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Wendy Lee



Recommendations to the Alberta Government


Recommendations to the Alberta Government

  1. When any application for a lease of mineral rights has been made, the landowner will be notified BEFORE it is granted. At that point, before the lease is granted, the landowner may object to the approval of the lease. A landowner must have full disclosure of any applications made pertaining to his land and given a fair opportunity and process to object.
  2. The board is to be set up through the Ombudsman’s office and not funded what so ever by the oil and gas companies, The board should be separate in all ways to the EUB and not have any outside income from the industry. Board members must represent all interests equally
  3. All contracts or business dealings between a landowner and any oil or gas Corporations are to be negotiated solely between the two parties and not subject to arbitration by any board. These contracts are private contracts between a non government corporation and a private landowner and any government interferences will amount to a contract under duress which under contract law nullifies the contract.
  4. Reports of any trespasses or violations should be investigated through the Ombudsman’s office and a committee that is not connected in any way the oil and gas industry or the EUB. Findings will be made public, compensation paid and fines levied to the trespasser.
  5. All leases applied for on public lands are to be posted for public approval and all adjoining properties notified of any oil and gas activity. Any Albertan, that has been a resident for over a year, may object to the lease and thus take the objection to the Ombudsman for hearing.
  6. Anyone owning connecting land to a proposed well may an objection to any oil/gas activity to the Ombudsman’s office.
  7. Grants and/or funding would be available to individuals or organizations to promote and research alternate sources of energy.
  8. Funding for Lawyers of the landowners choosing will be made available for the purpose of objecting to any oil/gas application
  9. Any directional drilling from adjoining property is subject to the premise that the landowner owns to the core and thus such drilling is also subject to negotiations and permission by the landowner. The landowner must be notified of any applications for lease which would involve directional drilling under their property
  10. The Statutes of Alberta must be changed to reflect the concerns and conclusion of this paper.



Introduction and Points for Consideration

Fifty years from now we will look back on the oil and gas industry with contempt and disgust. We will then, sadly, have the scientific knowledge regarding flaring, drilling, pipeline contamination, forest destruction and the health of our children and our planet. Alternate power possibilities have struggled against the corrupt world of oil and gas. Alternative power sources and Legislative changes will be the only way to change the course of the corporate oil and gas world and it‘s effects in our day to day life.

Oil companies were once small operations and most were family operations or that of general developers. Developers like D.A. Thomas in the Peace River country of Alberta, who drilled wells, cleared and developed land, promoted northern railways and built a steamship.

Small entrepreneurs negotiated with farmers and landowners and thus the local community benefited much more because the landowner made more money and had control over contract details. Mineral rights of the landowner became a thing of the past when the Government reserved all rights to own and lease without consent or disclosure to the landowner.

New landowners could no longer obtain mineral rights as they were owned by the Government and leased to foreign owned companies. The landowner lost control over the exclusive use of his land and the government and Corporation money train began.

Large Corporations, with heavy foreign ownership, have long since taken over the oil and gas industry in our province and the rest of Canada. We, the tax payer, the landowner and residents of Canada have lost control over the oil and gas industry and with all the Government involvement we still have no say when it is on our own land. We pay some of the highest gas and oil prices in North America as well.

Corporations have been given tax breaks, monetary incentives and the rubber stamp approval of any and all applications to develop the industry. Farmers and landowners no longer have any control or choice as to the clearing, drilling or pipeline activity on their own lands. The compensation amounts to the landowner are the decisions between the government and the oil and gas Corporations.

Any disagreements of compensation paid to the landowner are taken to an arbitration board, ran, operated and funded between the Alberta government and the oil corporations. The EUB is 75% funded by the oil companies directly, an obvious conflict of interest and a mockery of our justice system.

*Fees set by the oil companies and the government, paid to the farmer or landowner,  have remained low and have been capped, disabling the normal process of a free enterprise system of negotiation and contract. This control of the fee paid to the landowner is an unfair fixed pricing which prejudices the landowner.

The average 2.2 million per producing well, that the Corporation receives. Many corporations own thousands of wells in Western Canada and the monthly drilling list is a long one.

To fight a well is known and considered a lost cause. It is common knowledge and statistics prove out that the EUB (Energy and Utilities Board) will deny almost any objection to an application.

*The Government funds the EUB only partially and the bulk of their operating capital comes from the oil and gas Corporations – 75%. Hardly an unbiased organization.

The whole exercise of the EUB and the thousands of objections that they deny each year, is a supreme money train for a highly overpaid group of lawyers, specialists, board members and experts. The landowner or organization sometimes, upon application, is given a token for their time $500.00 – $1000.00, if they are lucky. The Corporations and the EUB do not consider the fact that it may cost the landowner thousands (not to mention the emotional strain put upon families and neighbors) trying to fight the well.

The land owner’s motives to object to an oil well (that would provide compensation to him) and stand by his values and concerns for his family’s health and welfare and his environmental conscience should not be on trial. Nor should they be questioned.

Where are the Canadian studies on health and sour gas flaring? Where is the funding for health studies? Where is the funding for Alternatives Power Sources?

Experts on water, risks, erosion etc., who, many time do not even visit the site, punch out reports on their computer programs and are paid up to 50 thousand or more for a few pages of information that is regurgitated from hearing to hearing. Then they are paid $2,000.00 more or less, per day, to attend the hearings to present their reports. Much of this expert testimony is double talk to the lay person and in investigation of one such report, the writer found the report to be totally bogus. The information had been obtained from an airport data base 85 miles away from the site (which he had not visited). Many experts will show up at hearings to give testimony, all spouting their so called expertise while the landowner is left on his own or with a lawyer (paid by the oil company). Many of these ‘experts’ do nothing else but go to hearings and have made highly profitable businesses going to hearing after hearing. The Corporations know these ’experts’ and all is understood between them. All moneys paid out by the Corporations are just a tax receipt and good insurance. The money train is crowed.

If it were not so serious it would be a joke. In a hearing, the room is full of people; almost all paid by the Corporation, except for the landowner.

At last viewing, of the Statistics, out of ten thousand objections only 28 were granted, many of which were appealed by the oil company and later the decision was granted in favor of the Oil/gas company. Funding to the landowner stops after the first hearing and no funding is provided for appeals.. The reason for those was obscure as well, and many companies just changed a few things and the Corporation eventually got their approval to drill.

Too much money is floating around for those on the money train, to have anything change. The farmer, the environmentalist the child with asthma does not stand a chance against the slick and well-greased money train to have their voice heard and their rights as a landowner upheld.

The constitution says we are to have peaceful enjoyment of our land.

When a family home is surround by over 250 oil and gas wells in a 6 mile radius, and they do not have the resources to go to yet another hearing, will they have no other choice but to give up?

Should the farmer who agrees begrudgingly, to a well, be paid such small amount of money to give up his land, privacy, and well being?

Would farmers give in to Oil and Gas Corporations if farming was not so unprofitable? Would he choose to have a sour gas flare near his home if he was not so desperate to make that 5 thousand and he was paid what he was worth as a farmer? Would a farmer give in if there were not the pressure that the Corporations put upon communities by the Corporation offering a contract for gravel or water to a neighbor on the condition the landowner in question buttons up and allows the drilling?

Should a farmer not have the right to negotiate a contract with the Oil Company at his own terms? Should a private landowner not be allowed to negotiate without a cap on fees set out by the arbitration board?

The Oil and Gas Corporations are just those – Corporations. They are there to make profits but the Government fixes the rate at which the farmer will be paid for his contract with a corporate business that will make millions from the benefit of the contract.

These contracts are unconstitutional as they prejudice the landowner and constrain his business dealings with the Corporations. The contract yields high profits for the Corporation and only ‘compensational’ for the landowner. Why should a landowner be merely compensated for his land in a business contract?

*Contracts entered as a result of a lost hearing will be entered into ‘under duress’ and in contract law that renders the contract nullified.

The contract should not be legal because it is legislated to the benefit of profit Corporations and not to the tax payer who owns the land and who has a right to go into a contract for his own benefit. The landowner has no choice and is forced into an unwanted situation while Corporations (many foreign owned, with a Canadian branch of course) does their business with no resistance.

Some boast that these Corporations built the west and they have convinced some farmers that if it weren’t for them, farmers would not exist. A total misconception. Farmers, trappers, wheat fields, cattle, explorers, and thriving communities were all here before the development of the oil and gas industry. The oil companies would not be here had the farmers not helped them. Farmers struggled to survive, that is true, but it was that noble struggle that built this country and it was that noble struggle that the Corporations capitalized on and took advantage of, by paying bottom dollar to the farmer, in comparison to their own payoff.

If these Corporations gave so much to the communities then where are the communities today?

They should be thriving. But many are gone. Communities like Gordondale, right in the middle of a very active drilling area, used to be a thriving developing community. It began to die around the same time oil development began and today the community is all but gone. But the oil Corporations in the area are thriving.

It’s the same all over the province.

Countries all over the world spend millions of dollars on studies into the affects of sour gas flaring. The evidence is out there. Will we wait for another twenty years to accept these studies and recognize respiratory problems, and miscarriages as a result of flaring? Will our Government study the affects of our intrusions into our public lands by oil land clearings and thousands of miles of seismic line cut into our forests? When we decide to protect our forests and public lands what will be left?

Oil and Gas Corporations are granted the lease to mineral rights of a piece of land, by a simple rubber stamp procedure without any disclosure or notice to the landowner what so ever. The landowner has absolutely no knowledge of what money deals are happening for the mineral rights beneath him. It is the landowner that is the most affected on a day to day basis, by these decisions. Months of drilling and years of having oil and gas wells, pipelines and flaring etc. will become his life – but he is not given any notice.

When a landowner objects to a well and jumps through all the hoops to see through to a hearing (of course spending a lot of his time and money) and looses, as they all do, the same argument is made, repeated and accepted by the appointed boards. The money train relies on this.

Canadian Constitution, Canadian Charter of Rights and Freedoms

(entire text


  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It is always argued…..



So the board spews out, in their decisions, that all their standards they have set, have been met and that the Corporation has the right to drill –because they have the mineral rights. Drilling is approved. Objection denied.

The argument is the same and so is the decision. So what is all the exercise of a hearing about? Just a money train they have created. A make work project. A tap-dance for public records. A monster they like and feed.

When a company directionally drills on a property they can contaminate drinking wells and ground water, limit the landowners ability to have geothermal heating systems – a ever growing alterative GREEN method of heating that will further in years to come. Many landowners will be unable to have such a system because of directional piping under them.



Cuius est solum, ejus est usque ad caelum et ad inferos

Subsurface; Below the Surface

“No man but feels more of a man in the world if he have a bit of ground that he can call his own. However small it is on the surface, it is four thousand miles deep; and that is a very handsome property.” Charles Warner (1871)


When a landowner owns his property, what does he own? How far below the surface and how far above?

Land titles refer to the “carrot principle” when considering how deep and how high the landowner’s “airspace” goes.

Technically we own our land down to the core and well above we own our airspace.

An example of owning “airspace would be a developer’s right to sell condominiums based on ‘strata’. The actual height and measurements of where the potential condo will reside. If your condo on the 7th floor burnt down you would still own that ‘airspace’

Thus being the case we should have the right to protect our ‘air space’ that we own above our land.

Corporations allowing particles from flaring, odors etc. to enter our ‘airspace’ should be sued or fined. Countries receiving such environmental attacks would fine the offending country for polluting their airspace.

Also, for those corporations that choose to directionally drill under someone’s land, they would still be trespassing through someone’s property. The land underneath your surface property is ‘owned’ by you. Sure, The government leases the oil or mineral rights but not the land.

These avenues of accountability should be explored.

In Canada, it seems, there is no case law consensus on the exclusivity of a landowner to the “depths of the Earth.” The only precedent around seems to be Edwards v. Sims, which was a split decision and which dealt more with equity than with subsurface rights.

One issue, which appears to be law in many Canadian provinces, is the reservation of mineral rights to the Crown. Under common law and the feudal system, the grant of land usually included all minerals except gold and silver, which, if discovered, belonged to the Crown or land Lord. But provincial laws have changed that in certain provinces. The rights of a fee simple owner in Alberta are not extended to include mineral rights. In England, all coal and petroleum belongs to the Crown. Thus, the Crown can take advantage of its status of original grantor of the land and retained mineral rights.

It is also possible for a private landowner, who owns the mineral rights, to sever these rights and to sell them as a separate estate in fee simple (i.e. capable of being sold or conveyed by will).

Atlantic Aviation v. Nova Scotia Light & Power 1965 Dominion Law Reports 554

When Nova Scotia Power built high transmission towers on land adjacent to Atlantic Aviation’s flying school, the court battle was engaged. The court reviewed case law that suggested that deliberate or malicious obstruction of airspace was objectionable as a nuisance but that otherwise land owners had a right to “erect structures on his land in the exercise of his use and enjoyment of his land, even if the obstructions interfered with the free passage of aircraft taking off and landing on an adjoining airfield. The erection and use of the towers and wires by the defendant was a lawful, reasonable and necessary use of the defendant’s air space.”

Cuius est solum, ejus est usque ad caelum et ad inferos

Latin: who owns the land, owns down to the center of the earth and up to the heavens. This principle of land ownership has been greatly tempered by case law, which has limited ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly.

Edwards v. Sims 1929 SW 619 (Kentucky)

This case tested the maxim cujus est solum ejus est usque ad coelum et ad inferos. A court ordered an inspection of a person’s land for the purposes of clarifying an action in trespass brought by a neighbor. The court accepted the maxim. “Ordinarily that ownership cannot be interfered with or infringed by third persons. There are, however, certain limitations on the right of enjoyment of possession of all property, such as its use to the detriment or interference with a neighbor.” The court drew an analogy with mine cases where it had been able to force an inspection and so it was ordered here.

Cuius est solum, ejus est usque ad caelum et ad inferos

Latin: who owns the land, owns down to the center of the earth and up to the heavens. This principle of land ownership has been greatly tempered by case law, which has limited ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly.

We are governed by common law….

Cuius est solum eius est usque ad coelum et ad inferos

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Cuius est solum, eius est usque ad caelum et ad inferos (in English, for whoever owns the soil, it is theirs up to the sky and down to the depths) is a Roman legal principle of property law that was passed down to common law and civil law systems. As the name describes, the principle is that a person who owns a particular piece of land owns everything above and below it as well. Consequently, the owner could prosecute trespass against people who violated the border but never actually touched the soil. As with any other property rights, the owner can sell or lease it to others, or it may be taken or regulated by the State.

For example, suppose three people owned neighboring plots of land. The owners of the plots on the ends want to build a bridge over the center plot connecting their two properties. Even though the bridge would never touch the soil of the owner in the middle, the principle of cuius est solum would allow the middle owner to stop its construction or demand payment for the right to do so.

By the same principle, a person who wants to mine under somebody’s land would have to get permission from the owner to do so, even if the mine entrance was on neighboring land.

The phrase was first coined by Accursius of Bologna in the 13th Century.

In Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479, the Court noted that the phrase was ‘colourful’, but said that it was well settled in the common law that a land owner had rights in the air immediately above the land, extending in particular to signs overhanging from adjacent properties. The right did not extend though to more than was ‘necessary for the ordinary use and enjoyment of the land and structures upon it’. Planes, hot air balloons, and the like, would not commit a tort of trespass by merely passing over a person’s property.

The property right to air superincumbent to land was confirmed in Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334, where a sign erected on a building that overhung the plaintiff’s property committed the tort of trepass, even though no harm or nuisance was caused by it. An injunction was granted to the landowner causing the sign to be removed.

After a lost objection must a landowner then go into an agreement with the oil company? WHY DO THEY CALL IT COMPENSATION? Do they already realize any contract is entered into unwillingly?

Economic duress ( )

Although hard bargaining occurs legitimately in commercial contracts, duress may be in the form of breaching an existing contract between the two parties unless the innocent party agrees to enter into another contract. The contract is voidable if the innocent party can prove that it had no other practical choice (as opposed to legal choice) but to agree to the contract. The Elements of Economic Duress (breakdown): 1. Wrongful or improper threat: No precise definition of what is wrongful or improper. Examples include: morally wrong, criminal, or tortuous conduct; one that is a threat to breach a contract “in bad faith” or threaten to withhold an admitted debt “in bad faith.” 2. Lack of reasonable alternative (but to accept the other party’s terms). If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met. 3. The threat actually induces the making of the contract. This is a subjective standard, and takes into account the victim’s age, their background (especially their education), relationship of the parties, and the ability to receive advice. 4. The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.

NOTE: when the government or corporations pay ‘COMPENSATION’ to landowners and the landowner is not in agreement of the amount that infers a torte has been paid off. Perhaps a civil suite for compensation might test this premise.



Property rights at risk

Tuesday February 06, 2007

Letter to the Editor, Ray Strom, a farmer from Two Hills, is charged with impersonating a licensed land agent after accepting money for advising farmers in talks with three giant energy companies between October 2002 and November 2003. If convicted he could face a fine of up to $5,000 or six months in jail. His trial, on Jan. 5-6, brought into question provincial legislation that says only licensed land agents can accept a fee for giving advice to landowners during negotiations for compensation for the use of their land. Strom, who doesn’t have a land agent’s license, works as an advocate for farmers. Following the trial, Strom said, “Ultimately the question is not whether a land agent has the right to work for the landowner, the dispute lies in the fact of whether the landowner has the right to choose their representative.” What is happening to Strom has great implications for all landowners, farmers and ranchers. If the court finds Strom guilty of having impersonated a land agent, landowners may be deprived to having the right to choose whom they would ask for assistance, advise or representation during negotiations with oil and gas companies. Limiting a landowner’s right to seek assistance would serve the purpose of isolating farmers and landowners so that they can be further victimized by large corporations. People have the right to choose whether they wish to have someone assist them in their negotiations and apprise them of their rights and what they need to be aware of — the land agent is not required to do this. In fact, land agents are prohibited by law from doing anything that conflicts with the interests of their client — the company. Land agents are working for their clients — the oil and gas industry — to acquire an interest in a farmer’s land. Their objective is to acquire this land for as little money and as few obligations as possible. There is no legal requirement for a land agent to obey EUB or Alberta Environment legislation, or even be informed about it, let alone fully inform landowners about their rights and options. Landowners have a responsibility to worry about more than the amount of financial compensation involved with a well site or pipeline. As stewards of the land, there are also many issues related to environmental impact, soil conservation and project planning that they ought to focus on. The land agent is most likely not concerned or familiar with environmental issues and people may have their valid concerns dismissed or disregarded. Once they have signed a contract, there is very little that a landowner can do to practically and effectively address problems which frequently occur in conjunction with oil and gas development. It is crucial that they address as many contingencies as possible prior to entering into any binding legal agreements. Landowners should ask themselves the following questions: why is there such concern from industry about persons who are not licensed land agents assisting landowners? Who stand to benefit if I am not able to hire someone of my own choosing to advise and assist me during negotiations? The judge in the case, Judge P. Ayotte, indicated that is was his responsibility to interpret the laws and stated that it was the legislature’s responsibility to change the laws. He intends to deliver his verdict on March 30, 2007. Iris Evans, Minister of Justice, has indicated that a review of legislation may be in order. Now is the time for landowners to make their voices heard if they don’t wish to have their property rights further endangered and/or abrogated by the oil and gas industry. Bernadette Haywood


Property and the constitution paper








Bill 57 2006

An Act to amend the Expropriations Act and t



Rights and responsibilities

9.1 (1) Every person has a right to the peaceful enjoyment and free disposition of his or her land, except to the extent provided by law.

Moral responsibility

(2) In addition to whatever duties are specified by law, every person has the moral responsibility to ensure that his or her land

is maintained to a presentable standard in keeping with such factors as the legal uses to which the land is put and the character

of the community in which the land is located.

Respect for private land and home

9.2 No one may enter onto another person’s land or into another person’s home, whether or not the person is the owner

of the home, or take anything from the land or home without the person’s express or implied consent, except to the extent provided by law.

Commencement and Short Title



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