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Rights of surface owners

Excerpts from an address before the WSGA convention by the Hon. N.E. Tanner, Alberta Minister of Land and Mines, Canadian Cattlemen, March 1949

Prior to 1887 those who received title to their land whether homesteaders or whoever they were, got the mineral rights along with the surface. However, following that time the mineral rights were reserved to the Crown, with the exception of large grants of land which were given to the Canadian Pacific Railway at the time they built the Trans-Continental Railway, and the Hudson’s Bay Company at the time the Dominion Government made settlement with that company, and the C and E Corporation when it built the Calgary-Edmonton line. All of these companies received large grants of land and with these grants went the mineral rights. Up until 1905 when any of these companies sold the surface, the mineral rights were included, and between that and 1910 they all discontinued selling the mineral rights with the surface rights, and retained the mineral rights in their own name. The amount of minerals held under freehold is about 16 million acres, or one-tenth of the total area of the province. However, it is interesting to note that about half the oil being produced today is produced from freehold land.

Principle involved

In all countries it is a recognized principle that anything done in the public interest, such as building a railway, a highway, a canal, power lines, etc., or in mine development or oil drilling, it is right and proper that those engaged in any of the projects should not be stopped or impeded by any individual land owner. Therefore, arrangements have been made in all countries by legislation whereby those engaged in such projects are required to pay the individual owner over whose property they are to traverse, or for property which will be destroyed, full compensation for severance, damage, inconvenience, etc.

Right of Entry Arbitration Act, 1947

In Alberta, up until about 1938, district court judges decided what the compensation would be and the amount of land that would be required for the drilling of wells, but owing to the fact that different district court judges were dealing with right of entry and that there was no uniformity throughout the province, it was decided to authorize the Board of Public Utility Commissioners to deal with these cases. From that time until about 1946 the Board of Public Utility Commissioners dealt with all applications; however, when oil development began to go forward at such a rapid rate, the work became too heavy for the board, and the Right of Entry Arbitration Act was passed setting up a board to deal with these cases.

The situation is this: If an oil company wishes to enter on a man’s property for the purpose of oil development, he must make satisfactory arrangements with the owner and occupant of the surface. If this cannot be done, the lessee of the mineral rights makes application to the Right of Entry Arbitration Board, and the board, at a hearing at which both parties are invited to attend, determines the amount of land to be used and also the compensation that is to be paid for the property destroyed, severance, damage, inconvenience, noise, etc. The point which I would like to emphasize is that no oil company or its representatives has any right to enter on property until it makes satisfactory arrangements with the owner or has been authorized to enter by the Right of Entry Arbitration Board. Section 8 of the act dealing with right of entry states: No operator shall have the right of entry, user or taking of the surface of any land for the removal of minerals or for or incidental to any mining, or drilling operations: or for the laying of pipelines and erection of tanks, stations and structures on such lands until he shall have obtained the consent of the owner of such surface rights and the occupant thereof or shall have become entitled to entry by reason of an order of the board made pursuant to this act.

Apparent Satisfaction

No ranchers have made application to the Right of Entry Arbitration Board up to the present time. Therefore the only conclusion we can come to is that they have been able to make satisfactory arrangements with the oil companies. If this is the case it is a credit to both the ranchers and the oil companies.

Whenever an oil company enters upon any Crown lands which have been leased, all cases are referred to the Right of Entry Arbitration Board to decide what land is required and what remuneration shall be required in so far as the province is concerned. The reason for this is that we want uniformity throughout the province; it is not because we are not in a position to make satisfactory arrangements with the companies. I am sure that you can see that if we as a government made one deal with one company and one with another, we could be accused of discrimination in different cases under different conditions; therefore, it was decided to refer all cases to the Right of Entry Arbitration Board. c

For more of the past from the pages of our magazine see the History section at canadiancattlemen.ca.

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