Why should I hire a lawyer to assist in negotiating a surface rights matter?
A lawyer will ensure that a landowner is fully informed of their rights in dealing with those who seek access to land, such as energy companies. There is often a large power imbalance when a landowner is approached by a land agent. Having an experienced Surface Rights team on your side will help bring balance to the negotiation.
What is our experience?
Our combined experience in surface rights makes KMSC Law one of the premier surface rights leaders in the Province. We have assisted hundreds of landowners, occupants, and tenants in negotiations with energy companies and governments.
What are surface rights?
Surface rights are, as the name implies, the rights to the surface of a piece of land. Typically the landowner has the right to the surface of the land they own, which gives them the right to farm the land or exploit the resources (such as gravel, trees, plants and water) in accordance with any local laws, bylaws, regulations or ordinances. The surface rights do not include the mineral rights. Mineral rights are, for the most part, owned by the province (often referred to as the Crown). The province will lease those mineral rights to energy companies who then have a right to enter onto your land to extract those resources.
A previous owner of your land may have already leased the surface rights to an energy company for the purposes of extracting resources and their continued operation does not require your approval, as long as they operate within their lease, easement, or Right-of-Entry Order.
What are the legal fees like if I hire you?
KMSC Law does not typically charge landowners for representation in most surface rights negotiations – we often obtain recovery of all our fees from the energy company.
What is the Land & Property Rights Tribunal (“LPRT”, formerly the Surface Rights Board)?
The LPRT is a quasi-judicial tribunal (established by the Surface Rights Act) that grants right-of-entry orders and assists landowners and operators in disputes about compensation, access to land, damages to adjacent land or livestock, and facilitates the recovery of rental payments not paid by energy companies.
What is the Alberta Energy Regulator (commonly referred to as the AER)?
The AER’s mandate under the Responsible Energy Development Act (REDA) is to provide safe, efficient, orderly and environmentally responsible development of energy resources in Alberta. The AER operates at arm’s length to the provincial government. An energy company will provide AER notices to you if they intend to enter onto your land and extract mineral resources beneath your property (which would also include notification to your occupants or tenants). The energy company has to apply to the AER for a licence which grants them the right to extract mineral resources. These AER notices will be concerned primarily with the environment and not compensation. Compensation is dealt with separately from the AER licencing process (compensation is handled by the LPRT).
What is the Alberta Utilities Commission (commonly referred to as the AUC)?
The AUC regulates the utilities sector, natural gas and electricity markets in Alberta. The AUC also ensures that electric facilities are built, operated and decommissioned in an efficient and environmentally responsible way. You may receive AUC notices and information when an energy or utility operator intends to build on your land (for example, the construction of a new transmission power line). These notices will deal primarily with the construction and operation of the utilities on your land. Compensation is dealt with separately from the AUC process (compensation is handled by the LPRT).
What is a Land Agent?
A land agent is a person who negotiates surface rights on behalf of the agent’s principal, which is usually an oil company, power company or the government. Negotiations may pertain to highways and roads, facilities, pipelines, transmission lines or oilfield lease sites. Land agents are fully authorized to enter into binding agreements with the landowner on behalf of their principal. You should carefully consider any proposal by a land agent – they have the best interests of their principal at heart, not you.
How can I renegotiate my lease?
Landowners with existing leases or LPRT Right-of-Entry Orders have a right to a compensation review every 5 years from the original date of the lease (or order). Landowners have a legal right to representation. Contact the KMSC Law team today for more information on receiving fair compensation for the use of your land.
What does compensation review look like if I hire you?
If you hire us to represent you, KMSC Law will first approach the energy company operating on your land to initiate negotiations. If no satisfactory agreement is reached, we may commence an application to have the annual rate of compensation reviewed.
What is an expropriation?
Governments take landowners’ land rights for public projects through a legal process called expropriation. The legislation that makes this possible is the Expropriation Act. Which is different from energy companies, who use the Surface Rights Act and the LPRT. In both cases we are able to assist landowners to ensure they receive the fair compensation they deserve.
What is a surface lease?
Since the provincial government owns most subsurface mineral rights in the province, energy companies obtain mineral leases directly from the government. But it is the landowner, not the government, that owns the land above the minerals. This means that energy companies need landowner consent prior to entering onto the land and commencing operations. Consent is obtained either by signing a surface lease or by the granting of a Right-of-Entry Order from the LPRT.
Can I withhold consent to sign a surface lease?
You can for a time, but in Alberta, if a company wants access to your land to extract minerals, they almost always eventually obtain it. This does not mean negotiating agreements is futile – there are many ways you can increase rental payments, impose conditions on a surface lease or use a custom schedule to a Right-of-Entry Order.
What is a Right-of-Entry Order?
A Right-of-Entry Order is issued by the Alberta LPRT. Unlike some standard form lease agreements, a Right-of-Entry Order is always reviewable.
What is an easement?
An easement is a legal interest in someone’s property that gives the holder the right to use the property for a specified purpose. Easements are common with transmission line right of ways, where a utility company wants access to a strip of land in order to construct, operate and maintain a transmission line.
What can I do about an abandoned well on my land?
A landowner with an abandoned well on their land may eventually receive an information package from the Orphan Well Association (OWA). This package will indicate that there is a well or facility on their property that has been assigned to the OWA for decommissioning, reclamation or both. The package contains information about the OWA, the well or facility site, a landowner feedback form and a self-addressed stamped envelope. Often weeds will grow on abandoned leases, a landowner should notify the Alberta Energy Regulator if weeds become an issue. The LRPT has held that the landowner is responsible for the lease if the operator is defunct or bankrupt and in that instance, the landowner must spray for weeds.
There is an abandoned well on my land and surface payments are outstanding. What can I do?
Provincial legislation requires the Provincial Treasurer to pay rent on existing leases if the operator becomes insolvent. To receive outstanding payments, a landowner must apply to the LPRT. This is also why it is important landowners do not sign a voluntary rental payment reduction if approached by an operator or land agent.
