How compensation is determined
Once a Right of Entry Order has been issued, the Board has the authority to hold proceedings to determine how much compensation is payable and to whom, pursuant to section 23 of the Surface Rights Act.
The Board’s objective in this process is to assist the parties to resolve their dispute about compensation.
If the parties reach an agreement during these proceedings, the Board may adopt their agreement an as an order of the Board (see Settlement agreement below for more information). If they fail to reach an agreement, the Board will hold a hearing and issue a binding order.
The Board may consider the following factors when helping to determine the rate of compensation, as listed in subsection 25(1) of the act:
- the amount the land granted to the operator might be expected to realize if sold in the open market by a willing seller to a willing buyer on the date the Right of Entry Order was made
- the per acre value, on the date the Right of Entry Order was made, of the titled unit in which the land granted to the operator is located, based on the highest approved use of the land
- the loss of use by the owner or occupant of the area granted to the operator
- 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
- the damage to the land in the area granted to the operator that might be caused by the operations of the operator
- any other factors that the Board considers proper under the circumstances
Previous decisions of the Board and the Courts may be of assistance when attempting to understand how the Board may decide a particular matter. Refer to Alberta Surface Rights Board – Decisions.
How disputes are resolved
For new rights of entry, if an operator wishes to exercise its right of entry on freehold land, it must first pay an entry fee (section 19 of the act) as well as 80% of the compensation offered in the written offer filed with the application (section 20 of the act). The Board will generally follow the following procedures when assisting the parties to resolve their dispute about compensation:
Step 1. Negotiation
The Board encourages parties to negotiate rate of compensation on their own. A majority of disputes are settled through negotiation and never require the Board to intervene. If the parties are able to reach an agreement on their own, see Settlement agreement below for information on how to enact that agreement.
Step 2. Pre-hearing dispute resolution conference and mediation
Upon the issuing of a Right of Entry Order, Board Administration will schedule the parties to attend a telephone Pre-Hearing Dispute Resolution Conference (DRC) to determine how to proceed further (rules 18 and 19 of the Surface Rights Board Rules. If requested by the parties, mediation may be scheduled to aid the parties in settling the matter (rule 20 of the Rules).
If the parties come to an agreement at any time during the DRC or mediation process, they can end the process. See Settlement agreement below for more information.
Step 3. Oral hearing
If parties are unable to reach an agreement about the rate of compensation, an oral hearing may be held. For more information on hearings and decisions, refer to Part 4 of the Surface Rights Board Rules and the Oral hearings for surface rights disputes page. After a hearing is held, the Board will issue a decision and order determining compensation.
Step 4. Appeals
In a majority of cases, the operator and the landowner (or occupant) will reach an agreement on their own without using the Board’s dispute resolution services.
Settlement by agreement is the Board’s preferred outcome, as it saves each side time and often results in both sides being more content with the outcome.
When the parties reach an agreement, they may sometimes sign their agreement without ever coming to the Board. They also have the option of asking the Board to adopt their agreement as a Board Order.
For a new operation, if the parties reach an agreement they may enter into a surface lease. Or if the parties have reached an agreement on compensation with respect to a Right of Entry Order they may request that the Board adopt their agreement as an Order of the Board. This can be done by requesting a Board Order without an oral hearing pursuant to Rule 27 of the Surface Rights Board Rules.
If the parties reach an agreement and sign a surface lease there is no need for Board involvement.
If the parties want to enter a surface lease agreement but the operator has already applied for a Right of Entry Order, it should cancel its request with Board Administration. See Apply for surface Right of Entry Order.
If the Board has already issued a Right of Entry Order for the new operation, and the parties then come to an agreement and has signed a surface lease agreement, the operator may then apply to have the Board’s Right of Entry Order terminated pursuant to section 28 of the act. This termination may be done without a reclamation certificate.
For more information, see Terminate surface Right of Entry Order.
Settlement agreements (5-year review)
Parties may also reach an agreement for an existing operation undergoing its 5-year review of the annual compensation.
If you have a surface lease you have 2 options:
- the parties shall amend the lease, or
- enter into a new lease
If you have a Right of Entry Order, the parties shall complete the Review the Rate of Compensation (PDF, 1.5 MB) form and provide a copy of the written agreement.