Alberta Energy Regulator’s (AER’s) surface agreements registry has no teeth, Alberta Surface Rights Group claims

Surface agreements registry has no teeth, landowners advocate claims by Paul Everest, January 7, 2014, Mountain View Gazette
The province’s new Private Surface Agreements Registry does not have any teeth for aiding in the enforcement of contracts between landowners and energy companies, the Alberta Surface Rights Group’s (ASRG) president said last month. On Dec. 3, the Alberta Energy Regulator (AER) unveiled the registry, under which landowners and property occupants can now register surface agreements made with energy companies operating on their properties. “If a landowner feels that a company is not meeting a term or condition of a registered agreement, they can request that the AER intervene,” an AER media release states. “If the AER determines that the company is not meeting the terms of the agreement, it can issue an order (for the company) to comply.” [Why would the AER, now 100% funded by industry and headed by ex-CAPP creator/Chair and ex-VP Encana/Cenovus advisor Mr. Gerard Protti, find against any company that butters its bread?]

But Don Bester, who has 30 years of experience with surface rights agreements and currently heads the ASRG, which advocates for thousands of landowners across the province, said on Dec. 23 the AER has no legal grounds to step in if there is a breach of contract between a landowner and an energy company. “It’s an agreement between two parties,” said Bester. “The AER cannot get involved in an agreement between two parties.” The only recourse property owners have if an energy company does not live up to the conditions of an agreement, Bester added, is to take the company to court. Furthermore, he said, if the AER did try to intervene, the energy company could take it to court for interfering.

The province should therefore get rid of the registry, he said. “All it is is just an empire-building scheme,” he said. “How many people do you think it’s going to take to administrate this thing?”

When the Mountain View Gazette contacted the AER for comment on how it could legally intervene in a dispute between a landowner and an energy company, it was pointed to a section of Alberta’s Responsible Energy Development Act that focuses on the enforcement of private surface agreements. “If, on the request of the owner or occupant of land in respect of which there is a registered private surface agreement, the Regulator determines that the holder of the registered private surface agreement is not complying with a term or condition of the registered private surface agreement, the Regulator may issue an order directing the holder to comply,” the act states.

When the Gazette asked for further clarification from the AER about the legal means in which it could enforce agreements between a landowner and an energy company operating on the landowner’s property, an AER spokesman responded with an email stating “The legislature debated and then passed and proclaimed legislation that gave the power to the AER to carry out the rules outlined in the Responsible Energy Development Act, including the section on the Private Surface Agreements Registry.” [Emphasis added]

AER [previously ERCB] launches new tool to protect landowner rights News Release by AER, December 3, 2013
As part of phase 2 implementation of the Responsible Energy Development Act, the Alberta Energy Regulator (AER) has launched the Private Surface Agreements Registry (PSAR).

Under PSAR, landowners and occupants can register surface agreements made with energy companies operating on their property. If a landowner feels that a company is not meeting a term or condition of a registered agreement, they can request that the AER intervene. If the AER determines that the company is not meeting the terms of the agreement, it can issue an order to comply.

“This is another great example of how the Alberta Energy Regulator is working with Albertans to help ensure responsible energy development in their communities. It also means that the regulator will be better equipped to address the interests of landowners, considering all parties involved in development,” said Minister of Energy Ken Hughes.

Landowners can register surface agreements by visiting and filling out the appropriate forms. Instructional manuals and other information on the registry can also be found on the site. “It’s about accountability,” said AER President and CEO Jim Ellis. “PSAR will help landowners feel secure that energy companies will honour the agreements they’ve made.” PSAR is one of many tools the AER offers to landowners who may have a disagreement with an energy operator on their land. Landowners may also file a general complaint with the AER, to which an AER field officer will respond. Landowners may also request alternative dispute resolution (ADR), which the AER uses to resolve disputes between the public and industry. The ADR process may include negotiation, AER-led mediation, or independent third-party mediation.

The Alberta Energy Regulator launched its new Private Surface Agreements Registry on this week. The registry, known as PSAR, allows landowners and occupants to request that the AER intervene if they feel that an energy company is not meeting a term or condition of a private agreement.

[Refer also to:

Chief Justice Wittmann ruled on September 19, 2013 that the AER owes no private duty of care to any Albertan, thus why would the AER assist a “private” Albertan with a “private” agreement, no matter how public it is made or enforce any order the AER makes in regards to “private” contracts?

Subject:My upcoming meeting with the Board
Date: Fri, 23 Jun 2006 10:02:04 -0600
From:jessica <email hidden; JavaScript is required>
Reply-To: email hidden; JavaScript is required
To:Rick McKee <email hidden; JavaScript is required> [Mr. McKee was a lawyer with the EUB. He was reportedly let go after the 2007 scandal of the EUB breaking the law and spying on innocent Albertans. He requested that Ernst stand before the Board to discuss the energy regulator banishing her (and violating her Charter rights).]
CC:David Swann <email hidden; JavaScript is required>

Dear Mr. McKee,

I am pleased the Board is willing to meet with me, and that the Chair believes we can work towards resolution of my concerns.

Thank you for your voice mail yesterday. I am much on the road again and respectfully ask that we communicate by email. Thank you.

I have been thinking about my upcoming meeting with the Board and the Board’s Appropriate Dispute Resolution process. As you know, the Board’s process uses a mediator to ensure that both sides of disputes are heard, with concerns resolved fairly. You had stated to me in our meeting of June 8, 2006 that in order to for the Board and I to work together, there will be times when I will have to accept that the Board will disagree with me. In fairness to my experience working on adverse
cumulative impacts and consulting with stakeholders about those impacts, the Board will, in kind, have to accept that it will disagree with me on certain impacts that must be dealt with by the Board. A mutually agreed upon mediator will help both sides understand when it is acceptable to drop a concern or question and when not.

I understand that in addition to resolving my banishment from the regulator, the purpose of my standing before the Board is to help the regulator come to terms with the increasing, unmitigated cumulative environmental and socio-economic impacts currently facing Alberta and her people. It is my professional opinion that most impacts can be assessed by industry and discussed with stakeholders honestly and openly, with appropriate mitigation put in place before the impacts happen
(not after, as is now usually the case).

I would like to request of the Board that in order to achieve unbiased mediation, we select a mediator from out of province with appropriate accreditation who will satisfy both myself and the Board. I am willing to share half the cost with the Board for the mediator, including expenses. I think the Board’s concept of using a mediator for dispute resolution is excellent, and will suit the needs of my standing before the Board fairly and reasonably. Thank you for your time and consideration of my request.

I look very much forward to meeting the Board.

I remain, respectfully yours,

Jessica Ernst

[The EUB, then turned ERCB, now AER has not yet responded to Ernst’s 2006 email or request for mediation.]

All About Alternative Dispute Resolution (ADR) by the AER, quote below copied from this document on the Internet on January 13, 2014

ADR discussions between concerned parties and the mediator are considered to
be confidential….

2014 01 13 All about ADR Appropriate Dispute Resolution by the AER

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