Land disputes can leave people feeling stuck between a rock and a hard place. The surface rights board or land tribunals step in to help sort out who gets to use the land and what’s fair. In this article, we’ll discuss how these boards or tribunals work, and how they bring clear answers to landowners and mining companies across Canada.
What is the surface rights board?
Surface rights boards are quasi-judicial bodies that settle land disputes, usually between landowners and companies seeking to use private land to explore or develop resources. These disputes usually involve oil, gas, coal, minerals, geothermal energy, or any other resources. When a company needs to enter private land for these activities, the board can step in if the landowner and the other party (such as a mining company) cannot reach an agreement.
These boards look at issues like:
- how and when a company can enter the land
- how much the landowner should be paid
- what happens if the land is damaged
- issues with the terms of a lease
- if the company does something different from what was approved
Surface rights boards exist in almost all provinces and territories, usually established by law. Each board follows its own rules, but all aim to provide a fair and independent way to resolve land access and compensation issues. This helps landowners and companies find solutions without long and costly court battles.
As an example of what this board is, watch this video from the Yukon Surface Rights Board:
To learn more about surface rights boards, reach out to the best mining lawyers in Canada as ranked by Lexpert.
List of surface rights boards
Here’s a list of all the surface rights boards and their equivalents in all provinces and territories:
- Alberta: Land and Property Rights Tribunal
- British Columbia: Surface Rights Board
- Manitoba: Surface Rights Board
- Northwest Territories: Surface Rights Board
- Nunavut: Surface Rights Tribunal
- Saskatchewan: Surface Rights Board of Arbitration
- Yukon: Surface Rights Board
For the provinces that do not have a specific board, other legal remedies are available. These include alternative dispute resolution procedures. A direct case can also be filed before the courts.
What is the job of a surface rights board?
Each surface rights board differs from one province to another, from their enabling laws to the way they operate, among other details. Aside from enforcing the law on surface rights that established them, most boards would have the same roles, such as:
- resolving disputes on surface rights
- reviewing the contract’s terms
We’ll discuss these topics below. In any case, reaching out to a mining lawyer would also help, especially when dealing with the board in your area.
Resolving disputes on surface rights
The main job of surface rights boards is to help settle disagreements between landowners and parties who want to use private land for resource projects. These disputes can be related to the following:
- compliance with the contract or lease agreement
- entry of the other party to the land and its termination
- payment to the landowner (e.g., rental or lease payments)
- terms on post-operations (e.g., abandonment, restoration)
- renegotiating any of the terms, such as the rent, after some period
- damages in case the land is damaged by the other party or for torts
Also, the provincial or territorial law that establishes its own board dictates the matters that the board can adjudicate.
Through arbitrations or mediations
To resolve disputes on surface rights, these boards have the power to conduct arbitration and mediation, which include hearings and investigations. While it is encouraged that the parties first try to resolve the dispute among themselves, the board can help them resolve their dispute if those efforts fail.
Here’s an overview of how arbitration and mediation work when done through these boards:
- mediation: with the board acting as a third-party neutral mediator, parties actively try to resolve the dispute by reaching a settlement; unlike in arbitration, the mediator cannot act as a “judge” but only facilitates the discussion between the parties
- arbitration: when parties cannot resolve the dispute through negotiations or mediation, a court-like oral hearing can be conducted, where the board decides on the issue through a panel of three or more arbitrators
- written hearings: some boards can resolve the surface rights dispute through a written hearing, where parties will be sending their own submissions; these submissions may also be required in arbitrations
The purpose of these informal proceedings is to prevent the parties from going to court when their dispute can be easily resolved among themselves or through these out-of-court processes. This is because court cases are typically more costly and lengthy compared to these services offered by the board.
Reviewing the contract’s terms
Related to the dispute resolution process, surface rights boards can also review a contract (such as a lease) that is the reason for the disagreement between the parties. For instance, the board can decide if and when the other party can enter the land, how much the landowner should be paid, and what compensation is owed for any damage or loss.
The board also reviews rental terms in surface leases and checks if companies are following the rules set out in the agreements. These boards use a fair and independent process to review each case. They can hold hearings, review written submissions, and make decisions that are communicated to all parties involved. Their goal is to resolve issues faster and help both parties move forward with their contract.
How do you apply to the surface rights board for their services?
Through the help of a lawyer, any of the parties can apply to the surface rights board to resolve their disputes through any of the proceedings mentioned above.
Necessary documents for the application
Below are some of the documents that surface rights boards may require in an application:
- notice to the other party that an application has been made
- proof of notice to the other party must be attached to the application
- documents to help describe and resolve the issue, such as:
- description of the dispute
- sketch or plan of the land
- parties' personal details
Forms are available from the website of the board you’re applying for. These may be different from each other, depending on the dispute in question. For example, Nunavut’s surface rights board has different online forms if the dispute is related to entry and compensation, among others. There is also a different form when applying for an interlocutory order.
How can lawyers help clients when dealing with surface rights boards?
This video shows how lawyers can help landowners on several issues on surface rights:
Need professional help in dealing with the surface rights board of your province or territory? Consult these Lexpert-ranked best mining law firms in Canada.
Advantages of having a lawyer
Whether you’re a landowner, occupant, or operator, here are some considerations if you’re deciding whether to hire a lawyer when dealing with surface rights boards:
- learn about one’s rights and privileges: lawyers help clients understand their rights and explain what the board can and cannot do and what to expect from them
- legal help with application process: lawyers can guide clients through the process, from filing an application to preparing for hearings or written submissions
- evidentiary and documentary support: lawyers can gather the right documents and evidence to support their client’s case, which can include proof of land ownership, records of past agreements, and any damage or loss caused by a company’s entry to the land
- guidance in any process: lawyers help with negotiations or mediation before a hearing, which may lead to a faster and less stressful solution; in case of an unfavourable decision, lawyers can guide clients in requesting for a review or reconsideration
With a lawyer’s help, you can feel more confident when dealing with surface rights boards. These legal experts will make sure that you understand your options and help you get fair treatment throughout the entire process.
Surface rights boards: Guiding parties to the right path
Surface rights boards give landowners and companies a fair way to settle land use issues. With clear rules and a focus on fair compensation, they help both sides find common ground. This means fewer headaches and more peace of mind for everyone involved.
If a dispute feels too tough to handle alone, it may be time to reach out for support. Lawyers and surface rights boards can guide landowners and companies through the process, making sure no one is left in the dirt.
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