The Surface Rights Board is a quasi-judicial tribunal that grants right of entry and assists landowners/occupants and operators resolve disputes about compensation when operators require access to private land or occupied crown land to develop subsurface resources such as oil, gas, and coal or to build and operate pipelines and power transmission lines.

Compensation Review
 
Overview of the Process

Every five years, the following process is followed to review the rate of annual compensation owed for Right of Entry Orders and surface leases. Like for new orders, the Board will try to help the parties reach an agreement, but can also order a rate of compensation if need be. During five-year reviews of compensation rates (as opposed to compensation for new rights of entry), the Board may consider the following factors when deciding compensation, according to clause 27(1)(d)  of the Act:

  • 25(1)(c) the loss of use by the owner or occupant of the area granted to the operator, and
  • 25(1)(d) the adverse effect of the area granted to the operator on the remaining land of the owner or occupant and the nuisance, inconvenience and noise that might be caused by or arise from or in connection with the operations of the operator,

Previous decisions of the Board and the Courts may be of assistance when attempting to understand how the Board may decide a particular matter. Please refer to Decisions.

 
Minimize 1. Operator gives notice of opportunity to have compensation rate reviewed

Within 30 days after the 4th anniversary of each Right of Entry Order or surface lease, the operator shall give notice to the lessor or respondent to inform them that they have the right to have the rate of annual compensation reviewed (subsection 27(4) of the Act). This notice must state either (a) that the operator wishes to have the rate reviewed, (b) that the landowner or occupant has a right to have the rate reviewed, or (c) when no rate has been fixed, that the landowner or occupant has a right to have one fixed (subsection 27(5) of the Act).

Minimize 2. If no notice is given

If the operator does not give notice when it is required, the lessor or respondent may inform the operator that they want to have the rate of annual compensation reviewed and may enter negotiations as described in step 3. When the operator does not give notice of the right to review, the Surface Rights Act says that the Board may award interest against them (clause 27(15)(c) of the Act).

Minimize 3. If either party wishes to review the rate of annual compensation, they enter into negotiations

If either party want to review the rate of annual compensation, they should spend the time between the notice and the 5th anniversary of the right of entry order or the surface lease negotiating in good faith to find a new rate that both parties can agree to (subsection 27(6) of the Act). If the parties agree through negotiations on the new amount of compensation payable, there are different ways of making their agreement official: if there is a Surface Lease you may amend the surface lease or enter into a new lease Section 27(7)(a) of the Surface Rights Act. If you have a Board Order either party may apply to the Board to vary the order (Section 27(7)(b) of the Surface Rights Act) by providing a completed Varying the Rate of Compensation Form to the Board.

Minimize 4. If an agreement cannot be reached through negotiations, either party may submit an Application for Review of Compensation

If parties are not able to negotiate a new rate of compensation by the 5th anniversary of the Right of Entry Order or surface lease, either party may submit an Application for Review of Compensation to the Board. For more information on making the application, see How to Apply. The Board will then begin proceedings to help review or fix a rate of annual compensation pursuant to section 27 of the Surface Rights Act.

Minimize 5. Pre-Hearing Dispute Resolution Conference

After receiving an application, the Board Administration typically schedules a telephone Pre-Hearing Dispute Resolution Conference (“DRC”). The point of this conference is for the Board to help the parties resolve their dispute and reach an agreement. At the DRC, the Board Member may discuss with the parties (but not limited to): (1) identification and simplification of issues, (2) which facts can be agreed upon, (3) whether issues can be settled, (4) disclosure, (5) exchange of information, and if necessary (6) hearing dates. Mediation is encouraged, and may be facilitated by Board Members. For more information, see Dispute Resolution Conference.

If at any point in the proceedings the parties reach a settlement, they should notify the Board and solidify their agreement using one of the two methods described in Settlement Agreement.  

Minimize 6. If an agreement could not be reached through mediation or the DRC, parties go to an oral hearing

An oral hearing  is schedule if the DRC did not resolve the compensation issue. This hearing only deals with compensation with respect to loss of use and adverse effect. The Board may, at its discretion, award reasonable costs that the lessor or respondent incurs in relation to the Board proceedings. For more information, see Hearings

Minimize 7. Opportunity to appeal

Either party has the right to appeal a Compensation Order to the Court of Queen’s Bench, pursuant to section 26  of the Surface Rights Act. For more information on appeals, see Appealing to the Court.

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