and also to hold an inquiry.
Alberta Energy is responsible for parts of the Mines and Minerals Act (RSA 2000, c M- 17), which outlines the major rules for exploring and developing mineral resources in Alberta, including oil, gas, coal, precious metals and oilsands. Part 4—Petroleum and Natural Gas Leases and Part 8—Exploration are most likely of interest to landowners and occupants. Part 8 is further discussed under Mines and Minerals Act Part 8 (Exploration) of this guide as it is under the AER’s jurisdiction. Part 4 specifies that a petroleum or natural gas lease usually lasts for five years (section 81). It also sets out what can be dealt with in regulations (sections 83 and 85).
The Exploration Regulation, which is in part related to the Mines and Minerals Act, is described in Public Lands Act, since Alberta Energy Regulator is responsible for those parts of the regulation that relate to landowners.
This regulation under the Mines and Minerals Act deals with the compensation that the government must pay if it cancels a company’s mineral lease, because it is not in the public interest, or for some other reason. It does not pertain to the issue of compensation for landowners or occupants.
Alberta Human Resources and Employment is responsible for the Land Agents Licensing Act (RSA 2000, c L-2), which governs the licensing of land agents. The Registrar of Land Agents handles licensing (section 4) and is empowered to investigate complaints (section 13). A land agent is required to leave a copy of any proposed agreement with respect to an interest in land with the landowner for at least 48 hours, excluding any holiday, before continuing negotiations or obtaining a signature (section 17). The Land Agent Advisory Committee can make recommendations to the Minister on such things as the qualifications required for land agents and standards of conduct (sections 23–24).
This regulation sets out conditions relating to the Act. For example, it specifies the information that a land agent must provide to the landowner when negotiating an agreement and that a land agent must offer to explain to the owner or the owner's agent the proposed terms of the agreement (section 7).
The National Energy Board manages various federal responsibilities relating to energy development, as set out in the National Energy Board Act (RSC 1985, c N-7). Part III of the Act deals with the construction and operation of pipelines under federal jurisdiction (such as interprovincial and international pipelines).
There are two stages to the pipeline approval process. A company must first obtain a certificate from the NEB that shows the Board approves the general project (section 32). The second step requires the company to submit to the NEB its detailed plans for the precise location of the route, including the names of affected owners and occupiers, as far as they can be determined (section 33). The company must contact landowners along the proposed route and publish a notice in at least one issue of a publication that circulates in the affected area (section 34). Any person who has received a notice from the company and any other person who expects to be adversely affected by the pipeline, other than the landowner, can make an objection to the Board. The Act distinguishes between landowners (the owner, in section 34(3)) and “[A] person who anticipates that his lands may be adversely affected by the proposed detailed route of a pipeline, other than the owner of lands referred to in subsection (3)” (section 34(4)). The latter could be an occupier or someone living nearby. Occupiers should clearly state their “interest” in the land.
Anyone objecting to a pipeline must write to the NEB, outlining their interest in the land — for example, as owner, occupier or adjacent resident — and why they are objecting to the detailed route of the pipeline. The NEB must receive this written statement within 30 days of the person receiving the notice from the company or the last date of publication of the notice. If the NEB receives valid written objections it will hold a public hearing in the area of the affected land (section 35). The Board may disregard a written statement if it appears to be “frivolous or vexatious or is not made in good faith” (section 35(5)). Notice of the hearing will be sent to all those who submitted a written objection and will also be announced in a local paper. Any person who submitted a written statement will be allowed to make a submission at the hearing and the NEB may allow other people who are interested to take part (see National Energy Board Hearings of this guide).
The NEB can issue an approval for a company to proceed with any part of the pipeline if it has not received valid written objections until after the hearing. The Board may make that approval subject to any conditions it thinks appropriate (sections 36 and 37). Interveners may be awarded costs by the NEB for participating in a detailed route hearing. The company will be required to pay these costs (section 39).
NEB inspectors ensure compliance with the conditions, regulations and commitments; these inspectors are entitled to access the pipeline and any excavation activity within 30 metres of the pipeline and any facility being constructed across the line or nearby (section 49). The Act sets out an inspector’s powers and the penalties for failure to comply (sections 50 through 51.4).
The powers of pipeline companies are set out in Part V of the National Energy Board Act, which deals with compensation for lands acquired for a pipeline. Compensation is paid to all those with an interest in land. Thus, in sections 86–107 of the Act, the word “owner” has a wider meaning than the actual landowner and applies to those who have an interest in the matter and have suffered damage (sections 75 and 85). If the owner and company cannot agree on compensation using the NEB process, either of them can ask the Minister of Natural Resources to appoint a negotiator (sections 88 and 89) or an arbitration committee (section 90). Arbitration may also be requested if there is a disagreement about a claim for damages, even though there was an agreement in place.
An Arbitration Committee can hold hearings and inspect the land before making a decision (section 94). They can decide if compensation is paid as a lump sum, or as annual or periodic payments (section 98). The Committee’s decision is final and can only be appealed to the Federal Court on a matter of law or jurisdiction. An Arbitration Committee also has power to award costs.
The Governor in Council can refer a decision of the NEB back for reconsideration (section 53(1)). The Governor in Council may also order the Board to issue a certificate, or dismiss the application (54(1)). You can apply for a judicial review by the Federal Court of Appeal on any order by the Governor in Council to approve or reject a certificate, within 15 days of the order being published (section 55(1)).
The Alberta Land Stewardship Act (SA 2009, c A-26) (ALSA) was established to create long-term regional plans that balance the economic, environmental and social objectives of the Province of Alberta. It is meant to provide direction through legislation and policy for coordination of decision-making across regulatory bodies such as the AER, Alberta Environment and Parks, and other government authorities.
ALSA sets out the purpose and process of making regional plans, which regulatory bodies such as the AER are responsible for adhering to (either through binding regulatory measures or through statements of government policy). Section 5 describes the consultation process for designing a regional plan. Each plan may identify regional thresholds for environmental impacts and actions to mitigate adverse impacts on the region (section 8(2b)). These thresholds may in part be used to manage cumulative effects of energy development, such as creating an absolute air quality limit.
Section 19 and 19.1 outline the criteria for compensation, if a regional plan results in a “compensable taking” of private land or freehold mineral rights. A registered owner has to apply for compensation within 12 months from the date the regional plan, or an amendment to a regional plan, comes into force. If the dispute continues for longer than 60 days, the matter may be heard by the Land Compensation Board (section 19.1(3)).
Additionally, within 12 months of the plan coming into force, a person who feels they are directly and adversely affected by the implementation or amendment of a regional plan may apply to the Stewardship Minister to establish a panel to conduct a review of the regional plan or amendments and make a series of recommendations to the Stewardship Minister (section 19.2). For example, you may do this if you feel that the regional thresholds that are set by a regional plan directly and adversely affect you because you feel they do not adequately protect you.