If the operator and landowner (or occupant) cannot agree on a rate of compensation by the end of the fourth year, whichever party wishes to have the rate of compensation reviewed or fixed may make an application to the Board pursuant to section 27 of the Surface Rights Act.
Summary of process
- A Review rate of compensation form from the Surface Rights Board requesting a hearing to determine the new rate of compensation. On this form, the party making the application must indicate the amount of annual compensation currently being received and the amount of annual compensation being requested.
- A copy of the original lease or Right of Entry Order and copies of any amendments to it.
- A copy of the plan of the leased area (this should have been attached to the original lease or Right of Entry Order) and any amendments.
- Either (a) Copies of correspondence to and from the operator pertaining to negotiations with regard to the review. Or (b) detailed information about when and how the negotiations took place.
- Any other material the party applying considers to be relevant
Before you apply
Under section 27 of the Surface Rights Act, parties to a Surface Lease or Right of Entry Order are entitled to a review of the compensation every 5 years.
The operator is responsible for giving notice that a 5-year anniversary is approaching, but the review can be requested by either party. If either party indicates that it wishes to have the rate of compensation reviewed or fixed, the parties shall enter into negotiations in good faith.
Parties cannot apply before the 5-year anniversary date. You must wait until the end of the year.
If the parties are unable to agree on a rate of compensation, the party desiring to have the rate of compensation reviewed or the compensation fixed (major transmission line) may apply to the Board.
For more information on a compensation review, refer to the following:
- Compensation Review: Sample Evidence Sheet (PDF, 0.4 MB) – Examples of the evidence you can bring to an s.27 compensation hearing.
- How to Prepare for a Hearing of Annual Compensation – Information for how to get ready for an s. 27 compensation review hearing.
- Alternative Dispute Resolution for Compensation Review (PDF, 0.6 MB) – Information on Alternative Dispute Resolution including Dispute Resolution Conferences and Mediation.
- Guide to Review of Annual Compensation
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You will need the following forms to complete the How to apply section of this page.
- Application Form – Review Rate of Compensation (PDF, 1.5 MB)
- Appointment of Personal Representative (PDF, 1.5 MB)
- Board Order Request Form (PDF, 0.7 MB)
Every 5 years, the following process is followed to review the rate of annual compensation owed for Right of Entry Orders and surface leases. 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 5-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
- 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.
Step 1. Operator gives notice of opportunity for compensation rate review
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 one of the following:
- that the operator wishes to have the rate reviewed
- that the landowner or occupant has a right to have the rate reviewed
- when no rate has been fixed, that the landowner or occupant has a right to have one fixed (subsection 27(5) of the Act)
Step 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).
Step 3. Enter into negotiation if either party wants to review rate of annual compensation
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 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.
Step 4. If an agreement cannot be reached, either party may submit an application to review 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 a Review rate of compensation (PDF, 1.5 MB) to the Board.
The Board will then begin proceedings to help review or fix a rate of annual compensation.
You can request a copy of your Right of Entry Order by filling out the Board Order Request Form (PDF, 0.7 MB)
Step 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):
- identification and simplification of issues
- which facts can be agreed upon
- whether issues can be settled
- exchange of information
- hearing dates, if necessary
Mediation for surface rights is encouraged, and may be facilitated by Board Members.
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 2 methods described in the Surface right of entry compensation.
Step 6. If an agreement could not be reached through mediation or the DRC, parties go to an oral hearing
An oral hearing is scheduled 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.
Step 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 Surface rights disputes – Appeals.
Instructions for filling out each section of the application.
Section 1: Applicants
- State the name, current mailing address, contact information, and preferred method of contact for the applicant (the person who is requesting the review of the rate of compensation). If the person making the request is a corporation, give the corporation’s contact information and the name of the person speaking on behalf of the corporation.
- Section 1(a) (if applicable): Give the name, current mailing address, contact information, and preferred method of contact for the person acting on behalf of the person making the application. If the representative is not a lawyer or licenced land agent, they may only represent the applicant after the applicant completes the Appointment of Personal Representative (PDF, 1.5 MB) form. The personal representative form may be sent along with this one, but must be signed by the applicant.
- Section 1(b) (if applicable): If the person making the application is not the landowner, give the landowner’s current name, current mailing address, and contact information to the best of your knowledge.
Section 2: Operator (if applicable)
- If the application is not being made by the operator, include the operator’s name, current mailing address, and contact information to the best of your knowledge.
- With respect to a Board Order if you believe that the operator has changed since the order was last amended (for example, the corporation running the site was bought by another corporation), give the contact information for the operator as it appears on the last order, and include the new corporation in Section 3 of the form. You may also want to inform the operator that they should apply to have the order amended to reflect the change.
Section 3: Other Parties (if applicable)
- Give the name, current mailing address, and phone number of any other parties who could reasonably be expected to be affected by changes to the Board Order.
- Other parties may include anyone with a caveat on the land, renters and other occupants of the land, new names of the operator corporation, and neighbours that have a legal interest in the lease.
- If more space is needed, give the information for additional parties on a separate page.
Section 4: Lands
- Legal land description: State the legal land description from the Board Order or Surface Lease in the form of Quarter‐Section‐Township‐Range‐Meridian. If there is a Legal Subdivision (L.S.) this must also be included in the land description. Example: SW 1/4 – 32‐52‐24‐W4M (L.S. 6).
- Certificate of title No: Give the certificate of title number (if applicable) example: No 123 456 789 +1.
Section 5: Notice
- Operators shall give notice to the lessor or respondents about their right to ask for a review of compensation, and the parties must inform operators if they want such a review. Check the box or boxes that apply and give the dates that notice was sent.
Section 6: Information regarding dispute
- Declaration: parties should attempt to reach an agreement through negotiation before applying to the Board. Check box to confirm that you did negotiate in good faith to find a resolution but the negotiations were unsuccessful. Note that subsection 27(6) of the Surface Rights Act specifically instructs parties to attempt negotiation before applying to the Board.
- Issues where the parties disagree: Summarize the nature of the dispute. Explain what issues you have agreed on through negotiation and what issues you need the Board’s help resolving.
Section 7: Type of activity
- In a few words, say what kind of operation it is (for example, oil well, oil well and road, or power transmission line)
Section 8: Date of the original document
- Give the date that the original Right of Entry Order was issued or the effective date of the surface lease agreement.
Section 9: Dates of any amendments to original document/plan (if known)
- Give the dates of all amendments made to the Right of Entry Order or surface lease agreement.
Section 10: Effective date of review
- Give the date when the review will officially take effect. This is usually a 5-year interval of the date of the original Right of Entry Order or surface lease agreement from section 8, regardless of when the operator gave notice and how long negotiations took. However, the effective review date can sometimes change; see the Notice Guidelines for more information.
Section 11: Number of acres covered under document
- Give the total land area that the operator has access to in the Right of Entry Order or surface lease agreement, as currently amended.
Section 12: Current rate of compensation
- State the rate that the operator is currently paying.
Section 13: Amount of compensation requested by applicant
- State the rate of compensation you are asking the Board to award.