Overview

If parties are unable to reach an agreement through facilitated negotiations, the Board may hold a hearing to resolve the dispute. Hearings may be done entirely through written correspondence, or they may be orally and in-person.

Oral hearings to determine compensation are usually done in-person near the subject lands. They generally take place in a meeting room, although they can occasionally take place in a courtroom. They are conducted by a panel of one to 3 Board members and are open to the public. In the event that the panel involves 3 members, one member will chair the hearing.

During an oral hearing, each side is given the opportunity to present evidence supporting their position and to rebut the other side’s evidence. This process somewhat resembles court proceedings, but Board hearings are not as formal and do not have to obey all of the processes of a court.

For information on how to get ready for a s. 27 compensation review hearing, see How to Prepare for a Hearing of Annual Compensation.

In addition to in-person hearings, some oral hearings may be conducted by telephone or video conference. If you are interested in attending an in-person or telephone/video conference hearing, contact Board administration for more information on upcoming hearings.

Representation

In accordance with Rule 9 of the Surface Rights Board Rules, you may be represented by a lawyer or a person other than a solicitor.

Note that if you choose to be represented, any notice given to the representative will be considered as notice to you. If the representative retained is not a lawyer or licensed land agent, an Appointment of Personal Representative (PDF, 1.5 MB) form must be completed and filed with the Board. If the representative is a lawyer or licenced land agent, they must notify the Board in writing that they represent the party.

If your representative ceases to act on your behalf, you must send written notice to the Board immediately.

Evidence

The Board’s decision will be based on the evidence put before it on the day of the hearing. You should bring anything that you think will assist the Board in determining compensation. You may bring any relevant documentary evidence including:

  • pictures
  • agreements
  • evidence of correspondence

You may wish to have an appraisal completed or expert report composed to support your claim.

You must bring enough copies of all written material that you will be presenting at the hearing for the panel, the other party, and one extra to be marked as the exhibit. To be safe, bring at least 5 copies.

You must submit evidence to the Board and other party prior to the hearing. Rule 29 of the Surface Rights Board Rules lays out whom you must give evidence to and when.

Hearing process

Hearings are conducted pursuant to part 4 of the Surface Rights Board Rules.

Hearings to determine compensation are conducted pursuant to section 23section 27, and section 30 of the Surface Rights Act. A hearing regarding compensation may be scheduled any time after the Right of Entry Order has been issued. Typically, the hearing is scheduled following at the pre-hearing DRC based on the preferences of the parties and the availability of the Board.

Board hearings are generally more formal than a Pre-Hearing Dispute Resolution Conference, but less formal than a court hearing. The Panel is not required to abide by the same rules of court and rules of evidence that courts are required to follow, but they will usually take into account the rules established in the Surface Rights Board Rules.

If you choose not to attend, the hearing can proceed and a decision can be made in your absence. For more information see Rule 28(g) and Rule 30 of the Surface Rights Board Rules.

Hearings generally follow the format laid out below:

Before the hearing

The Board chooses the time, date, and location for which a hearing will take place. Factors taken into consideration may include:

  • the location of the land at issue
  • the proximity of the location to the landowner’s residence
  • the availability of facilities to host the hearing
  • the availability of the parties respective solicitors, should they choose to retain legal counsel

If a hearing needs to be adjourned or rescheduled, it is done pursuant to Rule 25.

For more information, see:

A Notice of Hearing will then be mailed to all parties who are considered a part of the proceeding. (Rule 24 of the Surface Rights Board Rules.

If you plan to bring any written material to the hearing, you must provide one copy for each of the Board Members (there will typically be one or three board members), one copy to be marked as an exhibit, and one copy for each of the other parties. For more information, see Rules 29 and 30 of the Surface Rights Board Rules.

Step 1. Introduction by the Board

  • At the beginning of the hearing the Panel Chair will introduce the Board Members.
  • The Chair will also ask for the parties and their representatives to introduce themselves. It is useful to bring business cards to provide to the Board, if available.
  • The Chair will then outline how the hearing is going to take place and what the parties’ responsibilities are.
  • If the matter relates to a Right of Entry Order, the Board will inquire as to whether the entry fee and 80% of the last offer have been paid.
  • The Chair will explain the role of the Surface Rights Board and the purpose of the hearing.
  • The Chair will also declare the panel’s right to ask questions at any point during the proceedings.

Step 2. Opening statements

At this point the Board will ask the parties to briefly outline their positions.

Step 3. Applicant’s presentation

  • The applicant shall be the first to present his/her evidence and testimony.
  • For examples of the evidence you can bring to a s. 27 compensation review hearing, see Compensation Review Sample Evidence Sheet.

In the case of an application for a new taking under a Right of Entry Order, the operator is the applicant. In the case of a party asking for a determination of compensation, a review of annual rental payments or for a determination of damages, the landowner (or other occupant of the land) is the applicant.

  • The applicant will have the opportunity to outline his/her position in more detail and call any witnesses they may have (including the applicant themselves).

Questioning of the applicant’s witnesses

  • The applicant will call his/her first witness and will have the first opportunity to ask them questions. The witness will be asked by a Board member to swear an oath before questioning begins.
  • The respondent will then have the opportunity to question the witness (otherwise known as cross-examination).
  • The applicant will then have an opportunity for a rebuttal. This means they will be given the chance to ask the witness any questions that relate to information that arose out of the respondent’s questions.
  • The Board will then have the opportunity to ask any questions they may have of the witness. The witness will then be excused.
  • This process will be repeated for each of the applicant’s witnesses.

Step 4. Respondent’s presentation

The respondent will be given the chance to outline their position in more detail and call any witnesses they may have (including the respondent themselves) to give testimony.

Questioning of the respondent’s witnesses

  • The respondent will call their first witness and will have the first opportunity to ask them questions. The witness will be asked by a Board member to swear an oath before questioning begins.
  • The applicant will then have the opportunity to question the witness (cross-examination)
  • The respondent will then have an opportunity for a rebuttal.
  • The Board will then have the opportunity to ask any questions they may have of the witness. The witness will then be excused.
  • This process will be repeated for each of the respondent’s witnesses.

Step 5. Applicant’s rebuttal evidence

The applicant will be given the opportunity to present any evidence (including calling additional witnesses) in order to rebut anything new that arose from the respondent’s presentation.

Step 6. Summation and Final Arguments by the applicant

The applicant will be given the opportunity to sum up his/her position and to give an oral argument.

Step 7. Summation and Final Arguments by the respondent

The respondent will be given the opportunity to sum up their position and to give an oral argument.

Step 8. Applicant’s rebuttal arguments

The applicant will be given the opportunity to present any rebuttal argument relating to anything new that arose from the respondent’s argument. This is not an opportunity to simply restate arguments that have already been put forth by the applicant.

The Board has the discretion to ask for written arguments instead of oral arguments. If this occurs the panel will set deadlines for which the arguments must be received by the Board. The panel may refer to these arguments as submissions.

Step 9. Application for costs

The Board will ask the parties if they wish to make any claim for costs related to preparing for and attending the hearing. If costs are to be reserved, the Board will set deadlines for any submissions regarding costs to be received by the Board.

Step 10. Close of the hearing

The Board will close the hearing if all the issues have been thoroughly dealt with. The written decision of the Board will issue some time later and be mailed to all parties. Occasionally the Board may request additional submissions after the close of the hearing.

Compensation and reimbursement

The operator is required to prepay compensation in accordance with section 20 of the Surface Rights Act. Prior to entering the land, the operator must pay the respondent 80% of the last offer regard regarding the first compensation year.

Compensation factors

A number of factors are included in section 25 of the Surface Rights Act regarding how the Board will determine the amount of compensation payable. The Board may also consider its own past decisions. Compensation may be a one-time payment or an annual rental payment.

Reimbursement

Reasonable costs will be considered by the Board for reimbursement. Refer to section 39 of the Surface Rights Act and Rule 31 of the Surface Rights Board Rules.

Reconsideration and appeals

The Board may rehear a matter according to section 29 of the Surface Rights Act. See Requests for Reconsideration for more information. You also have the right to appeal the Compensation Order to the Court of Queen’s Bench pursuant to section 26 of the Surface Rights Act.

For more information, see Surface rights disputes – Appeals.

Contact

Connect with the Surface Rights Board:

Phone: 780-427-2444
Toll free: 310-0000 before the phone number (in Alberta)
Fax: 780-427-5798
Email: [email protected]

Address:
1229 91 Street SW
Edmonton, Alberta  T6X 1E9