LAND AND PROPERTY RIGHTS TRIBUNAL  
Citation:  
Bonterra Energy Corp v Rosells’ Enterprises Ltd, 2022 ABLPRT 1243  
Date:  
File No.  
2022-08-31  
RE2019.0051, RE2019.0052, RR2018.0016, and RR2018.0017  
Decision No. LPRT2022/SR1243  
Municipality: Brazeau County  
The Surface Rights Board (“SRB”) is continued under the name Land and Property Rights Tribunal  
(“Tribunal”), and any reference to Surface Rights Board or Board is a reference to the Tribunal.  
In the matter of a proceeding commenced under section 23 and 39 of the Surface Rights Act, RSA  
2000, c S-24 (the “Act”)  
And in the matter of land in the Province of Alberta within the:  
NE ¼-4-48-6 W5M as described in Certificate of Title No. 942 028 447 (the “Land”)  
Between:  
Bonterra Energy Corp. (“Bonterra”),  
Operator,  
- and -  
Rosells' Enterprises Ltd. (“Owner”),  
Bonterra Energy Corp.  
and  
Brazeau County  
Respondents.  
Before:  
Terri Mann, Chair  
Timothy S. Meagher  
Dennis Dey  
(the “Panel”)  
DECISION  
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APPEARANCES  
For the Operator:  
Matthew Schneider, Counsel, Borden Ladner Gervais LLP  
Darren Clarke, Telford Land & Valuation Inc.  
Annette Svederus, Peregrine Environmental Services  
Graham Martell, Bonterra Energy Corp., Operator Representative  
For the Owner:  
Matthew Rosell, Owner Representative  
Elizabeth Seutter-Rosell, Owner Representative  
BACKGROUND  
[1]  
This is a decision, pursuant to s. 23 of the Act, regarding the amount of compensation payable to  
the Owner for Right of Entry Order (“RoE”) Nos. 1597/2019 and 1598/2019, both dated October 4, 2019  
(the decision pertaining to the applications filed by the owner pursuant to s. 27 of the Act, heard in  
conjunction with these matters, in the Hearing of October 19th 21st, 2020, was dealt with in Decision No.  
LPRT2021/SR0902). For ease of reference and to avoid repetition, this Panel shall not reiterate the factual  
and background information found in paragraphs 1 to 15 of Decision No. LPRT2021/SR0902, but adopts  
same, in this decision.  
[2]  
Order 1597/2019 granted the Operator the right of entry in respect of 6.70 acres of the Land for  
operations related to the removal of minerals. Order 1598/2019 granted the Operator the right of entry in  
respect of 1.15 acres of the Land for the construction, operation, or removal of a pipeline. In other words,  
the Operator required the Right of Entry Orders for the purpose of drilling 3 wells (licenses were obtained  
for three wellsites, albeit only two were drilled) and constructing a pipeline due east to connect these wells  
to existing infrastructure.1 Matthew Rosell and Elizabeth Seutter-Rosell (the “Rosells”) testified under oath  
on behalf of RosellsEnterprises Ltd. (the “Owner”).  
[3]  
Darren Clarke of Telford Land & Valuation Inc. (“Clarke”), Annette Svederus, of Peregrine  
Environmental Services (“Svederus”) and Graham Martell of Bonterra Energy Corp. (“Martel”), testified  
under oath on behalf of the Operator.  
[4]  
It was agreed that for the padsite, Order No. 1597/2019, the Owner received $0.00 pursuant to  
section 19 (as it was their position that no land was taken therefore no entry fee was payable)2 and $3,600.00  
pursuant to section 20 of the Act (see copy of Cheque No. 56575 dated December 17, 2019), under cover  
of correspondence to the Owner dated December 18, 2019. It was also agreed that for the pipeline, Order  
No. 1598/2019, the Owner received $450.00 pursuant to section 19 (based on 0.90 acres * $500.00) and  
$2,026.00 pursuant to section 20 of the Act (see copy of correspondence from Operator to Owner dated  
December 18, 2019)3. Under s.25(6) of the Act, the payments received pursuant to s. 20 will be offset against  
the total compensation payable as determined in this Decision.  
[5]  
The parties agreed that the effective date(s) is the date that the Right of Entry Orders were granted,  
October 4, 2019.  
[6]  
Costs arising from Decision No. LPRT2021/SR0902 and this matter, are dealt with in this decision.  
1 A more fulsome explanation of the relationship of the Rights of Entry is contained in Decision No. 2019/0704.  
2
However, all parties requested and consented to proceeding with the determination of compensation pursuant to  
section 23 and the calculation of the entry fee, and the Panel proceeded on this basis, due to the unique circumstance  
of the matter.  
3 A breakdown was land value of $2,250 * 0.90 acres totaling $2,025.00 and $1.00 for initial consideration.  
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RELEVANT LEGISLATION:  
[7]  
The relevant sections of the Act are:  
Surface Rights Act, RSA 2000, c S-24, ss. 19, 20, 23, 25, 30 and 39  
Surface Rights Rules, rule 31  
EXHIBITS FILED:  
[8]  
The Exhibits are listed in Appendix A.  
RE2019.0052 ROE Order No. 1598/2019 dated October 4, 2019  
A Brief Description of the Pipeline  
[9]  
The Operator Bonterra required land for or incidental to the construction, operation or removal of  
a pipeline, in order to connect three new wells on its padsite situated on land granted under RoE 1597/2019,  
however, as noted, only two wells were drilled, rather than the three wells for which licenses were obtained,  
there is one well on the padsite area, which was taken under RoE E1579/83 (the “Original RoE”), which is  
abandoned. After being unable to acquire the consent of the Landowner, Bonterra applied for and was  
granted RoE. 1598/2019 on October 4, 2019 (the “pipeline ROE effective date”), for 1.15 acres of the Land,  
subject to the requirements of Pipeline License No. 55557, as provided for in Section 15 of the Act.  
ISSUES4  
1. Has a pattern of dealings for rights taken been established?  
(a) If so, are there any cogent reasons to depart from any pattern?  
2. What is the total first year compensation payable for the rights taken under Order  
1598/2019 and to whom?  
(a) What is the new land taken that was not previously held by an operator?  
(b) What compensation, if any, is payable for temporary work space (“TWS”)?  
(c) What compensation is payable for the land value?  
(d) What compensation is payable for First Year Adverse Effect or General  
Disturbance (“First Year Adverse Effect)?  
(e) What compensation, if any, is payable for damage?  
3. What entry fee is payable under section 19(2) of the Act?  
4. What compensation, if any, is payable on an annual basis (for loss of use and/or adverse  
effect)?  
5. What Initial Consideration, if any, is payable?  
6. What amount is payable for interest, if any?  
7. To whom is compensation payable?  
POSITIONS OF THE PARTIES  
The Operator  
[10]  
The Operator is of the position that an entry fee and compensation for the overlapping area in the  
rights of entry is not warranted, and argues the area which ought to attract compensation is 0.90 acres which  
is the new or “fresh land” that has been taken, as the remainder of the land covered by the RoE Order  
pertains to land which was superimposed on land that was originally taken, under the Original Order, Order  
4 What costs, and to whom are they payable, are dealt with at the conclusion of this decision.  
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No. E1579/83, LPRT File No. ER5357, dated July 27, 1983 (as well, the land taken is superimposed on  
Order 1597/2019) and that there is not incremental adverse effect.  
[11]  
The Operator argues the Entry Fee in the sum of $450.00 which has already been paid pursuant to  
s. 19(2)(b), is the correct sum, it is based on an area of 0.90 acres, the remainder of the RoE is on land  
which was already “paid for”.  
[12]  
The Operator denies any compensation is due for work space because there is no work space  
granted in the RoE Order.  
[13]  
As regards rights taken, the Operator’s position is that there is a pattern of dealings which may be  
used to arrive at the correct compensation (the “PoD”); alternatively, an empirical approach, or market  
value approach using direct sales, will permit correct valuation of compensation for rights taken; these  
calculations will conclude a compensation of $2,200.00 - $2,250.00 per acre using the PoD approach (or  
$2,250.00 per acre using the empirical approach). The negotiated agreement review analyzing the PoD  
approach, and the empirical calculations using direct comparables sales were detailed in the Market Value  
Appraisal Report and Compensation Report dated September 28, 2020 (the “Operator’s Pipeline Report”),  
presented by Darren Clarke of Telford Land & Valuations Inc. (“Clarke”), on behalf of the Operator.  
[14]  
Respecting the PoD approach, Clarke identified criteria to be considered in the determination of  
what constitutes “similar agreements”:  
The rights granted Right of Way Agreements  
The type of land Cultivated / Hay/ Pasture / Trees5  
The type of facilities and equipment Pipeline  
Proximity within 12 miles  
Effective date within the last 3 years  
Disposition acreage under 10 acres  
The Nature of the Parties  
The General Condition of the Industry  
[15]  
Clarke undertook a review which was carried out to identify companies with similar facilities  
within two townships of the subject disposition (the “Negotiated Agreement Review”). His research  
concluded four (4) companies: ARC Resources Ltd. (“ARC”), Bonterra Energy Corp. (“Bonterra”),  
Pembina Pipelines and ATCO Pipelines, which he then contacted. Information regarding new pipeline  
acquisitions for 2017 to 2019 was requested, near or on, lands currently being used for agricultural purposes.  
The result was 34 negotiated agreements from 22 owners and 4 companies that were active in the area and  
identified.  
[16]  
Clarke submitted that the consideration paid for the rights set out in the right-of-way agreements  
contained in the Operator’s Pipeline Report ranged from $2,200.00 per acre (14 agreements) to $2,250.00  
per acre (16 agreements) with the exception of 3 agreements between one company and one landowner for  
lands with highway frontage. Clarke concluded that, based on the data reviewed, compensation for the  
rights taken based on the PoD approach, should be $2,200.00 to $2,250.00 per acre.  
[17]  
Respecting the market value approach using direct sales (the “empirical approach”), Clarke  
completed a review to identify comparable land holdings sold between 2019 and 2020, or offered for sale  
5 However, counsel for the Operator advised that in reviewing the agreements, it was evident that the local market  
did not differentiate greatly between land use, i.e. treed land, hay and pasture land, were all compensated at similar  
rates.  
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in the area. Clarke identified 4 sales which were asserted to be comparable on the basis of the following  
criteria:  
Property Rights – transfer of “fee simple” interest  
Financing no atypical financing  
Conditions of Sale (no undue stimulus)  
Location sales within same general area  
Market Conditions  
Configuration  
Land Use Designation  
Size  
[18]  
In particular, Clarke asserted his identified four sales were similar in terms of location, access, soil  
characteristics and land use classification and submitted that, based on his review, the market value of the  
lands, using the empirical approach, should be $2,250.00 per acre.  
[19]  
As regards First Year Adverse Effect or General Disturbance, the Operator denied the adverse  
effects claimed by the Owner, which were requested on an annual basis (as was loss of use), and instead  
proposed a one-time payment of $1,000.00. The Operator, while denying that there was, indeed,  
incremental adverse effect, proposed additional compensation for crop loss in an area that was dug up  
during construction” (the “hockey stick”) calculated in the sum of using $350.00 per acre on the disturbed  
portion of the land of 0.3 acres or $105.00 for the 2020 crop year, and half of that or $52.50 for the 2021  
crop year after which the disturbed soil area should be fully productive, for a total of $157.50.  
[20]  
As regards damage, the Operator denied that compensation is due to the Owner for the “winter kill”  
as requested, as this testimonial evidence submitted on this issue was not corroborated. The Operator  
further submitted that any item associated with the construction of the project, should be considered  
temporary in nature and should be addressed after clean-up when they can be accurately assessed and asks  
for a ruling that the award as contemplated be inclusive of all damages the Owner may have sustained and  
may claim for, in the future, due to the pipeline installation. The Operator noted the Owner is at liberty to  
pursue a damage claim pursuant to section 30 of the Act.  
[21]  
The Operator further denies that annual compensation should be paid as it is not typical Tribunal  
practice to award compensation on an annual basis in a section 23 matter, there is nothing unique or atypical  
on these sites that would merit annual compensation and the Owner failed to demonstrate this is not the  
case.  
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[22]  
The Operator’s position on compensation for RoE Order No. 1598/2019 is summarized as follows:  
Type of Compensation  
Amount  
Total Amount  
$450.00  
Entry Fee  
$500 * 0.90 acres  
$2,200.00 - $2,250.00  
Land Value  
$2,200.00 - $2,250.00  
$2,200.00 - $2,250.00 is based  
on PoD and $2,250.00 is based  
on empirical approach  
First Year Adverse Effect/First $157.50 + $1,000.00  
$1,157.50  
Year General Disturbance  
Total  
$3,807.50 - $3,857.50  
Owner’s Position  
[23]  
The Owner denies a PoD exists and relies on pipeline agreements which it asserts are comparable,  
and support its claim for compensation. As the Panel understands, the Owner testified that in 2018, a  
Bonterra pipeline was installed on the NW ¼-16-48, for a 2.09 acre pipeline with 0.20 acres for temporary  
work space, and the landowners received compensation of $12,181.00, they argue that “…compared to this  
agreement, in terms of a global payment amount, our requested compensation for this pipeline is fair and  
reasonable.” The Owner further relies on two additional pipeline agreements it asserts are highly  
comparable, being a 2013 agreement between itself and ARC on SE ¼-20-48 wherein compensation of  
$10,468.00 was paid on an area of 2.61 acres and 0.16 acres of temporary work space and a 3rd agreement  
between the Owner and ARC also in 2014 also on the SE ¼-20-48 in 2014 wherein compensation of  
$9,856.00 was paid on an area of 1.80 acres and 1.48 acres of temporary work space.  
[24]  
In addition to the above, the Owner relies on 3 pipeline agreements “…between a landowner in the  
area and another operator, Sinopec Daylight Energy (“Sinopec”). These agreements also show that the  
request our (sic) for compensation is not unreasonable.”  
[25]  
The Owner submits that, as regards affected area, the survey indicates 2.09 acres was required for  
the pipeline, and 0.20 acres was required for temporary workspace and that is the acreage that should attract  
compensation.  
[26]  
The Owner submits that the Entry Fee paid by the Operator is insufficient, and claims $750.00 for  
this sum based on $500.00 * 1.15 acres6.  
[27]  
The Owner does not request general disturbance or first year adverse effect per se, or a “one time”  
damage claim, but requests annual compensation for loss of use and adverse effect, which it asserts is  
reasonable, in the circumstance, extending for a period of 3 years, particularized below. On the issue of  
adverse effect, the Owner submits that the compensation claimed is warranted as there are multiple and  
varied adverse effect factors which militate towards a higher compensation for adverse effect including  
severance and drainage issues, trespass, weeds, inadequate maintenance of access roads, open gates and the  
risk of stolen bales, increased traffic, on-site activity, noise, and general inconvenience. As well, dealing  
with open gates and the risk of stolen bales, increased traffic and on-site activity and noise caused  
6 The Panel assumes a calculation error, as 500 * 1.15 totals $575.00.  
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inconvenience and required time. These factors are asserted to negatively impact production processes and  
revenues over a period of time and have necessitated the moving of beehives.  
[28]  
Finally, the Owner requests that the “Zages addendums” for pipelines are put in place as  
conditions.  
[29]  
The Owner’s position on RoE Order No. 1598/2019 is summarized as follows:  
Type of Compensation  
Amount  
Total Amount  
$500.00  
Initial Consideration  
Entry Fee  
$500.00  
$500.00 * 1.15 acres  
$2,500.00 * 1.15 acres  
$3,000.00 * 0.04 acres  
$750.007  
Land Value (Rights Taken)  
Workspace (Temporary)  
$2,875.00  
$120.00  
Loss of Use (Annual Payments) $485.00 per acre * 1.15 acres * 3 $1,673.25  
years  
Adverse Effect/Damage (Annual $1,000.00 per year * 3 years  
Payments)  
$3,000.00  
Total  
$8,918.25  
DECISION:  
1. A PoD has been established of $2,200.00 to $2,250.00 per acre for land value.  
(a) there is not a cogent reason to depart from the PoD.  
2. Subject to the deduction of the amount paid under s. 20 of the Act, the compensation  
is as follows:  
(a) The new land taken that was not previously held by the Operator is 0.90 acres.  
(b) Compensation is not payable for temporary work space (“TWS”).  
(c) Compensation is payable for land value based on $2,250.00 per acre * 0.90  
acres totalling $2,025.00.  
(d) Compensation is payable for First Year Adverse Effect or General Disturbance  
in the sum of $1,000.00 + 157.50 totalling $1,157.50.  
(e) Compensation is not payable for damages.  
3. An entry fee of $575.00 ($500 per acre * 1.15 acres) is payable pursuant to s. 19 of the  
Act.  
4. No compensation is paid on an annual basis (loss of use or adverse effect).  
5. No Initial Consideration is owing.  
6. The Panel awards interest payable at the Bank of Canada rate in effect on the date of the RoE  
Order, on any difference, between the amounts awarded by the Panel and the amounts the  
operator sent to comply with the prepayment of compensation required in accordance with s.  
20(1) of the Act, until paid in full.  
7. Compensation is payable to Rosells’ Enterprises Ltd. from Bonterra Energy Corp.  
7 This would appear to be a typo, 500 * 1.15 totals $575.00, however $750 is claimed for the entry fee in the  
Owner’s summary of position contained at HDP 204).  
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REASONS FOR DECISION  
1. What is the appropriate rate of annual compensation?  
a. Does the evidence establish a pattern of dealings for Rights Taken?  
[30]  
It is the Tribunal’s practice to base compensation on a pattern of dealings (“PoD”) when one is  
established on the evidence unless there are cogent reasons for doing otherwise. This approach is based on  
the underlying premise that the marketplace is usually the best determinant of fair and reasonable rates of  
compensation; it is consistent with the Court’s decision in Livingston v. Siebens Oil & Gas Ltd (1978), 8  
A.R. 439 (C.A.) and now used routinely by the Court and Tribunal. Likewise, Imperial Oil Resources Ltd.  
v. 826167 Alberta Inc. 2007 ABCA 131 (“Imperial Oil”) at para 21, articulated the principle for finding a  
pattern of dealings, contemplating “comparable” patterns of dealings, in terms of the rights granted, the  
type of land and proximity, date, acreage, and the nature of the parties. This court decision is binding upon  
the Tribunal.  
[31]  
The Panel examined the agreements delineated in Clarke’s Negotiated Agreement Review,  
submitted for the purpose of ascertaining land value. As noted above, the Negotiated Agreement Review  
dealt with 34 negotiated agreements from 22 owners and 4 operators. The compensation paid for the right  
of way on these agreements ranged from $2,200.00 (14 agreements) to $2,250 (16 agreements) except for  
3 agreements for lands with highway frontage. The Panel finds that the three highway-frontage agreements  
at $3,000.00 are outliers. It was noted that there was no discernible difference in compensation paid for  
hay-land versus pasture, which, in the experience of the Panel, is not atypical in local rural communities.  
[32]  
The comparables were obtained within 2 townships (12 miles) of the subject parcel, the Panel found  
this distance to be reasonable as lands within this distance are more likely to be similar in  
climate/topography/soil than further in distance. As well, the agreements were in respect of pipeline  
acquisitions (i.e. similar facilities) for 2017 to 2019 (similar in effective date of review). Size was similar  
(full acreage) as well as type of land, (cultivated/hay/pasture). The Panel finds these agreements similar to  
the taking in terms of location, on-site facilities, effective date of review and acreage.  
[33]  
The Panel finds that there is a sufficient number and variety of owners (22) and operators (4) and  
agreements overall, to determine a pattern. There was no evidence rebutting a pattern, such as testimonial  
evidence that a great number of pipeline agreements were prevalent for pipeline facilities in the immediate  
area, in comparison to that provided. In summary, the Panel finds there is a PoD of $2,200.00 to $2,250.00.  
1(a) Is There A Cogent Reason to Depart from The Pattern for land value?  
[34]  
As noted above, the Owner relies on agreements which it asserts are comparable to the subject, and  
which would displace the pattern of dealing approach, and are superior to the empirical evidence submitted  
by the Operator.  
[35]  
The Owner relies on agreements it entered into with Bonterra in 2018 for the NW ¼-16-48 and two  
agreements it entered into with ARC both in respect of SE ¼-20-48, in 2013 and 2014 respectively. It was  
acknowledged that “…the documents associated with (these) pipelines is missing information and thus, will  
be treated as a global payment with no precise breakdown. However, given the information that is known  
(total acreage, compensation and year of agreement), the requested compensation for this pipeline in  
question is not unreasonable.Additionally, the Owner relies on three pipeline agreements between a  
landowner in the area, and Sinopec.  
[36]  
As regards the Bonterra agreement in 2018, the Panel notes that the Owner provided a copy of  
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correspondence between Wayne Rosell and Bonterra dated November 16, 2017, which indicates a proposed  
pipeline project from 16-17 to 14-16, with handwritten notes at the bottom indicating “total $12,181.00”  
and another handwritten note “$53192.00”8. The Panel also notes a survey which indicates area required  
for a pipeline for the NW ¼-16-48 of R/W of 2.09 acres and workspace of 0.20 acres. However, the Panel  
was unable to ascertain further documentation and, again, in the absence of dates or signatures, or other  
details evidencing an agreement, or testimonial evidence from a witness who was present or participated in  
negotiation for this compensation and could testify as to a breakdown, the Panel is unable to use this  
documentation as instructive in setting compensation for the subject pipeline9.  
[37]  
As regards the agreements with ARC, the Panel notes a document titled “Contact Detail Report”  
on which “ARC” is handwritten at the top, which indicates compensation details for a pipeline with Rosells’  
Enterprises Ltd., for a pipeline, with 1.80 acres of acreage, and temporary work space of 1.48 acres. It is  
further noted that comments at the bottom state, “…ARC to confirm if this can be done before ROW is  
agreed to”, indicate this form was entered into before any agreement was entered into. In the absence of  
dates or signatures, or other details evidencing an agreement, the Panel finds there is insufficient  
corroboration of the hearsay testimony concerning this agreement; however, the Panel notes the  
compensation indicated for Rights Taken noted in the Contact Detail Report, in the sum of $2,200.00,  
supports the Operator’s position (see also a Right of Way agreement, which the Operator submits correlates  
to this matter, at HDP 1140).  
[38]  
The Panel notes that copy of Compensation Details form on which “ARC” is also handwritten at  
the top, which appears to indicate proposed compensation for a pipeline R/W on unidentified land, for total  
compensation of $10,468.00, comprised of a breakdown between Entry Fee, Land Value, Temporary  
Workspace and Damages (including monies for time spent). However, it is in respect of 2.61 acres and  
0.16 acres of temporary work space which does not align with other documentation provided in the bundle  
of documentation. In the absence of dates10 or signatures, or other details evidencing an agreement, the  
Panel finds there is insufficient corroboration of the hearsay testimony concerning this agreement; however,  
the Panel notes the compensation proposed to be paid for land value, in the sum of $2,200.00, supports the  
Operator’s position.  
[39]  
The Owner provided a copy of a Pipeline Acquisition Report between Sinopec and Brandon Martin  
(“Martin”) referencing a Right of Way Agreement dated June 20, 2012 for the SE ¼-4-50. As the Panel  
understands, the Report represented documentation for compensation paid to Martin in respect of pasture  
land used for a pipeline11. An attached Right of Way Agreement was provided, which confirmed  
compensation of $2,250.00 per acre for land value. The Panel notes that the agreement is dated, however,  
land value or Rights Taken was compensated at $2,250.00 per acre which supports the Operator’s proposed  
Rights Taken compensation.12  
8 It is assumed that there is a typo in this sum.  
9 The Operator noted, in particular, that rights granted were not identified in the Rosell Pipeline 1 agreements  
located in the SE 20-48, and in the Rosell-Bonterra Pipeline agreements in the NW 16-48 at HDP 1129.  
10 HDP 233 refers to August 1, 2013, but it is unclear if this is the relevant date.  
11 In rebuttal, Clarke submitted that this facility was a padsite.  
12 The Panel notes the distinction between pasture use and agricultural use; however, evidence was not led, on the  
balance of probabilities, to persuade the Panel that a higher compensation for Rights Taken is paid, in the subject  
area, for agricultural use and in any event, the Panel bases compensation on the PoD identified.  
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[40]  
The Owner also provided documentation in the form of correspondence dated July 25, 2013  
between Martin and Sinopec referencing a 2013 Right of Way Agreement. The correspondence referenced  
a global sum of $8,755.00, but there is no breakdown for the land value paid of $5,425.00. However, an  
attached Right of Way Agreement indicates compensation of $2,250.00 paid for Rights Taken. This  
agreement is dated, however and in any event, it supports the Operator’s proposed compensation for Rights  
Taken.  
[41]  
The Owner also provided documentation in the form of correspondence between Martin and  
Sinopec dated August 15, 2013 also referencing a June 2013 Right of Way Agreement which referenced a  
global sum of $6,505.00, but there is no breakdown for the land value paid of $4,080.00. There is no further  
documentation respecting this agreement, and therefore the Panel finds it is unreliable and does not support  
the Owner’s claim.  
[42]  
Additional right of way agreements not referenced by the Owner in its submissions, as the Panel  
understands, appear to be referenced at HDP 218, between Brandon Martin and Sinopec dated May 1, 2013,  
as well, a right of way agreement dated April 29, 2013 between Brandon Martin and Sinopec in  
correspondence of July 25, 2013 is referenced at HDP 223 for the W½ of SE 4-50-6 W5M, with global  
compensation. It is noted that in rebuttal, Clarke noted that this site was a pad site. In any event, the Panel  
was unable to ascertain the particulars of the site on the basis of the documentation provided, albeit it was  
able to ascertain that this agreement was six years prior to the effective date of review.  
[43]  
In rebuttal, Clarke argued that the documents provided by the Owner were not consistent with the  
factors required to form a PoD as the agreements that were provided range between 5-7 years older than  
the effective date of the subject RoE other than the 14-48-6-W5M Rosell/Bonterra Pipeline document;  
however, no agreement was provided in respect of this item.  
[44]  
The Panel finds that, of the agreements provided, it appears that compensation for land value was  
provided at $2250.00 per acre or at $2200.00 per acre, supporting the Operator’s position. Given this, and  
the lack of completeness of the Owner’s documentation, the Panel finds the Owner’s comparable  
agreements do not support its claim for land value.  
[45]  
The Operator, in addition to its comparable evidence, provided empirical evidence. The Panel  
examined the Operator’s empirical evidence to determine if it provided a cogent reason to depart from the  
PoD. In particular, in the Operator’s Pipeline Report, Clarke provided a market value of the land using the  
direct sales comparison approach, in respect to comparable land holdings in Brazeau County, sold between  
2019 2020 or offered for sale during that time period and with an agricultural land use designation and  
CLI soil class 4. Additionally, size and configuration were similar, and Clarke submitted that there was no  
undue financing or market conditions to support adjustment for these items (this was not contested). The  
Operator selected 4 reference sales with a mean of $2,008.00 and a median of $2,029.00 per acre. When  
adjusted, the sale price per acre ranged from $1,734.00 to $2,069.00. Clarke argued reference 3 transferred  
close to the effective date, and was considered to be the best indicator of value for the subject property.  
Clarke submitted that the estimated market value of the vacant land of the subject property as of the effective  
date, October 4, 2019, is $2,250.00.  
[46]  
The Panel found that there was no reason to disturb the PoD based on the empirical evidence  
submitted by the Operator as the empirical evidence supported the PoD evidence in that the value of the  
land was determined to be the same, or nearly the same, as that determined by the PoD approach.  
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2. What is the total first year compensation payable for the rights taken under Order 1598/2019?  
(a) New Land Taken  
[47]  
The Panel notes the Owner submitted that the affected acreage was 2.09 acres13; however, Right of  
Entry Order 2019/1958 is in respect of 1.15 acres, the Panel was not given evidence that the subject RoE is  
in error, and finds the area taken under RoE is as described, or 1.15 acres.  
[48]  
In reviewing Right of Entry Order 1598/2019 and survey sketches, the Panel finds it is  
superimposed on RoE 1597/2019, which is superimposed on RoE E1579/83 (the “Original RoE”). The  
Panel finds the subject RoE involves fresh or new land taken of 0.90 acres, because the remaining portion  
(0.25 acres) is overlapping land taken by both RoE 1597/2019, and the Original RoE. Therefore, as stated  
in Cenovus Energy Inc v Holmes, 2012 64776 (AB SRB) (“Cenovus”), “…the issue which arises is  
the determination of compensation for the area “granted twice”.  
[49]  
The Operator argues that both compensation and entry fee ought to be payable only for 0.90 acres  
and not the area of the area granted in the RoE of 1.15 acres, because 0.90 acres is the “fresh land taken”  
or portion of the land of the ROE which is not overlapping, or superimposed, on the Original RoE. Section  
16(1)(a) of the Act states “a right of entry order vests in the operator… unless otherwise provided in the  
order, the exclusive right, title and interest in the surface of the land in respect of which the order is  
granted…” and it effectively vests title in the land to the Operator in both rights of entry, thus the interest  
of the overlapping lands have already been exhausted. Essentially, the Operator argues it is not taking any  
additional interest in the land over and above what has already been taken, other than the 0.90 acres  
specified and compensation for Rights Taken or land value has already been paid.  
[50]  
[51]  
The Owner did not address this argument.  
The Panel notes that on March 27, 2019, Order No. 0481/2019 amended prior Orders Nos.  
E1579/83 (the Original RoE) and E1581/81, such that the style of cause was amended so that the operator  
was amended to name Bonterra Energy Corp., Order No. 0482/2019 amended Order No. E1579/83, as  
amended, to amend the style of cause by removing the former owner Charles Samuel Rosell and substituting  
Rosells’ Enterprises Ltd., and a Well Summary Report dated August 18, 2022 confirms Bonterra Energy  
Corp. is the holder of well license 0102339, the license correlating to the abandoned wellsite granted in  
respect of the Original RoE.  
[52]  
In Cenovus Energy Inc. v. Holmes et al 2012 64776 (AB SRB) (“Cenovus”), the operator  
took the position that extra compensation for overlapping rights of entry was not warranted, as it viewed  
the combined footprints of the sites as essentially one site, and the overlapping reduced impacts. Further,  
there was not ongoing additional adverse effect because the wells were “…monitored by the same operator  
visiting each during the same single trip …resulting in adverse effect no different than that resulting from  
servicing only one well”. The Panel stated, that “the issue that arises is the determination of whether the  
area granted twice should be compensated for twice.” The Panel in Cenovus noted that section 16 of the  
Act indicates that a right of entry order vests “…right, title and interest in the surface of the land in respect  
of which the order is granted… other than the right to a certificate of title issued pursuant to the Land Titles  
Act” and found that, for this reason, land value is exhausted when the first right of entry is acquired. An  
operator granted a second right of entry cannot take any land value from the landowner that has not already  
been taken. The Panel found that this is consistent with the finding in ConocoPhillips Canada Resources  
Corp. and Whitelock, LPRT Decision No. 2009/0258 which quoted, as regards land value, “It is the opinion  
of the Board that the Landowners had already surrendered this particular interest in the land at the time of  
13 The Panel noted a reference to 2.09 acres on the NW 16-48-6-W5M; however, this is not the subject pipeline.  
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the initial taking, and compensation would only be warranted if the Landowners could demonstrate an effect  
on the reversionary interest of the land”. Further, in Whitelock, the Panel noted that as regards loss of use,  
“the Board is not persuaded that an increase in loss of use would occur… the Landowners did not have the  
use of the 3.54 acres in question. If they did not have it, they cannot lose it, and no additional compensation  
can be due” (writer’s emphasis). The Tribunal in Whitelock concluded only incremental adverse effect,  
nuisance and inconvenience are compensable. This conclusion was confirmed upon appeal to the Court of  
Queen’s Bench by Mr. Justice E.P. MacCallum who, as regards adverse effect, noted the monitoring of the  
two sites was done by the same operator at the same time which results in no more impact than would be  
experienced if only one site existed”.  
[53]  
More recently, in Bonavista Energy Corporation v Alberta (Environment and Parks), 2020 ABSRB  
419, the Panel opined on the consequence of an overlapping RoE. The Panel found its challenge was to  
ensure that only incremental adverse effect, nuisance, inconvenience and noise were compensable and  
found that the RoE did not cause incremental loss, and compensation was not awarded for this item.  
Likewise, the Panel found that loss of use would only be warranted if it could be demonstrated the RoE  
resulted in an incremental loss of use beyond any loss currently arising (no compensation was payable for  
loss of use, although compensation for adverse effect was paid, based on a finding that there was  
incremental nuisance and inconvenience).  
(b) What compensation, if any, is payable for workspace?  
[54]  
The Owner seeks $3,000.00 for temporary workspace (“TWS”) the Panel did not receive evidence  
in regards to this claim. The Operator asserts that the Owner is not entitled to compensation for TWS,  
because the RoE does not delineate land for TWS; as a result, the Panel has no jurisdiction to award  
compensation for this item.  
[55]  
The Panel notes that the ROE Order No. 1598/2019 provides for 1.15 acres of land, delineated in  
the attached survey (outlined in green, see HDP 428). TWS is not included and therefore the Panel declines  
this claim.  
(c) What compensation is payable for land value?  
[56]  
Certificate of Title 942 028 446 indicates the subject land was transferred to the Owner subsequent  
to the granting of the Original RoE. However, as noted, the Original RoE has been amended to name the  
Owner, it has also been amended to name the Operator. AER documentation confirms that Bonterra is the  
operator who holds the license to the wellsite on the padsite taken in the Original RoE (as well as RoE  
1597/2019). The Panel further notes that RoE Order No. 1598/2019 was granted to the Operator for or  
incidental to the construction, operation or removal of a pipeline , whereas Order No. E1579/83 was granted  
to for operations for or incidental to the drilling for and production of petroleum and natural gas, RoE  
1597/2019 is for the purpose, as noted, of drilling three wells, the construction of the pipeline in RoE  
1598/2019 was to connect the wells to existing infrastructure. The Panel finds, in consideration of the  
foregoing, the purposes for which the Rights of Entry were taken, are related. Evidence was not led on  
compensation paid for Rights Taken but the Panel finds it more likely than not, based on the Act, that  
compensation was paid for Rights Taken on the Original RoE and notes that Order No. 0482/2019 specifies  
that Order No. E1581/83, as amended, “…confirmed the agreed amount of compensation payable”. The  
Panel therefore finds, in consideration of section 16 of the Act, and the principles enunciated in the above  
caselaw and Tribunal decisions, and the submissions of the Operator which were not rebutted by the Owner,  
that the interest in the overlapping area of the Site has been exhausted such that compensation for land value  
on RoE 1598/2019 is limited to the fresh or new land taken, of 0.90 acres.  
[57]  
The Panel has previously determined there is a PoD from $2,200.00 (14 agreements) to $2,250.00  
(16 agreements), and (b) the affected area is 0.90 acres. The Panel determines compensation for land granted  
Page 12  
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to the operator as $2,250.00, because the Panel relies on the compensation demonstrated at the upper end  
of the range. This is because the evidence of the Rosells, which is accepted, is that the land has good quality  
soil which yields good to excellent crop. As a result, the Panel calculates land value at $2,250.00 *0.90  
acres totaling $2,025.00.  
(d) What compensation is payable for First Year Adverse Effect or General Disturbance?  
[58]  
As regards First Year Adverse Effect or First Year General Disturbance, the Panel found that the  
pipeline was approved in 2019 (the original RoE was granted in 2013) and the Rosells gave evidence as to  
the general disturbance and nuisance arising in the first year of the construction of the pipeline on both  
cultivation and cropping of the land. It is noted that the wellsite contained on the padsite granted in the  
Original RoE was abandoned, the Panel finds on the balance of probabilities that little operator activity  
would be involved, as a result. Based on the evidence of the witnesses for the Owner, the Panel finds that  
the construction of the pipeline did cause incremental adverse effect, and therefore the overlapping right(s)  
of entry does not preclude compensation for First Year Adverse Effect or General Disturbance.  
[59]  
[60]  
The Owner did not make a claim for First Year Adverse Effect. 14  
The Operator proposed $1,000.00 for First Year Adverse Effect which was stated to be based on  
Clark’s opinion (this item was not however contained in Clarke’s Negotiated Agreement Report).  
[61] Martel, on behalf of the Operator, acknowledged in his testimony that in a “hockey stick” area on  
the RoW, there was loss of crop due to soil disturbance during the pipeline installation. It was not disputed  
that the portion that was disturbed was 0.3 acres. Clarke quantified crop loss for the hockey stick only, at  
$350.00 * 0.3 acres for 1st year crop loss on the 0.3 acre portion dug up, and ½ of that the following season  
totaling $157.50. The Panel finds that the aerial photos of 2020 crop do not permit any determination of  
reduced yield; the photographs do however indicate that the crop on the pipeline route was not harvested  
separately, which may have assisted in quantification of any reduced yield. More recent aerial photographs  
depict the area appears cultivated “to the edge” of the hockey stick.  
[62]  
In the absence of contradictory evidence and submission, the Panel determines First Year Adverse  
Effect or General Disturbance at $1,000.00 + $157.50 totaling $1,157.50.  
(e)  
What compensation, if any, is payable for damage?  
[63]  
The Owner argues that there was adverse effect, requested on an annual basis, or damage as a result  
of the “bumpy” soil, and it will take time for it to re-seed as well as excessive moisture on the lands due to  
operator activities which affected crop operations. As the Panel understands, this refers to off-site damage.  
As well, the Rosells testified that the Operator cleared the entire ROW during the coolest portion of last  
winter, and there was visual evidence of significant winter kill, which was acknowledged to be “difficult to  
quantify”.  
[64]  
The Panel denies this claim because there was not corroborative evidence of any loss to the Owner,  
concerning damage of crop loss, such as financial evidence or documentation regarding reduced quantity  
of yield; further, there was evidence of unusual moisture conditions in the years affected such that the  
Owner’s “winter kill” claim has not been established, on the balance of probabilities or the bumpy  
soil/excessive moisture issue (see also Decision No. LPRT2021/SR0902 in respect to the Panel’s findings  
regarding additional adverse effect issues claimed including dealing with open gates, the risk of stolen  
bales, increased traffic and on-site activity, noise, the moving of bee hives). The Panel further notes that,  
should damage manifest, the Owner may seek compensation under the Act, for damage caused by or arising  
14 However, the Owner did claim for Adverse Effect on an annual basis of $1,000.00 for three years.  
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out of the operations of the operator to any land other than the area granted to the operator, or for any other  
items pursuant to the Act.  
[65]  
The Operator requested the Panel direct that monies awarded are inclusive of any future damage  
claim, the Panel denies the request for a ruling that the monies awarded are inclusive of any future damage  
claim on the basis that it declines to fetter another Panel’s directions on an issue that may arise in the future.  
[66]  
Finally, the Panel notes that the Owner had requested that the operator sign a Zages addendum;  
however, the hearing was held to determine the compensation for the RoE Order. The factors that the  
Tribunal may consider are set out in s. 25 of the Act. The Owner did not provide authority or justification  
for the Panel to depart from its ordinary practice of refraining, in a section 23 hearing, from directing the  
signature of a Zages addendum, or provide evidence for its rationale, as a result, the Panel declines this  
request.  
3. What entry fee is payable under section 19(2) of the Act?  
[67]  
Section 19 of the Act specifies that an operator who proposes to exercise a right of entry on land,  
other than land owned by the Crown shall pay to the respondent or to the Tribunal under section 22 an entry  
fee as provided for. Section 22(1) of the Act stipulates that an operator who proposes to exercise a right of  
entry on land, other than land owned by the Crown, shall pay an entry fee which is an amount equal to the  
lesser of $5,000.00, or $500.00 per acre granted to the operator, or a proportionate amount, not to be less  
than $250.00, where the land granted to the operator is less than one acre.  
[68]  
Bonterra provided documentation evidencing monies paid to the Owner for the entry fee dated  
December 18, 2019, of $450.00 calculated as $500 paid on 0.90 acres.  
[69]  
The Owner does not agree with the amount offered by the Operator and rejects the compensation,  
seeking $750.00 for the entry fee.  
[70]  
In Cenovus, as noted above, the Panel found that as both rights of entry were obtained by the same  
operator, there was overlap and only incremental adverse effect ought to be compensable. However, based  
on the wording of section 19(2) of the Act, the Panel in Cenovus found the calculation of the entry fee was  
to be calculated on the full acreage of the taking.  
[71]  
The Panel agrees with the interpretation of section 19 as per Cenovus and finds the area to be  
considered in calculating the entry fee is the full acreage of the taking or 1.15 acres, therefore the entry fee  
is calculated based on $500 per acre * 1.15 acres totaling $575.00.  
4. What compensation, if any, is payable on an annual basis?  
[72]  
The Panel notes that the generally accepted practice of this Tribunal is to deny annual payments to  
landowners respecting pipeline structures unless there are above ground structures or evidence of ongoing  
impacts arising from the pipeline. There are no above ground structures for this facility, albeit the Panel is  
apprised there is signage on the fence line, but this is not applicable to a determination on this finding.  
[73]  
In Alberta Products Pipe Line Ltd. v Hollands, 2016 ABSRB 1007, the Landowners requested  
adverse effect, as an annual compensation payment. The Panel opined at para. 44, In order for adverse  
effect to be compensated as an annual rental payment there must be evidence that the adverse effect is  
ongoing. Pipelines are distinguished from well sites and power transmission lines because there is typically  
no continuing adverse effect on the rest of the land once the crops or vegetation have recovered. Well sites  
and power transmission lines have continuing adverse effect due to surface facilities and structures.” The  
Panel referenced Corridor Pipeline Limited v Zubick, 2001 37956 (AB SRB) whence the Panel  
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stated, “The Board’s practice in awarding annual compensation has, in accordance with the “rate of  
compensation” definition, been limited to circumstances of above ground facilities, such as facilities  
pursuant to a surface lease or a power transmission line.” [emphasis added] While the panel in Cenovus  
Energy Inc v Holmes, 2012 64776 (ABSRB) states, “Compensation determined under a right of  
entry for a pipeline is typically determined by considering, in addition to the statutory entry fee, the value  
of the land and general disturbance which are in turn often lumped together as a single sum. It is not the  
traditional practice to determine an annual component of compensation of a pipeline.” [emphasis added].  
See, also, Enbridge Pipelines (Athabasca) Inc. v Karpetz, 2010, ABSRB ABQB 108 (“Karpetz”) wherein  
it was stated that specific, tangible and non-speculative evidence of on-going impacts arising from pipeline  
construction are required to support a claim for annual compensation and posits that in this matter only  
temporary impacts have been identified.  
[74]  
The Owner, through its witnesses, were queried as to their response to the body of case law which  
indicated that pipelines are not awarded compensation annually, unless above-ground structures are present  
and/or exceptional circumstance is present to establish ongoing adverse effect. No argument or submissions  
were made in this respect. The Panel adopts the reasoning in Karpetz and finds annual compensation is not  
merited. Finally, it is noted that the pipeline agreements upon which the Owner relies do not contain annual  
payments for loss of use and adverse effect, nor do the agreements relied upon by the Operator, in the  
Negotiated Agreement Review, which the Panel has found to constitute a PoD. The claims for annual  
payments for loss of use and adverse effect are therefore denied.  
5. What Initial Consideration, if any, is payable?  
[75]  
The Owner seeks $500.00 for Initial Consideration. The Operator did not address this request. It  
is the typical practice of this Tribunal to not award Initial Consideration in like matters, the Panel was not  
apprised as to the authority upon which it could award this compensation, or the basis upon which it ought  
to exercise discretion to depart from ordinary practice and grant this component of compensation. In the  
absence of same, the Panel denies this claim.  
6. What amount is payable for interest, if any?  
[76]  
Interest is payable on any unpaid compensation in accordance with s. 25(9) of the Act on and from  
the date of the RoE, until paid in full at the Bank of Canada rate in effect on the date of the RoE.  
7. To Whom is compensation payable?  
[77]  
[78]  
Section 23 of the Act requires that the Panel determine to whom the compensation is payable.  
The registered landowner is Rosells’ Enterprises Ltd. The Panel was not provided with evidence  
from the Owner requesting compensation to any other party, and the Owner requested compensation be  
remitted to it, the Panel directs compensation is payable by Bonterra Energy Corp. to Rosells’ Enterprises  
Ltd.  
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RE2019.0051 ROE No. 1597/2019 dated October 4, 2019  
A Brief Description of the Padsite  
[79]  
Pursuant to Right of Entry Order No. 1597/2019 issued on October 4, 2019, Bonterra was provided  
6.70 acres on NE 4-48-6-W5M (L.S. 16) for the drilling of three additional wells subject to the requirements  
of Alberta Energy Regulator (AER) Well Licenses Nos. 0494557, 0494558 and 0494559 (the “Padsite”).  
Two wells were drilled on this site in December, 2019 (license nos. 049557 and 0459588) (the 3rd wellsite,  
for which a license was obtained, was never drilled).  
[80]  
The Padsite already hosts a well, subject to Well License No. 102339, pursuant to Right of Entry  
Order E1579/83 dated July 27, 1983, which granted 6.67 acres. This well was abandoned and capped,  
below the surface, in 2019. No reclamation certificate has been issued.  
ISSUES  
1. Does the evidence establish a pattern of dealings (“POD”) with respect to compensation?  
(a) If so, are there any cogent reasons to depart from any pattern?  
2. What is the total first year compensation payable for rights taken under Order No.  
1597/2019?  
(a) What is the new land taken that was not previously held by an operator?  
(b) What compensation is payable for land value?  
(c) What compensation is payable for annual Loss of Use?  
(d) What compensation is payable for annual General Disturbance or Adverse  
Effect?  
(i) how many additional wellheads are compensable and what  
compensation is determined for additional wellhead(s)?  
3. What is the entry fee payable?  
4. What amount is payable for interest?  
5. To whom is compensation payable?  
POSITIONS OF THE PARTIES:  
The Operator  
[81]  
Consistent with the approach for Order 1598/2019, the Operator is of the position that an entry fee  
pursuant to section 19 and compensation for the overlapping area in the rights of entry is not warranted.  
Further, the Operator submits Order 1597/2019 is superimposed on the Original RoE, Right of Entry Order  
E1579/83, by a difference of only 0.03 acres, a technical issue likely resulting from surveying computer  
calculations in 2019 versus hand calculations in 1983. The differential is inconsequential or de minimis,  
and therefore no compensation ought to be payable on the additional land (i.e. no entry fee and no  
compensation for adverse effect, in congruence with established Tribunal precedent).  
[82]  
Alternatively, the Operator’s position is that the area effectively taken under the RoE 1597/2019 is  
the “fresh land” or new area taken of 0.03 acres, and both the entry fee, and compensation under the Act  
should be based on this acreage.  
[83]  
The Operator submits there is a pattern of dealings (the “Negotiated Agreement Review”) which  
may be used to arrive at the compensation for the Rights Taken, Loss of Use and General Disturbance. In  
the alternative, an empirical approach, will permit correct valuation of compensation for these items.  
[84]  
On behalf of the Operator, Clarke of Telford Land & Valuations Inc. presented the Negotiated  
Agreement Review for this Site, which identified and assessed negotiated agreements between land owners  
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Decision No. LPRT2022/SR1243  
and energy industry operators for similar projects and facilities. Clarke identified criteria to be considered  
in determining what constitutes “similar agreements” in the area:  
The rights granted Right of Way Agreements  
The type of land Cultivated / Hay/ Pasture / Trees  
The type of facilities and equipment Pipeline  
Proximity within 12 miles  
Effective date within the last 3 years  
Disposition acreage under 10 acres  
The Nature of the Parties  
The General Condition of the Industry  
[85]  
Clark’s review identified nine (9) companies with similar facilities within two townships of the  
subject disposition. These firms were contacted regarding rent reviews or new acquisitions for 2015-2019.  
Nine (9) negotiated agreements were identified involving 8 land owners and 3 companies. Of these  
agreements, five had a land value of $2,250.00 per acre (the remaining 4 did not state the value per acre of  
the land value: see HDP 714). Clark’s review further concluded that the nine negotiated agreements  
demonstrated consideration for loss of use, consistent at $350.0015 (HDP 713). Finally, Clarke concluded,  
for general disturbance or adverse effect, that the nine negotiated agreements indicated compensation of  
$1,800.00 to $2,000.00, with the majority at a value of $1,800.00 (6/7), plus a pattern at $500.00 for  
additional wellhead payment (see HDP 714). As regards the number of wellheads on Site, Clark opined,  
and the Operator argued, the padsite is comparable to an active wellsite, with only one additional wellhead  
and determined compensation on this basis.  
[86]  
In addition to the PoD evidence, Clark presented, as an alternative, empirical evidence contained  
in his Market Value Appraisal Report and Compensation Report for the Padsite dated September 28, 2020  
(the “Padsite Report”).  
[87]  
Clark employed, to determine land value, a market valuation approach which employs the direct  
sales approach that searched for comparable land holdings in Brazeau County that had sold in the 2019-  
2020 period. Four sales were identified that were considered comparable to the subject land in terms of:  
Property Rights fee simple interest  
Financing no atypical financing  
Conditions of sale - all properties were transferred with no undue stimulus  
Market Conditions the market for agricultural land had been relatively stable  
Location - all sale were located in the same general area  
Configuration - all sales were similar  
Land Use Regulations all the comparable properties and the subject property were subject  
to similar land use regulations  
Size The comparable and the subject property are similar in size.  
[88]  
The sales ranged in value from $1,734.00 per acre to a high of $2,242.00 per acre with a mean of  
$2,008.00 per acre and a median of $2,029.00 per acre. The sale that transferred closest to the effective date  
was considered the best indicator of value for the subject property (Sale 3) with a value $2,242.00. Clarke  
concluded that, based on the data reviewed, compensation for the Rights Taken should be $2,250.00 per  
acre. Clarke therefore estimated Rights Taken based on 0.03 acres, totaling as $67.50 to $68.00 (rounded).  
15 Clarke’s report at HDP 714 references compensation paid for loss of use from $300.00 per acre to $350.00 per  
acre; however, the chart at HDP 713 is consistent at $350.00 paid for all 9 comparable sites.  
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[89]  
As regards loss of use, calculated empirically, Clarke reviewed Alberta Agriculture Cropping  
Alternatives data which provided Alfalfa Hay and Mixed Hay yields along with prices over the period 2014  
to 2019. The long-term yield and price data for the Grey Wooded soil zone provided average returns per  
acre of $213.93 (Alfalfa hay) and $188.67 (Mixed Hay). From this data, Clarke estimated compensation  
for loss of use to be $215.00 per acre. Accordingly, compensation for loss of use was estimated for the  
subject disposition of $215.00 per acre and for the 0.03 acres totaling $7.00 (rounded).  
[90]  
As regards General Disturbance or Adverse Effect calculated empirically, both tangible and  
intangible, Clarke submitted the main adverse effect of farming around the location is captured in the annual  
compensation for Right of Entry Order E1579/83. Clark submitted the additional traffic and noise as a result  
of the issuance of Right of Entry Order No. 1597/2019 would be negligible, given that it is superimposed  
on the original Right of Entry and the “…main adverse effect of farming around the location is captured in  
the annual compensation of Right of Entry Order E 1579/83)”. Clark determined that a “…nominal amount  
of $200.00 per additional wellhead (in excess of the initial/existing well) would be expected to compensate  
the landowner for any of the additional inconveniences associated with this site.” Clarke calculated, based  
on 2 wellheads, an empirical value of $400.00 for the RoE. Additionally, Clarke opined the sum of $200.00  
per additional well head (1) would compensate landowners for any additional inconveniences associated  
with the Site. However, Clarke reiterated that the additional wellhead payment would be “…applicable to  
only those additional wells that are drilled”, such that the third wellsite, the wellhead associated with  
License No. 0494559, is not compensable as it was not drilled, and the evidence was the Operator has no  
intention of drilling this wellhead.  
[91]  
In summary, the Negotiated Agreement Review and Market Value Appraisal Report and  
Compensation Report Clarke prepared for this Site presented the estimated market value and compensation  
for the subject property, as at October 4, 2019, based on PoD approach and on an Empirical approach, as  
follows:  
ROE No.  
Effective date Acres  
Land Value  
($/Acre)  
Added Well Head Loss of Use  
Adverse  
Effect (Per  
Wellhead)  
& General  
($/Acre)  
Disturbance  
Empirical  
$400  
Pattern of Dealings  
$1,800 $350  
$2,250  
$2,250  
$215  
$200  
$500  
October 4,  
2019  
.03  
Additional  
1597/2019  
The Owner  
[92]  
The Owner submits it was anticipated that the wellsite on the lease pertaining to the Original RoE,  
No. E1579/83 would be reclaimed, permitting the Site and access road to return to farmland. Also, RoE  
1597/2019 is for 6.70 acres while the original right of entry order in 1983 (E1579/83) is for 6.67 acres; this  
distinction constitutes a new encumbrance on the NE-4-48-6-W5. The acreage that should be considered  
for compensation under the Act should be the 6.67 acres delineated in RoE 1579/8316.  
[93]  
[94]  
The Owner requested $250.00 for the entry fee.17  
With respect to land value, the Owner submits compensation should be based on $2,500.00 per acre  
16 This is notwithstanding that the Owner stated, in correspondence dated September 29, 2020, to the Panel that the  
Owner was of the position that the “…entry fee compensation is for the additional lands granted in the new right of  
entry” (writer’s emphasis).  
17 Note that this is notwithstanding the Owner’s position that the taking consists of the 6.70 acres, which would attract  
an entry fee of $500.00.  
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for the full acreage taken of 6.70 acres “…based on recent land sales, and Statistics Canada data, for land  
value in Alberta”, also “Bonterra has paid $2,250.00 per acre for land as far back as 2014”.  
[95]  
With respect to loss of use, the Owner requests $485.00 per acre annually totaling $3,249.50 (based  
on 6.70 acres). The Owner submits the $485.00 per acre is based on empirical evidence, as to the loss of  
gross income per acre, which it considers to be a conservative estimate of what the lease area could achieve  
in farming operations (this sum is consistent with that claimed for loss of use in the section 27 proceedings  
correlating to Tribunal File No. RR2018.0016, detailed in Decision No. LPRT2021/SR0902).  
[96]  
With respect to Nuisance/General Disturbance, the Owner requests $2,500.00 + $2,500.00 per  
additional well, resulting in compensation amounting to $7,500.00 (the Owner submits compensation for  
this component of compensation should be based on 3 wells). The Owner notes the Operator Bonterra, in  
its Initial Offer, had offered to pay an initial sum per additional well for the drilling and subsequent  
operations of each additional well. The Owner submits it has suffered substantial general disturbance in the  
first year of this ROE, for example, in committing time to writing statements of concern to AER and letters  
of objection to the Surface Rights Board, the wells were “…unwanted and (it) was anticipating a lease  
reclamation”. The Owner requested, as well, compensation for Adverse Effect in the sum of $3,500 +  
$1,000.00 per additional well for 2 wells, totaling $5,500.00.18  
[97]  
In support of this claim, the Owner provided documentation it submits as comparable lease  
agreements (the “Owner’s Comparables”), consisting of eight agreements dated 2012 to 2020. These  
agreements are said to corroborate the requested compensation, as these agreements stipulate Initial  
Consideration compensation per wellhead ranging from $2,000.00 to $5,000.00 and additional annual  
compensation per wellhead ranging from $500.00 to $1,500.00; however, as noted, the Owner asks  
$1,000.00 for each additional well.  
[98]  
The Owner submits that certain elements shaping adverse effect are not area specific. Accordingly,  
the Owner argues that, notwithstanding that the Owner’s Comparables are not necessarily in the same area  
as the subject land the compensation presented in the Owner’s Comparables should be compelling to the  
Panel. The Owner also argued numerous factors that it argues warrant additional compensation for this  
item (see below).  
[99]  
The Owner submits, in summary, that $33,249.00 is owing for First Year Compensation, and in  
subsequent years, the sum of $8,749.50 is owing, subject to review on the 5th year anniversary date.  
[100] Finally, the Owner requests the Operator sign a Zages addendum, and ask that the conditions “…as  
laid out in appendix A of the new right of entry, order no. 1597/2019, remain in place”.  
DECISION:  
1. A POD has not been established.  
(a) This issue is moot, as a result of the decision above.  
2. Subject to the deduction of the amount paid under s. 20 of the Act, the compensation  
payable to the Owner is as follows:  
(a) The new land taken that was not previously held by an operator is 0.03 acres.  
(b) Compensation is payable for land granted to the operator in the sum of  
$2,250.00 per acre * 0.03 acres totalling $67.50.  
18 The Owner requested compensation for an initial sum for nuisance as well as an annual claim for Adverse Effect.  
Adverse Effect encompasses general disturbance and the Panel uses these terms interchangeably as a result; for this  
section 23 claim, pertaining to a Padsite, the Panel awards compensation for Adverse Effect on an annual basis.  
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(c) Annual Loss of Use is payable in the sum of $350.00 per acre * 0.03 acres  
totalling $10.50.  
(d) Annual adverse effect is payable in the sum of $1,800.00 + $500.0019 totalling  
$2,300.00.  
(i) one additional wellhead is compensable and the compensation per  
additional wellhead is $500.00.20  
3. The entry fee payable is $500.00 * 6.70 acres totalling $3,350.00.  
4. Interest is payable on any unpaid compensation in accordance with s. 25(9) of the Act on and  
from the date of the respective ROE, until paid in full at the Bank of Canada rate in effect on  
the date of the ROE.  
5. Compensation is payable to Rosells’ Enterprises Ltd by Bonterra Energy Corp.  
REASONS FOR DECISION  
What is the total first year compensation payable under Order No. 1597/2019?  
What is the new land taken that was not previously held by an operator?  
[101] The Operator submits Right of Entry Order 1597/2019 is superimposed on the original Right of  
Entry E1579/83 by a difference of 0.03 acres, a technical issue likely resulting from computer calculations  
in 2019 versus hand calculations in 1983. The differential is de minimis, and there is precedent for the  
proposition that no compensation is merited in this instance as a result (see Cenovus). As a result, no  
compensation is payable for Rights Taken. The Owner disagrees, and submits the area which ought to  
attract compensation is the entire area taken, notwithstanding the land taken by RoE 1597/2019 is almost  
entirely superimposed on the Original RoE, because it was its expectation that the land would be reclaimed.  
[102] The Panel finds the area of 0.03 acres is the “fresh area” or new land taken, that is not overlapping  
on the Original RoE. However, the Panel rejects the Operator’s argument that the differential is a mere  
technicality, and possibly in error, and that the Owner is not entitled to any compensation because the area  
taken is de minimis and finds that the distinction, while small in size, is considered significant to the Owner  
as evidence was tendered of the significant effect on the Owner of the taking, including the 0.03 acres.  
[103] As regards the calculation of the entry fee, and for the reason noted above (see Cenovus), the Panel  
finds that the entry fee is calculated on the full area taken, or 6.70 acres * $500.00 totaling $3,350.00.  
[104] As regards Rights Taken, the Panel notes, as in the analysis of Order No. 1598/2019, that the  
operator in RoE 1597/2019 is the same operator holding the license for the Original RoE; the rights for  
which the rights of entry were obtained are both for drilling operations (i.e. the activity or scope of purpose  
are the same) and that compensation was ostensibly paid for Rights Taken. In consideration of section 16  
of the Act, and the relevant Tribunal and court decisions, and the absence of argument to the contrary (and  
absence of evidence as to an effect on the reversionary interest), the Panel finds that the rights of the area  
taken pertaining to the owner of the lands, the Owner (given that the interest runs with the land,  
notwithstanding an agreement to the contrary) in the Padsite have been exhausted, excluding the fresh area  
taken of 0.03 acres.  
[105] As regards annual Loss of Use, the Panel reviewed Bonavista in the context of Whitelock and  
concurs with same. The Panel finds that to avoid double compensation, loss of use is payable on the fresh  
19 Please refer to 2f(i).  
20 The Panel is basing adverse effect on the calculation of a total of two wellheads.  
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area taken (finding that there was been incremental loss of use, given the testimonial evidence of the  
Rosells).  
[106] As regards annual Adverse Effect, the Panel finds there is a differential or incremental loss in  
adverse effect, nuisance, inconvenience and noise, this is particularly so given the evidence on the part of  
both sides, that the prior wellsite, abandoned and capped in 2019, on the Original RoE involved little or no  
operator activity whereas presently, there are two active wellsites on the area taken, under RoE 1597/2019.  
As a result, the Panel awards Adverse Effect.  
What is an appropriate rate of compensation?  
a. Does the evidence establish a POD?  
[107] As previously noted, it is the Tribunal’s practice to base compensation on a pattern of dealings  
when one is established based on the evidence unless there are cogent reasons for doing otherwise.  
[108] The Panel examined the agreements identified in Clarke’s Negotiated Agreement Review, at HDP  
711. The review process identified nine negotiated agreements from 8 land owners involving 3 companies  
over the period 2015-2019 with similar facilities and within two townships of the subject disposition. Five  
of the identified agreements indicated a land value per acre of $2,250.00 per acre. As well, consideration  
paid for Loss of Use was at $350.00 per acre for all of the lands, and Adverse Effect (nuisance and general  
disturbance) was at $1,800.00 for 5 (data was unavailable for 2), with the 6th at $2,000.00, additional  
wellhead payments were consistent at $500.00 excluding one at $750.00.  
[109] The Panel finds the Operator’s PoD evidence does not necessarily reflect the state of agreements  
between landowners with agricultural operations and industry with energy operations in the general area of  
the subject lands because the agreements involved only 3 companies, with 1 company being involved in  
7/9 agreements, that operator being Bonterra. For this reason, the Panel did not find a PoD has been  
established.  
Is There A Cogent Reason to Depart from The Pattern?  
[110] This issue is moot, because the Panel did not find a PoD.  
2. What is the total first year compensation payable under Order No. 1597/2019?  
(a) What is the New Land Taken that was not previously held by an operator?  
[111] The Panel finds the area of 0.03 acres is the “fresh area” or new land taken, that is not overlapping  
on the Original RoE.  
(b) What compensation is payable for Rights Taken?  
[112] The Owner provided documentation which it asserted supported the position that the area has a  
disparate compensation for padsites, but submitted the Panel should rely upon the documentation to  
ascertain compensation for the subject site, or rely upon its empirical calculations, to determine components  
of compensation such as loss of use.  
[113] The Owner’s documentation was in respect of eight (8) agreements it posited was similar in terms  
of rights granted, type of facility, size, nature of parties and condition of industry (the “Owner’s  
Comparables”). The agreements were said to support the compensation claimed, and in particular, support  
Page 21  
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Rights Taken, General Disturbance21 and Loss of Use. As well, the Owner relied on empirical evidence to  
support its claim for loss of use (delineated, for ease of reference, in LPRT2021/SR0902).  
[114] The Panel was not persuaded that by the Owner’s agreements. Four of the agreements were located  
an estimated 264 miles from the Land. The Panel finds that this distance, in the absence of evidence to the  
contrary, is prima facie an indication that the comparables are dissimilar to the subject. Of the remaining  
documentation, the Panel was unable to glean relevant details, because the documentation was incomplete,  
and in the absence of complete documentation and information as to effective dates, facilities, location  
(proximity to subject area), and land use, the Panel was unable to ascertain the comparability or reliability  
of this data. Several of the documents submitted in respect of compensation for the Padsite appeared to  
reference facilities which were dissimilar (for example, the correspondence from Ghost River Resources  
Inc. dated October 23rd, 2018 which referenced a proposed multiwell Oil Battery site); the effective dates  
were dissimilar (for example, the Bellatrix/Hughes agreement and Sinopec Daylight Energy Ltd/Martin  
agreement, were dated 2012); certain of the agreements supported the Operator’s position as to Rights  
Taken and Loss of Use and Adverse Effect (for example, the Bellatrix Exploration Ltd. agreement on Land  
Value at $2,000.00 per acre, and loss of use at $350.00 per acre and see the April 28 2019 amendment to  
surface lease agreement (Padsite) between Klein and Ghost River Resources Inc. which compensated at  
$2,000.00 for” any additional adverse effect, general disturbance, loss of use and entry fee and land value  
payable …”. Finally, three sites, the Karve agreements in 2019 and the Martin agreement in 2012 appear  
to depict residences, which would indicate that these sites were home quarter sections which would  
typically attract a higher value for Adverse Effect, while the subject disposition was not a home quarter.  
[115] The Panel was unable to ascertain evidence to support the claim of $2,500.00 for the initial well as  
well as $2,500.00 for each of the additional (new) wells or to support the claim that $2,500.00 per acre for  
the value of the land taken is a fair valueand a “conservative value” based on recent land sales in the  
area.  
[116] As regards loss of use, the Owner submitted empirical evidence, and requested $485.00 per acre.  
This claim relied on AFSC crop insurance yields and prices for a rotation that included oilseed, cereal and  
hay crops to calculate the $485.00 average per acre as presented in the table below. The evidence relied  
upon regarding yields and prices was, in respect of Decision No. LPRT2021/SR0902 Tribunal file  
RR2018.0016 (the “Decision”).  
21 The Owner requested compensation for nuisance/general disturbance as well as Adverse Effect; however, Adverse  
Effect encompasses nuisance and general disturbance.  
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Details of Yields and Prices used to Determined Requested Loss of Use Compensation  
Crop  
Yield Price  
Straw  
Total  
Crop  
$/Acre  
Square Bales $/Bale $/Acre  
$/Acre  
Canola  
41.7  
62.6  
78.5  
61.8  
90  
$10.66  
$5.99  
$5.17  
$4.25  
$6.50  
$75.00  
$444.52  
$374.97  
$405.85  
$262.65  
$585.00  
$297.00  
$444.52  
$554.97  
$585.85  
$442.65  
$585.00  
$297.00  
$485.00  
CPS Wheat  
SP Wheat  
Triticale  
45  
45  
45  
$4.00 $180.00  
$4.00 $180.00  
$4.00 $180.00  
Hay Bales  
Hay Round Bales  
3.96  
Average $/Acre  
[117] In the Decision, the Panel found the Owner’s request of $485.00 per acre for loss of use for the Site  
not representative of likely crop production and revenues over the relevant period of time. Although the  
Owner submitted likely yields will meet those provided for in the AFSC yield levels, there was no evidence  
to demonstrate that the yields and prices used to determine the $485.00 claim for loss of use provide a basis  
for determining future losses. In summary, the Panel did not accept the Owner’s proposed sum for loss of  
use, for the same reasons noted in the Decision. In the interests of brevity, the Panel shall adopt its analysis  
and conclusion on this evidence, as delineated in Decision No. LPRT2021/SR0902, that is, that the Panel  
is not persuaded to deviate from the compensation established by the Operator’s Comparables on Loss of  
Use and Adverse Effect for the reasons noted in the Decision.  
[118] As regards Loss of Use and Adverse Effect, the Operator tendered empirical evidence for both of  
these items of compensation at $215.00 per acre and Adverse Effect of $400.00 and $200.00 per wellhead,  
respectively. As to loss of use, Clarke relied upon AFSC price records for the years 2014 to 2020 for grass  
hay. As for Adverse Effect, Clarke relied upon information provided by the operator for the site, and  
additional traffic as a result but opined that the increase in traffic, and noise was negligible and therefore  
concluded a nominal sum of $200.00 per wellhead22. The Panel finds that these factors do not necessarily  
take into consideration the Owner’s evidence and testimony of its witnesses, which greatly contested the  
“nominal nature” of the adverse effect suffered by the additional wellheads, particularly given that the status  
of the wellheads on the site, prior to the construction of the Padsite and drilling of the wellheads, was  
suspended. (the wellsite drilled in 1983 was suspended, and abandoned as of September 6, 2019) and, for  
these reasons, prefer the evidence demonstrated by the Negotiated Agreement Review as to General  
Disturbance and Loss of Use, at $1,800.00 per acre and $350.00 per acre, respectively, because of the  
similarity in attributes between the subject and the comparable agreements.  
[119] With respect to s. 25(1)(b) of the Act, the Panel finds the Operator’s comparables are the most  
persuasive evidence as to compensation for Rights Taken (as well as Loss of Use and Adverse Effect)  
because these negotiated agreements were obtained within 2 townships or a 12-mile proximity of the subject  
parcel and this distance/location was considered to be reasonable as lease agreements within this distance  
are more likely to be similar in climate/topography/soil than leases further in distance. As well, the  
agreements were with respect to rent reviews or new acquisitions for 2015-2019, close to the effective date  
of the subject and similar facilities (padsites). As well, the size involved in the negotiated agreements ranged  
from 3.63 to 6.29 acres which was relatively similar to the subject disposition (the full taking). As well, the  
22 As the Panel understands, Clarke quantified First Year Adverse Effect as $400.00, based on his estimation that each  
wellhead should attract a nominal sum of $200.00, because the incremental adverse effect associated with it (traffic,  
noise) was negligible.  
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Decision No. LPRT2022/SR1243  
type of land and its use for agricultural pursuits (cultivated/hay/pasture/treed) was similar. In summary, the  
Panel found that, while the comparables relied upon by the Operator did not establish a PoD for the reasons  
stated above, the comparables were sufficiently persuasive such that the Panel found that the comparables  
evidenced compensation for the subject site for Rights Taken or land value, at $2,250.00 based on the  
agreements in the Operator’s Comparables.  
[120] As to the Operator’s empirical data, the Operator relied upon the direct sales approach, to ascertain  
market value for the land, using four sales of lands in proximity of the subject area, whose land use  
designation was agriculture. The Panel notes that the sales were considered similar in terms of location,  
access, soil characteristics and land use classification and ranged from $1,734.00 per acre to a high of  
$2,242.00 per acre, rendered a median of $2,029.00 per acre versus the $2,250.00 gleaned by the PoD  
approach. Clark opined that Sale 3 transferred close to the effective date and was considered to be the best  
indicator of value for the subject property, which led to the estimated market value of the land of the subject  
property as of October 4, 2019 at $2,250.00 per acre.  
[121] The Panel finds that the agreements contained in the Operator’s Comparables are the best indicator  
of land value because of their similarity to the subject land. Furthermore, Clarke’s empirical evidence  
corroborated the compensation of $2,250.00 per acre. As a result, the Panel determines land value at  
$2,250.00 per acre.  
[122] The Panel notes that the Owner disputed the comparability of these lands in that it was argued the  
subject land were superior; however, in the absence of persuasive evidence from the Owner to deviate from  
this evidence because of dissimilarity due to comparability relative, for example, to the proportion of treed  
area on the subject lands, or topography of these lands23, the Panel is dissuaded to deviate from the  
compensation established in the Operator’s Comparable Agreements.  
(c) What compensation, if any, is payable for Annual Loss of Use?  
[123] Eight of the nine comparables provided in the Operator’s Negotiated Agreement Review involved  
compensation for annual Loss of Use in the sum of $350.00 per acre (one comparable was at $300.00) For  
the reasons listed above, the Panel determines annual compensation for annual loss of use at $350.00 per  
acre.  
(d) What compensation is payable for Annual Adverse Effect?  
(i) How many additional wellheads are compensable and what is the compensation per  
additional wellhead?  
[124] All of the comparables provided in the Operator’s Comparables, which contained a breakdown for  
this item, stipulated compensation for this item in the sum of $1,800.00, excepting comparable 6 at  
$2,000.00. The Panel reviewed comparable 6, but did not find any compelling rationale for its higher sum  
for general disturbance. As a result, the Panel determines, in congruence with the Operator’s Comparables  
evidence, contained in its Negotiated Agreement Review for the Site, annual Adverse Effect in the sum of  
$1,800.00.  
[125] The Owner submitted a claim for $3,500.00 for baseline adverse effect plus $1,000.000 for each  
additional wellhead and submitted a number of factors as warranting additional adverse effect. In particular,  
the Owner had to move a bee yard in order to prevent damage to the clusters that was likely to have resulted  
23 Clark’s evidence was that the subject Land is level to undulating, with a draw that runs east/west along the southern  
boundary and then north-south through the western portion of the subject property; proportion of treed area was not  
provided, the Land was described as desirable and very good farm land, by the Owner’s witnesses.  
Page 24  
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from the vibrations created by drilling activities. As well, the Owner noted the newly raised padsite and  
improper ditching have created drainage problems and water accumulation on their adjacent hay field.  
Lease maintenance, weed control and fencing had been non-existent leading up to the drilling of the new  
wells. The gate at the entrance of the lease road was never closed or locked despite requests that the gate  
remains closed or locked at any time there are no personnel on site. As well, the level of disturbance during  
drilling activities was extremely high, noting a game camera captured 4,950 images of traffic going in and  
out of the site. The Owner submitted photographs which it argued demonstrated some of these effects on  
the remaining lands.  
[126] The Panel acknowledges the concerns the Owner presented in regards to its claims for nuisance  
and adverse effect, including the moving of the bee yard, concerns with ditching and drainage and increased  
traffic to the Site. The Panel further acknowledges the Owner’s concern regarding “increased traffic and  
activity” surrounding the drilling process but finds that the evidence presented does not establish that the  
subject Site is dissimilar to the sites presented in the Operator’s Negotiated Agreement Review and, as well,  
the Panel finds that the reasoning stated in the Decision as regards adverse effect, apply equally to this  
decision as regards these concerns.  
[127] The Panel reviewed the Operator’s empirical evidence, which concluded adverse effect in the  
annual sum of $500.00 but preferred the value demonstrated in the comparable agreements because it was  
not persuaded that the assumptions which underlay the empirical calculations, were necessarily applicable  
to the Owner. In summary, the Panel is persuaded the evidence demonstrated in the Negotiated Agreement  
Review demonstrates compensation for adverse effects that is demonstrated to be is acceptable to land  
owners and operators in the immediate area of the subject lands and best reflects the value for the subject,  
in the annual sum of $1,800.00. As a result, the Panel finds annual adverse effect due to the Owner in the  
sum of $1,800.00 (plus compensation for additional wellhead(s) as per below).  
How many wellheads are compensable and at what rate?  
[128] Martel testified that in late 2019, two new wells were drilled on the wellsite (15-9 and 102/15-9  
correlating to Well Licenses Nos. 0494557, 0494558). However, the third wellsite identified in the RoE,  
correlating to Well License No. 0494559, has not been drilled, the Operator has no plans to drill this third  
well. Martel testified that the AER license for this well expired May 22, 2020. As a result, the Panel finds  
that there is one additional wellhead to be compensated for (i.e. a total of 2 wellheads that attract  
compensation).  
[129] With respect to section 25(1) (d) of the Act, the comparable lease agreements in the Negotiated  
Agreement Review established a range for adverse effects of $500.00 to $750.00 per each additional  
wellhead. As well eight of the nine comparable lease agreements were at $500.00 per wellhead. The Panel  
finds that this evidence establishes annual compensation for additional wellheads in the area at $500.00 per  
wellhead.  
3.  
What is the entry fee payable?  
[130] As previously stated, in Cenovus, based on a “plain reading” of section 19(2), at section 8.5, the  
Panel found the calculation of the entry fee was to be calculated on the full acreage of the taking. The Panel  
agrees with the interpretation of section 19 as per Cenovus and finds the affected area is 6.70 acres, therefore  
the entry fee is calculated based on $500.00 per acre * 6.70 acres totaling $3,350.00.  
[131] The Panel further notes that the Owner had requested the Operator sign a Zages addendum;  
however, the hearing was held to determine the compensation for the ROE Order. The factors that the  
Tribunal may consider are set out in section 25 of the Act. The Owner did not provide authority or  
justification for the Panel to depart from its ordinary practice of refraining, in a section 23 hearing, from  
Page 25  
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Decision No. LPRT2022/SR1243  
directing the signature of a Zages addendum, or provide evidence for its rationale, as a result, the Panel  
declines this request.  
4.  
Is interest payable, and if so, at what rate and to whom?  
[132] Pursuant to section 25(9) of the Act, the Panel directs interest is payable on outstanding amounts  
calculated at the Bank of Canada rate in effect on the date of the Right of Entry Order on initial  
compensation from the date the Right of Order was issued until paid in full; and on annual compensation  
from the date it becomes due.  
5.  
To Whom is compensation payable?  
[133] Section 23 of the Act requires that the Panel determine to whom the compensation is payable.  
[134] As in Tribunal File No. RE2019.0052, the Panel notes the registered landowner is Rosells’  
Enterprises Ltd. The Panel was not provided with evidence from the Owner requesting compensation to  
any other party, and the Owner requested compensation be remitted to it, the Panel directs compensation  
is payable by Bonterra Energy Corp. to Rosells’ Enterprises Ltd.  
COSTS24  
[135] The hearing combined section 23 and section 27 proceedings for which the Owner and Operator  
requested the Panel determine costs. The Panel considered the written submission received from the  
Landowner’s Representatives and the Operator along with section 39 of the Act and the proceedings.  
OWNER’S POSITION:  
[136] The Owner seeks compensation for the time spent by its representatives Wayne Rosell, Matthew  
Rosell, and Elizabeth Seutter-Rosell. Wayne is one of the Owner’s shareholders. Matthew and Elizabeth  
are Wayne’s son and daughter-in-law. The Owner and the Operator submit that the Panel should treat them  
like unrepresented litigants. The evidence is that they are closely involved with the day-to-day operations  
on the Land as might be expected with a family farm. Given the role they fulfill and given the parties’  
submissions, the Panel agrees that they should be treated as unrepresented litigants as far as an application  
for costs is concerned.  
24 As previously noted, this cost decision applies to the within decision, and to the Section 27 Decisions.  
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Decision No. LPRT2022/SR1243  
[137] The Owner’s claims for costs is as follows:25  
Description  
Hours  
209.25 $75.00  
84.75  
14.50  
Rate  
Amount Claimed  
$15,693.75  
$6,356.25  
Elizabeth Seutter-Rosell, Personal Costs  
Matt Rosell, Personal Costs Time  
Wayne Rosell, Personal Costs Time  
Expenses  
$75.00  
$75.00  
$1,087.50  
$227.81  
Total Claim  
$23,365.31  
[138] The Owner submitted that the Operator has prolonged certain issues, and submitted voluminous  
documentation which “…takes time to analyze” and the claim for personal costs is extremely reasonable,  
in the circumstance. Further, the Owner attributes any excessive cost to the actions or omissions of the  
Operator, in failing to deal with concerns regarding the operations and/or consequences of the operations  
of the Operator, on the land and cropping operations.  
[139] The Owner’s representatives acknowledge the typical $50.00 paid for landowner costs, on an  
hourly basis, but argue that their time is worth more, because of their education and background, on the  
“agricultural side”. As well, they submit the Operator has acknowledged that their time is worth $75.00  
per hour in an agreement reached between the parties (see General Release of any Claim for Damages, at  
HDP 1121). Finally, they submit their claim is very reasonable because they did not charge for time spent  
on activities incurred as a result of the Operator’s activities such as the moving of the bee hives.  
OPERATOR’S POSITION:  
[140] The Operator submits that the Owner’s claim is excessive. In particular, the Operator takes issue  
with the Owner’s submission that the Operator was not responsive in attempting to deal with the Owner’s  
issues, as they arose, and argues there is nothing “…tyrannical about Bonterra applying for a well licence,  
or a Right of Entry, that’s how the regulatory system works”. Further, the Operator submits that the claim  
is excessive and unreasonable overall (i.e. 143 hours spent preparing for a 3-day hearing), the hourly rate  
claimed is in excess of that typically permitted by the Tribunal, there is excessive time charged for certain  
activities, there is time charged for unidentified persons (i.e. Floyd Lauer), time spent is inflated in that the  
same documents were used in prior hearings, and there is duplication in the expenses overall, between  
persons claiming for expenses.  
[141] The Operator submits that the entirety of the claim should be fixed at $5,000.00, based on a  
deduction for duplication, and a reduction in acknowledgement that costs claimed are excessive and/or  
unreasonable. As well, certain costs have been claimed that are unrelated (i.e. costs for time spent on AER  
proceedings) or for which there is insufficient description to ascertain if the costs are related to the  
proceeding (i.e. costs claimed for unidentified persons, such as Floyd Lauer).  
ISSUE  
[142] The Panel considered the following issues:  
1. What costs, if any, should be awarded, and to whom?  
2. If costs are awarded, by whom are they payable?  
25 The Respondent’s claim for costs is presented on page 1120 of 1302 of Exhibit 1.  
Page 27  
File No. RR2018.0016 (+3)  
Decision No. LPRT2022/SR1243  
DECISION  
[143] The Panel awards costs payable to the Respondent by the Operator Bonterra as follows:  
1. The personal time of the representatives Elizabeth Seutter-Rosell, Matt Rosell, and Wayne  
Rosell being 233.00 hours at $50.00 per hour for a total of $11,650.00.  
2. Expenses supported by receipts in the amount of $227.81.  
REASONS & ANALYSIS  
[144]  
In analyzing the costs submitted, the Panel considered the application, the written submissions,  
the Act, and the Surface Rights Rules (the “Rules”).  
[145] Section 39 of the Act states:  
39(1) The costs of and incidental to proceedings under this Act are in the discretion of the  
Tribunal.  
(4) The costs may include all preliminary costs of the respondent necessarily incurred in  
reaching a decision whether to accept the compensation offered by the operator.  
[146] The task of the Panel is to assess the costs claimed to determine if they meet the requirements of  
section 39(1) of the Act. Rule 31(1) provides that the Tribunal may award costs if it is of the opinion these  
costs are incidental and necessary to the section 23 and section 27 proceedings.  
[147] The Panel considered the various factors set out in Rule 31 of the Surface Rights Rules which lists  
specific criteria that the Tribunal may consider when determining whether costs should be awarded and the  
amount of the cost award. In particular, Rule 31(1) states that a request for costs must include (a) reasons  
to support the request, (b) a detailed description of the costs sought, and (c) copies of any invoices or  
receipts for disbursements.  
[148] The Panel accepts that the Owner’s representatives were required to commit personal time to these  
proceedings. As well, the Panel recognizes that developing evidence and document preparation can be a  
time-consuming aspect of compensation applications for Respondents/Owners. However, there are claims  
of time for meetings and document preparation that are not described in sufficient detail to allow the Panel  
to understand how the time was incurred in relation to the proceedings. These factors were considered when  
determining specific amounts claimed for the Owner’s time committed to the proceedings.  
[149] Rule 31(2) of the Surface Rights Rules reads as follows:  
In making an order for the payment of a party’s costs, the Board may consider:  
(a) the reasons for incurring costs;  
(b) the complexity of the proceeding;  
(c) the contribution of the representatives and experts retained;  
(d) the conduct of a party in the proceeding;  
(e) whether a party has unreasonably delayed or lengthened a proceeding;  
(f) the degree of success in the outcome of a proceeding;  
(g) the reasonableness of any costs incurred;  
(h) any other factor the Board considers relevant.  
Rule 31(2)(a) the reasons for incurring costs  
Page 28  
File No. RR2018.0016 (+3)  
Decision No. LPRT2022/SR1243  
[150] Neither the Owner nor the Operator specifically referenced Rule 31(2)(a). The Panel finds that the  
reason for incurring costs, being the proceeding itself, was reasonable, in all the circumstance, given that  
the parties could not agree on a resolution to compensation under sections 23 and 27.  
Rule 31(2)(b) the complexity of the hearings  
[151] Neither the Owner nor the Operator specifically argued the complexity of the proceeding.  
[152] The Owner argues that the claim for personal costs is proportionate to the scope of the issues at  
hand. Further, the Owner submitted their costs are for both rent review files RR2018.0016 and  
RR2018.0017 as well as right of entry files RE2019.0051 and RE2019.0052. The entire process has taken  
2 years including eight Dispute Resolution Conferences (DRC’s) which required preparation and follow  
up. As well there were two Tribunal decisions before the hearing began. Therefore, the hearings are  
complex and merit a higher award of costs.  
[153] The Panel notes that the proceeding involved a single landowner, two surface leases, two Right of  
Entry Orders and one operator. The usage of the Leases differed. Both sides introduced empirical and  
pattern of dealings evidence, which increased the complexity slightly. The Tribunal conducted eight  
Dispute Resolution Conferences. The hearing itself lasted for three days. The Panel found that there were  
no unique or complex legal issues that would require a greater than usual amount of time for reviewing  
submissions and preparing arguments for the hearings. The Panel finds that the matter overall was of above  
average complexity, given that the hearing addressed both section 27 and section 23 matters, in a combined  
hearing with similar evidence submitted for each matter.  
Rule 31(2)(c) the contribution of the representatives.  
[154] The Panel is mindful that the Owner’s representatives Elizabeth Seutter-Rosell and Matt Rosell did  
not have legal counsel or expert witnesses. They provided insight to the unique aspects of the farm  
operations and the effects of the operator’s activities. However, the Panel was challenged in determining  
appropriate rates of compensation due to a lack of convincing and complete information. The evidence for  
loss of use and adverse effect was narrow in scope and not corroborated by independent sources. In  
considering the evidence, the Panel finds the time claimed is not justified which gives weight to a reduction  
in costs. The Panel notes Wayne Rosell did not participate in the hearing itself.  
Rule 31(2)(d) the conduct of the party in the proceeding.  
[155] The Panel notes that the Owner’s representatives did not have legal representation. The Panel finds  
that all parties in the hearing conducted themselves in a reasonable, and appropriate matter; this was not a  
factor in the Panel’s decision to reduce costs. The Panel notes the proceedings were completed in less than  
the allotted time.  
Rule 31(2)(e) whether a party has unreasonably delayed or lengthened a proceeding.  
[156] The Panel notes that there was an unusually high number of Dispute Resolution Conferences  
(DRC’s). The Owner submits that the Operator unreasonably delayed the proceeding, insofar that the  
Operator unnecessarily prolonged some issues by disagreeing with a formal request by the Respondents to  
have concurrent disclosure dates to which the Operator ultimately agreed at the DRC. The Operator argued  
that the Owner contributed to the delay in the proceeding.  
[157] In considering Rule 31(2)(e), the Panel is not persuaded either party unreasonably delayed or  
lengthened the proceeding or the hearing. This was not a factor in the Panel’s decision to reduce costs.  
Page 29  
File No. RR2018.0016 (+3)  
Decision No. LPRT2022/SR1243  
Rule 31(2)(f) the degree of success in the outcome of the proceeding  
[158] Neither party specifically addressed this factor, in the Costs Claim.  
[159] The Panel finds that the Owner did not have success in persuading the Panel to accept their  
empirical or comparable evidence. This was a minor factor in the Panel’s decision to reduce the award of  
costs.  
Rule 31(2)(g) the reasonableness of any costs incurred  
[160] There are two aspects to reasonableness, the macro view and the micro view. The macro view is  
whether the Owner acted reasonably in seeking a ruling from the Tribunal. The Panel has already found  
that the Owner acted reasonably; the second aspect of reasonableness (the micro view) is whether (1) each  
specific billed amount relates to a necessary action (b) the time spent for these actions is reasonable, and  
(c) the rate charged for the time is reasonable.  
[161] The Owner submitted costs were incurred over a two-year period which included time  
commitments for negotiations with the operator, participating in multiple DRCs and preparing for the three  
days of hearings. During this time, the Operator submitted over 700 pages of documents requiring time for  
review and analyses by the Respondents.  
[162] The Operator submitted that costs related to the Alberta Energy Regulator (AER) were not related  
to these proceedings.  
[163] The Operator submitted that the Owner’s claim for time spent preparing evidence is excessive since  
many of the comparables presented in the hearings had been previously provided to the Tribunal for another  
Tribunal decision. The Operator submits comparables submitted by the Owner in these proceedings have  
been provided to the Tribunal for another Surface Rights decision Bonterra Energy Corp. v Rosell, 2019  
ABSRB 586.  
[164] The Operator also submitted that the Owner failed to provide sufficient detail in order for the Panel  
to assess the reasonableness of the claims. Costs claimed for October 11, 2019 for binder preparation do  
not provide a sufficiently clear explanation of how they are incidental to the proceedings.  
[165] On whether individual amounts claimed relate to a necessary action, the Panel takes guidance from  
Anderson Energy Ltd. v Hehr, 2010 98463 (AB SRB) in which the Panel held that the  
“reasonableness requirement recognizes that no party is entitled to be reimbursed for costs which are  
excessive or unrelated to the proceedings.”  
[166] As regards the costs claimed by Elizabeth Seutter-Rosell, and Wayne Rosell (April 9 and April 10,  
2019), the Panel finds the costs claimed pertaining to the Alberta Energy Regulator (13.25 hours) are not  
related to this proceeding. Pursuant to section 39 of the Act, “The costs of and incidental to proceedings  
under this Act, are in the discretion of the Tribunal.” There are two important aspects in this language: the  
awarding of costs is discretionary, and the costs need to be of and incidental to proceedings under the Act.  
In Grand Rapids Pipeline GP Ltd. v Pentelechuk, 2021 ABSRB 407 (), the Panel found, in the  
interpretation of a section 23 proceeding, that landowner costs associated with proceedings before the AER,  
…. were not “of and incidental to” the ROEs issued pursuant to the Act. This Panel agrees with the reasoning  
in Pentelechuk, and excludes costs associated with AER proceedings.  
[167] The Panel notes there are cost claims for activities for which there is insufficient information to  
ascertain whether the activity pertained to gathering evidence regarding compensation. The Panel finds the  
time claimed for meeting with Floyd Lauer (5.50 hours on September 18, 2020) is not described in sufficient  
Page 30  
File No. RR2018.0016 (+3)  
Decision No. LPRT2022/SR1243  
detail to provide the Panel the reason for, or identity of “Lauer.  
[168] Further, the Panel notes there is limited explanation of how the time claimed by Elizabeth Seutter-  
Rosell for “pipeline research” (September 23, 2020), was related to the proceeding. However, in this case  
the Panel presumes this time was related to gathering evidence regarding compensation for the pipeline  
Right of Way.  
[169] The Panel also notes the Owner did not provide details to clearly indicate whether specific claims  
related to Emails and “Prep” were necessary activities. However, the Panel finds it reasonable to find that  
these activities were necessary actions with respect to preparing for the hearing and responding to both the  
Tribunal and the Operator.  
[170] After excluding the 13.25 hours related to AER activities and the 5.5 hours related to Lauer, the  
Panel finds a 20% discount applied to the remaining hours is appropriate to account for claims that lack  
sufficient detail to ensure they were necessary and reasonable as follows:  
The Panel finds the hours claimed by Elizabeth Seutter-Rosell, and Matt Rosell for reviewing  
Bonterra submissions are excessive.  
The hours claimed for drafting letters and preparing for the hearing are out of proportion to the  
tasks.  
[171] As per the Costs to Date document submitted by the Owner, the representatives are requesting  
personal costs based on the time committed to the entirety of the proceedings at the rate of $75.00 per hour,  
along with expenses.  
[172] The Owner’s representatives submit that their education and background warrant the rate of $75.00  
per hour for the hours claimed. As well, reference was made to an October 4, 2018 General Release of  
Claim for damages between the operator and the Owner that they submit acknowledges the value of their  
time by paying the rate of $75.00 per hour.  
[173] The Operator referred to Bearspaw Petroleum Ltd. v Russell, 2017 ABSRB 803 decision which  
notes that the rate of $50 per hour is commonly used by the Board (Tribunal).  
[174] The issue of costs awarded to an unrepresented litigant was discussed in Dechant v. Law Society of  
Alberta (2001) ABCA 81. In that case, the Court noted that costs are often awarded to indemnify a party  
for its expenditure on legal fees and disbursements. When a party is self-represented, it is not out of pocket  
for legal fees, so an award of costs must be based on factors other than indemnification, including the lost  
or forgone opportunities of the litigant because of self-representation.  
[175] In the case at hand, the Owner did not present evidence that would allow the Panel to determine  
the opportunity cost of the time spent by its representatives on the action.  
[176] There is precedent from the Tribunal for an award of costs at $50.00 per hour. The Owner’s  
rationale that its representatives deserve a higher hourly rate because of their advanced education is not  
persuasive. They did not provide case authority to that effect, nor was their argument on this point  
persuasive. In the absence of evidence about opportunity cost, the Panel considers the fairest basis for costs  
is $50.00 as has been established as the Tribunal’s practice.  
[177] Further, the Operator submitted the Owner’s claim for time spent meeting individuals was not  
supported with sufficient detail. The Operators position on costs was that they should be fixed at $5,000.00  
which was obtained by awarding $50.00 per hour, less the AER costs and backing out Matt Rosell’s costs  
(because there was duplication) and dividing the remainder by half.  
Page 31  
File No. RR2018.0016 (+3)  
Decision No. LPRT2022/SR1243  
[178] In rebuttal, the Owner submitted that the time indicated for September 11, 2020 did produce  
comparable data that had not been previously presented to the Tribunal. As well, there was time committed  
to gathering evidence of comparables that was not included in the claim for costs.  
CONCLUSION ON COSTS  
[179] After considering the Act, the evidence, arguments and all of the factors listed in the Surface Rights  
Rules and in particular the reasonableness of the cost claims, the Panel is persuaded that, as regards costs  
payable by the Operator Bonterra Energy Corp. to the Landowner Rosell Enterprises Ltd. in the total amount  
of $11,877.81 determined as follows:  
Hours  
Elizabeth Seutter-  
Rosell  
Matt Rosell  
84.75  
Wayne Rosell  
Total  
Initial Claim  
209.25  
-8.25  
-5.00  
196.00  
39.20  
156.80  
157.0  
$7,850.00  
14.50  
-5.00  
308.50  
Less Hours re: AER  
Less Hours Re: Lauer  
Remaining Hours  
20% Reduction  
Hours After Reduction  
Hours After Rounding  
Cost Award At $50 per hour  
Expenses  
-0.50  
84.25  
16.85  
67.40  
68.0  
9.50  
1.90  
7.60  
8.00  
$400.00  
57.95  
231.80  
233  
$11,650.00  
$227.81  
$11,877.81  
$3,400.00  
Total Cost Award  
$7,850.00  
$3,400.00  
$400.00  
ORDERS:  
[180] Orders will issue confirming the rates of compensation and awarding costs as set out in this  
decision.  
Dated at the City of Edmonton in the Province of Alberta on August 31, 2022.  
LAND AND PROPERTY RIGHTS TRIBUNAL  
__________________________________________  
Terri Mann, Member  
Page 32  
APPENDIX A  
EXHIBITS:  
Exhibit  
Number  
Description  
Filed by:  
LPRT and  
Parties  
Operator  
1
2
3
4
Hearing Documents Package  
Bonterra Records Relating to Costs  
Rent Review Document Rosells’ Enterprises and ARC  
Energy  
Respondents  
Respondents  
Statistics Canada Data on Land Values  

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