Chapter 9- Surface Rights Flashcards
What are the different variations of titles you can have?
You can have:
One Private Owner owns both surface and the mineral rights
Different private owners owner the mineral rights compared to the surface owner
Private owner of surface, but crown owns mineral rights.
Crown owns both but there is disposition of surface; for example a timbre lease
Crown owns both but the surface is vacant; but different ministries could own the title
Where do you apply if you are dealing with crown lands?
You have to go to Environment and Surface Resource Development Director, who will give you a Mineral Surface lease for 25 years which can be renewed.
What was the relevant case for right to work, and why does it not make sense in Canada?
Borys case proposed an implied right to work, but that common law rule doesn’t make sense in Canada (where crown reserved the mineral rights) as it did in England (where the private owners owned both the surface and mineral rights).
How long has there been legislations dealing with the right to entry?
1930-Provincial Lands Act which became the Public Lands Act.
For Private Property, we had the Right of Entry Arbitration Act, which came into force in 1947.
What are the acts that determine the procedure for the Surface Rights Board and what are the rules that follow?
Administrative Procedure and jurisdiction Act applies, through Authorities Designation Regulation.
Therefore, we have the natural rules of justice that apply to this situation: you have to give notice, permit response, written reasons, and the board is not subject to rules of evidence.
Unlike regulatory tribunal, the board cannot decide on constitutional issues.
What are the 3 ways to get access surface?
1) Through lease if it’s the same owner (separate consideration must be paid as per section 12 (2) of the surface rights act.
2) By consent of the surface owner- if it is a different owner than the mineral owner, then you can simply enter into a lease.- there can be covenants; also, if the land are on a homestead, then the dower act applies
3) Right of entry order through the SRB- you have to show that negotiations did not work before you can apply
What is the current legislation for dealing with right of entry order in Alberta, and when did that come about?
The surface rights act, which originally came to force in 1972.
What is required for the surface access is gained through consent (surface rights lease)?
The lease should have a description of the parties and the premise; there should be a description of the commencement date and the duration of the term; and there should be a description of the land, entry fee etc.
What sort of covenants can be imposed?
Access road traffic; livestock concerns; fencing; weed control topsoil handling; site reclamation; drilling waste disposal project
What are the procedures for the surface rights board?
- Make an application, but you have to show that the negotiations did not work. The prescribed form of the application must also be accompanied by a copy of the most recent offer made.
- Notice needs to be sent to the other party
- The next step is determining the appropriate dispute resolution process.
- if there is a heating, then:
a) notice needs to be sent to the parties
b) determine the rights of the participants
c) it is an inquisitorial type hearing,s o the board is allowed to ask questions and cross examine
d) the rules of evidence do not apply
Define the inevitability of the order?
In common law, there was an automatic right of entry. We ended up with a similar position in Alberta, because the surface rights board has to ensure that the right of entry is not inconsistent with the permit, licence or other approval (15.6.b).
What is the name of a 2 cases case supporting this proposition?
Windrift Ranches v Alberta Surface Rights board (Alberta court of appeal)-Right of entry proceedings are ancillary and in aid of oil well activities authorized by the ECRB.
Brian O’Ferral- It is the ECRB which really grants the right to enter; the surface wights board is essentially a rubber stamp.
What is the most important jurisdiction of the board?
The board’s real jurisdiction is as a compensatory tribunal. They determine the 3 terms of entry: conditions, entry fee, compensation.
How much is the entry fee?
lesser of 5000, or 500 per acre ((or proportinal amount but no less than 250))
What case deals with the pattern of dealing?
Bennet v Bennet; if a pattern of dealing has been established, then compensation of the compulsory imposition or renewal may be based on negotiated amounts in those prior contracts between others.
What are the factors to be considered for the compensation order?
- market valuation criteria :
- how much would someone pay
- what value would you get from use of this land - the loss of use for occupant
- adverse effect: effect on remaining land, and nuisance etc.
What are some of the consideration SRB takes into account for determining cost recovery?
Rule 31 cost award.
-the degree of success in the outcome of the proceeding`
If you do not like the decision of the board, what are your options?
The board may rehear an application, or reconsider your application.
If the board does not rehear, you can appeal to court for compensation order, which takes the form of a new hearing- but the court gives deference to the decision of the surface rights board because of their expertise.
There is no appeal for the right of entry order, but you can have a judicial review.- generally reasonable standard.
What are the different forms that judicial review can take?
Could be process based- the process was not fair
The tribunal acted outside it’s jurisdiction- null and void decision
What was the ratio of Mueller v Montana?
Not having a public hearing is not unreasonable. The court applied the baker factors:
1. closeness of admin process to judicial process
not close to judicial; “rubber stamp”
2. stat scheme- final decision
not final; there are ways for reviewing
3. importance of the decision to the affected individual
in this case, it is important, but the real decision was made earlier, by senior tribunal (the regulator)
legitimate expectations of parties
4. f there was a practice of holding public hearing, but there is no standard for international powerline application
there may be an expectation for traditional oil and gas, since that is whats been happening, and you are only dealing with one owner
5. discretion of tribunal re procedure
SRB has authority, fairness can be achieved without oral authority; oral hearing have not been granted in the past.
What is the ratio of van giessen?
Charter protects pot growers from unreasonable search and seizure but not potato farmers.
What is the ratio of Encana ?
The standard of review is reasonableness, because of the SRB’s expertise. A condition can be deemed unreasonable if no rational for a condition are provided (condition 5: weed control).
Do you have to be under the right of entry regime to apply for dispute resolution?
No, it applies to all private surface lease.
What is the test in dispute resolution?
Causal test “but for”; no need to establish negligence
What are the limitation for dispute resolution?
25000 monetary cap; 2 year limitation period; mainly for dealing with isolated instances.
