|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|
We are proud to release the third edition of the Landowner’s Guide to Oil and Gas Development','  This new Landowner’s Guide provides information about citizens’ rights in Alberta as they relate to oil and gas development. We hope it will serve as a valuable tool for landowners, those who rent land, real estate professionals, the oil and gas industry, and any members of the public who may have oil and gas development close to or on their property.
First released in 2001 as When the Oilpatch Comes to Your Backyard, and revised in 2004, the guide was a resource that rural residents and landowners remember fondly more than a decade later as an impartial and comprehensive resource. It was seen as a tool to help landowners feel more empowered in their conversations, interactions and negotiations with oil and gas producers. Since 2004, however, much has changed. The Alberta government has introduced new legislation, regulations and procedures; the responsibilities of some departments have changed; and since 2013, the Energy Resources and Conservation Board has been replaced with the Alberta Energy Regulator which is instituting significant changes in the regulatory space for oil and gas in the province. The shale revolution represents a completely new and extensive type of oil and gas resource and this industry is developing at a rapid pace. Shale oil and gas development is also occurring in new locations, bringing activity to landowners who may have never experienced development in their area. While hydraulic fracturing uses some similar equipment and techniques as other conventional oil and gas wells, there are also considerable differences — its operations are generally more intensive (more equipment, large well sites, longer duration on site, etc.), and it comes with some unique considerations for maintaining your property and protecting the surrounding environment. The third edition reflects the considerable changes that have occurred and provides readers with the information to understand how oil or gas operations and policy and regulatory system work.
One of the most significant learnings we’ve heard in our work is that early involvement is critical. The earlier that stakeholders get involved in in the planning and development stage, the more likely it is that all stakeholders can find ways to work out issues and settle on mutually beneficial solutions. If a nearby oil or gas project is not yet approved by the Alberta Energy Regulator, Before the Project Starts will provide you with the context you need to know about being involved in the project before a decision is made. However, we encourage you to read Getting Started in its entirety, as it provides important background information and advice to keep in mind while reading through the guide.
Who is it for: Landowners, those who rent land, people who do business related to land (real estate professionals, etc.), oil and gas companies and their employees, and members of the public who have an interest in the responsible development of oil and gas. What it provides:
Where to get more help: Although this guide should give you a good sense of where to start and what issues to consider, we would encourage you to seek out help from one of the numerous contacts described in Appendix B, or a consultant or lawyer familiar with land and surface rights issues with oil and gas development.
Before the Project Starts: What you need to know before activity has started, such as when you should be notified about planned activities, how to engage a company about your concerns, and how to engage with others. Initial stages of resource development: Questions that you may want to ask before signing a permit, lease or right-of-way agreement
Operational issues and impacts
In this document we use the words “landowners” and “residents” as specific terms, although for brevity we may only refer to landowners in the text. Technical definitions are: Landowner: the person or persons whose name(s) appears on the certificate of title to the land issued under the Land Titles Act. Resident: person occupying a residence on a temporary or permanent basis. Occupant: person, other than the owner, who has certain rights to the land (also referred to as ‘tenant’). The occupant may be in actual possession of the land or be shown as a person who has an interest in the land (which may be noted by a caveat on a certificate of title under the Land Titles Act). In the case of government-owned land, such as a Crown grazing lease, the occupant is the person shown in the records to have an interest in the land. Sometimes the occupant on a Crown lease is also referred to as the lessee. The AER distinguishes between landowners, occupants, residents and Crown disposition holders, which is important in the context of who a company is obligated to consult or notify before they submit an application (see Public Consultation, Notification and Involvement). Operator: person or company that has the right to conduct surveys or extract the oil, gas or other minerals. In this document we use the term “company” as well as operator. All major terms are defined in the glossary (Appendix C).
This guide focuses on the rights of landowners and others who lease or occupy the land but do not own the mineral rights. Most Albertans do not own the minerals that lie under the surface of their land. If you actually own the mineral rights on your land (as indicated on their legal mineral title):
An individual’s rights vary according to the activity in question. For example, an individual’s rights with respect to seismic lines or surveying are different from those that pertain to drilling an oil or gas well. In geophysical operations on private land the landowner or occupant can refuse entry, while in other cases they can negotiate but have no right to refuse entry.  It is thus important to be aware of your rights for specific circumstances. While the ownership issues are different, much of the general information in this guide will still be relevant.
While those who own or legally occupy land have specific rights with respect to development on their land, other groups also have rights to be consulted or notified.
The regulation of the oil and gas industry has changed significantly in the last decade. Previously, several ministries and bodies were involved in approving energy resource projects. In 2013, the new Alberta Energy Regulator was set up as a “one-stop shop” to create a more streamlined process for upstream oil, gas and coal development within Alberta and to remove overlapping jurisdictions. Its responsibilities include applications for exploration and development; inspections, compliance, and environmental protection; and reclamation, remediation and abandonment. Appendix A outlines how different government bodies are involved in the regulation of the industry. The Responsible Energy Development Act (REDA) has fundamentally changed how the oil and gas industry is regulated in Alberta. The new Regulator now has responsibility for both environmental management and energy development —mandates that were previously the responsibility of two different government bodies. Project proponents are no longer required to seek approvals from multiple provincial authorities. In this streamlined process, projects are often approved faster and with fewer guaranteed opportunities for public involvement in a formal process such as a hearing.
There are very few examples in the regulations where the Regulator is required to hold a hearing and thus far, the Regulator has recommended very few applications for a hearing. Generally there is a better chance to resolve concerns through negotiation and dispute resolution as this usually results in less cost, less time, and less frustration for all parties. But hearings can be a tool for considering larger, more complex concerns in depth and can be useful in situations where parties can not come to a resolution. However as a result of changes to the AER requirements to hold hearings and the resulting reduction in hearings, landowners or others who consider themselves to be directly and adversely affected have had a considerable reduction in their bargaining power and ability to get unwilling companies to come to mutually satisfactory outcomes. The AER has rolled out many internal efforts to engage stakeholders such as landowners and nearby residents earlier and in less formal ways to avoid a lengthy hearing. There is a greater emphasis by the Regulator for companies to build relationships before a project begins, and to resolve conflicts through their Alternative Dispute Resolution process (see Alternative Dispute Resolution). Because of this, as a person who may be impacted by development nearby, you are more likely to influence a project outcome by building relationships with the company in the early stages of a project’s development, before the company applies to the AER for their approval. If these discussions don’t lead to a satisfactory outcome but the company applies to the AER anyway, and the AER sees that you have acted in good faith, it is more likely that the project will be recommended for a hearing should that be necessary. If the AER doesn’t believe you have acted in good faith, REDA’s regulations provide the AER with the discretion to dismiss your request for a hearing, and you may be left with fewer opportunities to address your concerns.
The Pembina Institute received generous support for this work from:
Thanks to those who reviewed the text and offered encouragement:
The contents of this guide are entirely the responsibility of the Pembina Institute and do not necessarily reflect the view or opinions of those acknowledged above. We have made every effort to ensure the accuracy of the information contained in this guide at the time of writing. However, the authors advise that they cannot guarantee that the information provided is complete or accurate and that any person relying on this publication does so at their own risk. This guide should not be treated or relied upon as legal advice. This document cannot take the place of professional advice from a lawyer, professional in land and energy issues, or other qualified experts. Links to third party websites are provided for the convenience of users, and do not constitute an endorsement of their contents or a representation as to their accuracy.