2017-Surface Rights Board Caselaw Review Debbie Bishop Heidi Meldrum Bishop Law Surface Rights Law Office

Overview Uncommon Issues Rental Retention Issues 3rd party road users Update on costs Update on injurious affection

Uncommon Issues Husky Oil Operations Limited v Patry Excavating & Trucking Ltd., 2017 ABSRB 323 Decision Date: April 3, 2017 Panel: Gord Chapman, Ed Zenko, Shannon Boyer Hearing Type: Rent Review Issue: Whether Board should award annual payments based on lost income from gravel deposits under wellsite [40]           Patry Excavating’s position is that, but for the Lease, it has lost the use of the entire volume of gravel as of August 26, 2014.  The Board finds that requesting interest on the net value of the gravel claimed at of effective date of the review implies that the entire volume of gravel could have been excavated and sold as of August 24, 2014.  The Panel disagrees and finds that as at the effective date, and during the balance of the review period, Patry Excavating was not licensed to excavate gravel in the leased area.   [41]           Patry Excavating abandoned gravel excavation on the subject Lands in 1996.  Without a licence to excavate, the Panel finds that Patry Excavating was not in a position to extract a gravel resource as of the effective review. Based on both Mr. Helm’s and Mr. Minchau’s evidence, it is unlikely that Patry Excavating will obtain a mining licence in the foreseeable future. Patry Excavating cannot excavate gravel anywhere on the subject Land, including under the leased area, until there is regulatory approval and a gravel mining licence is issued. The Panel finds, therefore, that there was no loss of use of the gravel resource arising from the Lease during the effective review period. The claim for loss of use of a gravel resource is premature. [43]           The Panel considered the Operator’s “A” list agreements, noting the range for loss of $250 per acre for pasture with gravel to $450 per acre for improved pasture.  The quality of the pasture on this former gravel excavation is poor and warrants compensation on the lower end of the range.  The Panel sets compensation for loss of use in the amount of $250/acre. [44]           Using the same comparables, the range for adverse effect is $1,800.00 to $2,600.00.  In this case, the access road is very long, running south to north parallel to the rural road before turning west and running midway through the land to the well site on the west.  Mr. Patry testified that he has had difficulty working around the long access road and there have been issues with the Operator using an incorrect route.  Mr. Patry also expressed a clear intention of excavating gravel on the Land.  The wellsite and access road makes planning for the project more complicated, whether or not the project eventually proves to be viable.  Due to this additional and atypical noise, nuisance and inconvenience, the Panel sets adverse effect at the high end of the range, in the amount of $2,600.00.

Uncommon Issues AltaLink Management Ltd v Robertson, ABSRB 919 Decision Date: October 17, 2016 Panel: Charles Newell, David Thomas, Don Sibbald, Q.C. Hearing Type: Initial Compensation Issue: Whether the highest and best use of the land for long term development was changed as a result of pre-effective date flooding and a post-effective date change in the Land Use Bylaw

Uncommon Issues Montana Alberta Tie Ltd. v Moser, 2017 ABSRB 204 Decision Date: March 6, 2017 Panel: Annette Clews, Gord Chapman, Karen Fraser Hearing Type: Initial Compensation Issue: Whether the Board can award compensation for impacts from structures on neighboring land

Rental Retention SRB follows court decision, Webster v. Brown, 2004 ABQB 321 Retention agreements made prior to 1985 change in Law of Property Act are not an interest in land Current landowner entitled to rentals e.g., ARC Resources Ltd. v. Nicol, 2016 ABSRB 1156

Rental Retention Bonterra Energy Corp v Calvert, 2016 ABSRB 1093 Decision Date: November 17, 2016 Panel: Gordon Chapman Hearing Type: Section 29 Request for Review Issues: Whether annual payments should be made to the landowner or to the rental retention holder Bonterra Energy Corp v Davidson, 2017 ABSRB 611 Decision Date: June 21, 2017 Panel: Ed Zenko

Rental Retention Canadian Natural Resources Limited v Wold, 2016 ABSRB 921 Decision Date: October 19, 2016 Panel: Stephen Bergen Hearing Type: Section 27 Rent Review Issue: Whether the Board has jurisdiction to hear a rent review application made by a rental retention holder

3rd Party Road Users Canadian Natural Resources Limited v Tonne, 2016 ABSRB 1105 Decision Date: November 18, 2016 Panel: Stephen Bergen Hearing Type: Section 27 rent review Issue: Whether the operator should pay additional compensation to the landowner due to a second operator using the first operator’s access road                                      

3rd Party Road Users Canadian Natural Resources Limited v Silbernagel, 2017 ABSRB 405 Decision Date: May 4, 2017 Panel: Terri Mann, Janice Kowch, Don Sibbald, Q.C. Hearing Type: Section 27 rent review Issue: Whether the operator should pay additional compensation to the landowner due to a second operator using the first operator’s access road

3rd Party Road Users Canadian Natural Resources Limited v Penner, 2017 ABSRB 699 Decision Date: July 13, 2017 Panel: Stephen Bergen Hearing Type: Section 27 rent review Issue: Whether the operator should pay additional compensation to the landowner due to a second operator using the first operator’s access road