Under Section 12 of the Surface Rights Act; if an operator and a landowner/occupant fail to reach an agreement regarding access to the land and/or compensation, the Board may grant right of entry.
The primary role of the Surface Rights Board is the issuance of the Right of Entry Order. The right of entry may be granted by the Board on both private and crown land for the following activities:
- mineral extraction and drilling whether the activity occurs on the tract under which the rights exist or from other lands through use of horizontal wells
- Roads to connect mining or drilling operations on adjacent lands
- construction, operation and removal of pipelines, power lines or telephone lines
- construction of tanks and other structures related to the above
- Drilling or operation of a well, or installation of pipelines to and from a well, that is used for various conservation purposes such as re-pressuring, storage or obtaining water for such purposes
- exploration (Public Lands Act)
- enabling reclamation in limited circumstances
The process for application for Right of Entry is set out in section 15 of the Surface Rights Act. The Operator must file an Application with the Board along with other documents including a properly outlined plan, and an approval from the Energy Resources Conservation Board (ERCB). After the application is filed the landowner and all other Respondents are served with the Application. Service of the Application may be personal service (handing the document to the respondent) or by registered mail to the last known address ( usually the address contained on the Certificate of Title).
The Order may be granted without a hearing after 14 days. However the Board has discretion to hold a hearing if the landowner objects within 14 days of being served with the application and the Board determines that the reasons provided for the objection warrant a hearing.
Orders must specify the portion of land they apply to and any conditions the Board considers necessary (s. 15(6)) of the Surface Rights Act. The legal effect of the right of entry order is significant and outlined in section 16 of the Surface Rights Act. The operator through the right of entry order obtains all rights to the surface to conduct its operations other than a right to a certificate of title or the right to take sand, gravel and clay. The operator also has the right to excavate and disturb the land as necessary for the operations.
Prior to applying for the Right of Entry Order the Operator must first contact the landowner/occupant and seek their consent for access. If the parties are unable to reach an agreement the Operator may apply for a right of entry Order.
Operators who obtain a right of entry order must pay an “entry fee” prior to entry which is in addition to any compensation payable (s. 19) of the Surface Rights Act. If the operator takes no steps to exercise its rights under the Right of Entry order, the order can be terminated if not acted upon within 2 months (s. 28) of the Surface Rights Act. The Board also has the jurisdiction to rescind or amend Right of Entry Orders (s. 29) of the Surface Rights Act.
Once the Right of Entry order is granted the Board is required to hold a hearing to determine compensation (section 23) of the Surface Rights Act (see compensation hearing)