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The Surface Rights Act
This is an unofficial archived version of The Surface Rights Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.

R.S.M. 1987, c. S235

The Surface Rights Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1

In this Act

"agreement" means an agreement between an operator and an owner or occupant relating to a lease or to surface rights, but does not include a lease; ("accord")

"battery site" means that portion of the surface of land, other than a well site or roadway, required for access to and to accommodate separators, treaters, dehydrators, storage tanks, surface reservoirs, pumps and other equipment, including above ground pressure maintenance facilities, that are necessary to measure, separate or store prior to shipping to market or disposal, or necessary to produce, the fluids, minerals and water, or any of them, from wells; (" emplacement pour des installations")

"board" means The Surface Rights Board appointed pursuant to this Act; ("Commission")

"lease" means a lease of surface rights and includes a mineral lease where surface rights are included in the mineral lease; ("bail")

"mineral" means oil and natural gas, or either of them, and any other substance that the Lieutenant Governor in Council may by order, published in The Manitoba Gazette, declare to be a mineral; ("minéral")

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")

"natural gas" means a mixture containing methane, other paraffinic hydrocarbons, nitrogen, carbon dioxide, hydrogen sulphide and minor impurities, or some of them, which is recovered or recoverable at a well from an underground reservoir and which is gaseous at the conditions under which its volume is measured or estimated, and includes all fluid hydrocarbons that are not oil; ("gaz naturel")

"occupant" means a person other than the owner, who is in actual and lawful possession of land; ("occupant")

"oil" means crude oil and all other hydrocarbons regardless of gravity, that are or can be recovered in liquid form through a well by ordinary production methods from a natural underground reservoir containing an accumulation of oil or oil and natural gas; ("pétrole")

"operator" means a person who has the right to conduct any operation for the purpose of exploring for a mineral, or for drilling a well for the production of a mineral, and includes any person who has the control and management of a well; ("exploitant")

"order" except where the context otherwise requires, means an order of the board; ("ordonnance")

"owner" means

(a) the person or the executor, administrator, successor or other legal or authorized representative of that person, other than a mineral owner unless the mineral owner is also the owner of the surface of the land, in whose name a certificate of title has been issued under The Real Property Act or an instrument is registered under The Registry Act, or

(b) in the case of Crown land, the department of the government of the province or other body administering the land, or

(c) the successor in interest or assignee under a bona fide agreement for sale or otherwise from an owner as defined in subclause (a) or (b); ("propriétaire")

"person" includes a partnership or syndicate and their agents; ("personne")

"power line" means an electric power line or that portion thereof that is constructed or is to be constructed for the purpose of any operations for or incidental to the drilling for, producing or recovering a mineral; ("ligne de transport d'électricité")

"roadway" means that portion of the surface of land required for access to a well site; ("voie")

"service line" means a pipe or conduit of pipes or ancillary equipment, including a flow line, used for the transportation, gathering or conduct of a mineral or water or other fluid in connection with the producing operations of an operator; ("canalisation de service")

"surface rights" means

(a) the land or any portion thereof or any interest therein, except mines and minerals within the meaning of The Mines Act, or a right of entry thereon, required by an operator for the purpose of exploring for, developing, producing or transporting a mineral, or

(b) the right to establish, install or operate any machinery, equipment or apparatus for use for or in connection with the drilling, completion or producing operations of a well on a well site, or

(c) the right or obligation to condition, maintain, or restore the surface of land where the land has been or is being held incidental to or in connection with the exploring for, developing or producing a mineral, or the land has been held or is being held incidental to or in connection with the laying, constructing, operating, maintaining or servicing of a battery site, service line, roadway or power line; ("droits de surface")

"well" means a well as defined in The Mines Act; ("puits")

"well site" means that portion of the surface of land required for the conduct of exploring, developing, or producing operations of a well. ("emplacement pour un puits")

PART I

PURPOSES

Purposes of Act.

2

The purposes of this Act are

(a) to provide for a comprehensive procedure for acquiring and utilizing surface rights;

(b) to provide for the payment of just and equitable compensation for the acquisition and utilization of surface rights;

(c) to provide for the maintenance, preservation and restoration of the surface of land acquired in connection with surface rights;

(d) to provide for the resolution of disputes between operators, occupants and owners arising out of the entry upon, use or restoration of the surface of land.

Crown bound.

3

This Act applies to the Crown with respect to the exploring for, developing or producing a mineral.

Conflict with other Acts.

4(1)

In the event of conflict between any provision of this Act and any provision of any other Act, the provision of this Act prevails, but where there is a conflict between this Act and any provision of The Mines Act or of any regulation made thereunder, the Lieutenant Governor in Council shall by order determine which provision shall prevail.

Non-application to pipe line.

4(2)

Notwithstanding subsection (1), this Act does not apply to a pipe line within the meaning of The Pipe Line Act.

Conflict between Act and other instruments.

5

Where there is a conflict between the provisions of this Act and any grant, conveyance, lease, licence permit, or other instrument or document, whenever made or executed the provisions of this Act prevail.

PART II

SURFACE RIGHTS BOARD

Continuation of board.

6(1)

"The Surface Rights Board" composed of not fewer than three members appointed by the Lieutenant Governor in Council is continued.

Term of office.

6(2)

Unless a member sooner dies, resigns, or is removed from office, each member shall serve for such period as is specified in the order by which the member is appointed and thereafter until the member's successor is appointed.

Presiding and deputy presiding member.

6(3)

The Lieutenant Governor in Council shall designate one of the members of the board as the presiding member of the board and another member as the deputy presiding member of the board.

Remuneration and expenses.

6(4)

The presiding member, deputy presiding member and each other member of the board shall be paid such remuneration as may be fixed by the Lieutenant Governor in Council and in addition each member may be paid such reasonable out-of-pocket expenses incurred by the member in the performance of his duties as member of the board as may be approved by the minister.

Meetings.

6(5)

The board shall meet at the call of the presiding member or at the direction of the minister.

Quorum.

6(6)

A majority of the members of the board, including the presiding member or deputy presiding member, constitutes a quorum at any meeting of the board.

Validity of acts where a vacancy exists.

6(7)

The fact that there are vacancies in the membership of the board does not affect the validity of any act or thing done by or in the name of the board.

Duties of presiding member and deputy presiding member.

6(8)

The presiding member shall preside at all meetings of the board; but when the office of presiding member is vacant or in the case of illness, absence from the province, or incapacity from any other cause to act, or on the request of the minister or the presiding member, the deputy presiding member shall act as presiding member and while so acting, the deputy presiding member has all the powers and authority and shall discharge all the duties of the presiding member.

Evidence as to signature of presiding member, etc.

6(9)

Any order, direction, or other document whatsoever purporting to be signed by the presiding member or deputy presiding member, as the case may be, shall be admitted as prima facie proof of the contents thereof without any proof of the signature of the presiding member or deputy presiding member, as the case may be, or of the authority of the presiding member or deputy presiding member, as the case may be, to sign it.

Appointment of another person in case of interest.

6(10)

The Lieutenant Governor in Council may, where a member of the board is interested in a matter that is before the board, appoint some disinterested person to act as a member of the board in place of the interested member with respect to that matter only.

Appointment of substitute member.

6(11)

The Lieutenant Governor in Council may appoint a person to act as a member of the board during the sickness, absence or disability of a member.

Appointment of secretary and employees.

6(12)

The secretary of the board and such other permanent officers and employees as may be necessary for carrying on the business of the board, shall be appointed as provided in The Civil Service Act.

Rules of board.

7(1)

Subject to the provisions of this Act and the regulations, the board may make rules governing the practice and procedure and the business of the board.

Rules of evidence.

7(2)

The board is not bound by the technical rules of evidence.

Evidence under oath.

7(3)

Notwithstanding subsection (2), unless the parties to the matter before the board otherwise agree, the board shall receive evidence under oath.

Sitting of and inspection by board.

8

The board may

(a) hold sittings from time to time at such times and places in the province as it may deem expedient;

(b) enter upon and inspect or authorize any member of the board or other person to enter upon and inspect any place, building, works or other property directly or indirectly involved in any matter before the board:

(c) appoint or direct any person to inquire into and report upon any matter before the board.

Form of notice.

9

Unless otherwise provided in this Act, every application authorized to be made under this Act to the board shall be in writing in such form and shall contain such information as may be prescribed by the board.

Duty to keep records.

10

The board shall

(a) keep or cause to be kept a record of all applications and proceedings filed with or heard and determined by the board or a member thereof;

(b) keep or cause to be kept and issue upon request and payment of such fees as may be fixed by the board, certified copies of any order or rule made by the board;

(c) have the custody and care of all records and documents filed with the board.

Deposits with board.

11

Subject to the regulations, all moneys deposited with the board shall be deposited and disbursed in accordance with the rules of the board made under section 7.

General powers of board.

12(1)

The board shall perform the duties and functions, and may exercise the rights imposed upon or granted to it under this Act, or any other Act of the Legislature and it shall discharge, perform and carry out such other duties and functions as may from time to time be assigned to it by the Lieutenant Governor in Council or by the minister.

Powers of board.

12(2)

Without restricting the generality of subsection (1) the board may

(a) administer and enforce the Act and the regulations;

(b) carry out surveys, research programs and obtain statistics for the purposes of the board;

(c) conduct hearings and investigations and determine and prescribe the scope thereof;

(d) require any person to submit to it such returns in such form as it may require;

(e) prohibit or require the doing of any act by any of the parties to an application which is before the board;

(f) provide mediation services upon the request of a party to a dispute concerning surface rights.

Powers of board under Evidence Act.

12(3)

Subject to subsection (4), for the purpose of carrying out its duties and functions, the board has the like protection and powers, and is subject to like requirements, as are conferred on, or required of, commissioners appointed under Part V of The Manitoba Evidence Act.

Application of section 86 of Evidence Act.

12(4)

Section 86 of The Manitoba Evidence Act does not apply to the board.

Liability of members, officers, etc.

13

Members of the board, officers, or employees of the board and persons acting under the instructions of any of them or under the authority of this Act or the regulations, are not personally liable for any loss or damage suffered by any person or corporation by reason of anything in good faith done, caused, permitted or authorized to be done, or omitted to be done, by them, pursuant to, or in exercise of, or supposed exercise of, the powers given by this Act or the regulations.

Reports by one member.

14

The board or the presiding member may authorize a member to report to the board upon any question or matter arising in connection with the business of the board; and that member, where so authorized, has all the powers of the board for the purpose of taking evidence or acquiring the necessary information for the purpose of any investigation and report to the board; and the board may adopt the report as that of the board, or otherwise deal with it in the absolute discretion of the board.

Annual report.

15

The board shall, on or before the last day of June in each year, transmit to the minister a report for the fiscal year ending March 31 of that year, showing briefly

(a) summaries of the operations of the board;

(b) the number and nature of inquiries or investigations made by it;

(c) a summary of all decisions and orders made by it; and

(d) such other matters as the minister may direct.

PART III

RIGHT OF ENTRY

Right of entry, right to land, etc.

16(1)

Unless expressly authorized under an order of the board, no operator has a right to enter upon, use, occupy or take the surface of any land, or has the right to acquire land or any interest therein for any purpose, until the operator has obtained a lease of the rights specified therein granted by the owner and occupant, if any, of the surface of the land.

Form of surface rights lease.

16(2)

The lease referred to in subsection (1) shall be in the form prescribed in the regulations.

Waiting period.

16(3)

A lease shall not be executed by an owner or occupant within three days of the day of delivery of the proposed lease by an operator to the owner or occupant.

No waiver.

16(4)

The provisions of subsection (3) may not be waived by an owner or occupant.

Application to board for surface right.

17

Where surface rights are required by an operator and the operator cannot acquire a lease of the rights, the operator may apply to the board for an order granting the rights applied for.

Board may by order grant rights.

18(1)

The board may by order, subject to the payment of compensation as hereinafter provided, grant to an operator any one or more of the rights applied for by the operator.

Order to specify rights granted.

18(2)

An order made under subsection (1) shall specify the rights granted, the purposes thereof, and the term during which those rights may be enjoyed; and an accurate description of the land or a plan thereof shall be attached to the order for the purpose of clearly determining the area or portion of the land or the interest therein with respect to which the rights are granted.

Granting of rights on adjacent or other lands.

19

The board may by order, subject to the payment of compensation as hereinafter provided, grant to the operator any one or more rights with respect to adjacent or other land as in the opinion of the board is necessary to permit operations to be carried on and to give the operator access to and egress from his operations.

Compensation to be paid by operator.

20

Every operator shall pay compensation for the rights acquired by him.

Operator to file agreement with board.

21(1)

Every lease or agreement entered into after the coming into force of this Act between an operator and an owner or between an operator and the occupant, if any, with respect to any surface right shall be in writing and a copy of the lease or agreement shall be filed by the operator with the board within 30 days after the date of execution thereof.

Leases or agreements available for inspection.

21(2)

Every lease or agreement filed under subsection (1) shall be available for inspection by any person at the office of the board.

Board may determine compensation.

22

Where the operator and the owner or the operator and the occupant are unable to agree upon the compensation, the compensation shall be determined by the board.

Application to board for hearing.

23(1)

Where an operator and the owner or an operator and the occupant, as the case may be, are unable to agree upon the surface rights that may be required by the operator, or upon the compensation to be paid therefor, or where any dispute arises between them as to the interpretation of a lease or agreement or as to the exercise of any right or the performance of any obligation under a lease or agreement or this Act, or where an application may be made to the board pursuant to any other provision of this Act, the operator, owner or occupant, as the case may be, may serve a notice of intention to have those matters determined by the board, upon each of the parties involved and shall forthwith file a copy of the notice with the board.

Contents of notice.

23(2)

The notice mentioned in subsection (1) shall include

(a) a description and plan or sketch of the land showing the location of the affected area and showing facilities of the operator in place or proposed;

(b) a statement as to the nature of the dispute, if any;

(c) the nature of the order sought;

(d) an address for service where the applicant may be served with any notice required to be served under this Act.

Deemed submission to board for hearing.

23(3)

The filing of a notice mentioned in subsection (1) with proof of service thereof on the operator, owner or occupant, as the case may be, shall be deemed to be a submission to the board by the person filing, to hear and determine the matters in dispute set forth in the notice.

Service of notice.

24(1)

A notice to be served pursuant to this Act may be served personally or by registered or certified mail sent to the last known address of the person to be served.

Effective date of service.

24(2)

A notice sent by registered or certified mail shall be deemed to have been served on the day of the date of the receipt of the postmaster for the envelope containing the notice.

Notice of hearing.

25(1)

The board shall fix a date and place for the hearing of the matters in dispute and shall serve the operator, owner, and occupant if any, with written notice thereof not less than 14 days before the date so fixed.

Board to view site.

25(2)

The board may view the land in question prior to the holding of any hearing, and the parties may attend the viewing together with the board.

Notice of viewing.

25(3)

The board shall give three days notice of the date and time of viewing to the parties.

Powers of board following hearing.

25(4)

On the date fixed under subsection (1) for a hearing, the parties involved are entitled to appear before the board and to be represented by counsel; and the board may, after consideration of all the evidence adduced before it at the hearing and such other matter as it considers relevant, issue an order

(a) granting part or all of the order applied for;

(b) refusing part or all of the order applied for;

(c) fixing the compensation to be paid by an operator;

(d) awarding interest at a rate established by the regulations;

(e) where rights are granted, specifying those rights in detail together with a full description or a plan of the land involved in the order; or

(f) prescribing the terms and conditions that go with the order.

Restriction upon scope of order.

25(5)

An order granting surface rights shall not grant any rights other than rights which the operator may reasonably propose to utilize within the six month period next following the date of the order.

Board may defer determination.

25(6)

Notwithstanding subsection (4), the board may defer to a later date the determination of the compensation to be paid by the operator and any other matter that the board considers advisable.

Decision within 30 days.

25(7)

Unless the parties to a hearing otherwise agree, the board shall render a decision upon any application within 30 days of completion of the hearing.

Determination of compensation.

26(1)

For the purpose of determining the compensation to be paid for surface rights acquired by an operator, the board shall consider the following matters:

(a) the value of the land having regard to its present use;

(b) loss of use of the land or of an interest therein;

(c) the area of land that is or may be permanently or temporarily damaged by the operations of the operator;

(d) increased costs to the owner and occupant, if any, by reason of the works and operations of the operator;

(e) the adverse effect of the right of entry on the remaining land by reason of severance;

(f) payment or allowance for nuisance, inconvenience, disturbance or noise, to the owner and occupant, if any, or to the remaining land, that might be caused by, arise from or is likely to arise from or in connection with the operations of the operator, and damage, if any, to any adjoining land of the owner, and including damage to or loss of crop, pasture, fence or livestock and like or similar matters:

(g) the nature, type and quantity of any machinery equipment and apparatus to be established, installed or operated by the operator;

(h) where applicable in the opinion of the board, interest at a rate prescribed by the regulations;

(i) any other matter peculiar to each case, including the cumulative effect, if any, of the surface rights previously acquired by the operator or by any other operators under a lease, agreement or right of entry existing at the time of acquisition of the surface rights with respect to the lands; and

(j) such other factors as the board deems proper, relevant and applicable.

Costs of hearing.

26(2)

The board may award the costs of and incidental to, participation in any of its proceedings, including awards in advance of proceedings where appropriate, to persons

(a) who effectively represent an interest which contributed to or could reasonably be expected to contribute substantially to a fair disposition of the proceeding, taking into account the need for representation of a fair balance of interests;

(b) who represent an economic interest which is small when applied to individual persons in comparison to the costs of effective participation in the proceeding, or who do not have sufficient resources available to participate effectively in the proceeding without undue curtailment of that person's other activities in the absence of a costs award; or

(c) who are permitted to participate in the board's proceedings by law, board practice or the exercise of the board's discretion.

Costs borne by operator.

26(3)

The costs of and incidental to any proceedings of the board shall, subject to the regulations, be in the discretion of the board.

Rules and regulations.

26(4)

The board may make rules and regulations for the purpose of better carrying this section into effect.

Interim order.

27(1)

Notwithstanding anything in this Act or in the rules of practice and procedure of the board, an operator may at any time after the filing of a notice with the board under section 23 and after having given to the owner, and occupant if any, seven clear days notice in advance thereof, apply to the board for an interim order granting surface rights.

Undue hardship.

27(2)

The board shall not grant such interim order unless it is satisfied that undue hardship would result to the operator if the order is not made, and that the undue hardship outweighs any prejudice to the interests of the owner, or occupant if any.

Terms and conditions of interim order.

27(3)

An interim order may be made subject to such terms and conditions and to the provision of such security for the protection of the interests of the owner or occupant, if any, as the board may prescribe.

No duplicate compensation.

28

Where the board finds that the owner and also an occupant are entitled to compensation, the board shall determine the compensation to be paid to both the owner and the occupant but not so as to require the operator to pay duplicate compensation with respect to any element of compensation to be determined by it.

Application for variation of order.

29

Subject to section 31, an owner, occupant or operator who is affected by an order of the board may, with leave of the board obtained at any time, apply to the board for a variation of the order.

Application for change in compensation after lease.

30

An owner, occupant or operator who has entered into, or who is affected by, a lease may apply to the board for a variation of the compensation payable for the surface rights.

When applications for change not to be made.

31

An application under secton 29 or 30 for a variation of compensation may not be made within the three year period next following the date of the determination of the compensation sought to be varied.

Board to determine compensation.

32

Upon receipt of an application under section 29 or 30 the board shall determine the compensation to be paid in accordance with the applicable provisions of section 26.

Variation order to benefit current owner.

33

The amount of any increase in compensation ordered by the board shall accrue only to the benefit of the owner and occupant, if any, at the time of the making of the order.

Unauthorized Acts.

34

No operator shall do any act or thing upon the land unless the owner or occupant, if any, has expressly agreed thereto in writing with the operator, or unless the operator obtains an order from the board for the purpose.

Grant of interest in land.

35(1)

Every lease and every order of the board, with respect to the acquisition by the operator of surface rights shall be deemed to grant to the operator the right to enter upon the affected land at any time for the purposes of repairing, maintaining, replacing or inspecting the works of the operator.

Compensation for exercise of rights.

35(2)

The operator shall pay compensation to the owner or occupant, if any, for all damage suffered by the owner or occupant as a result of the exercise by the operator of any of the rights referred to in subsection (1).

Board may determine compensation.

35(3)

Where the operator and the owner, or the operator and the occupant, are unable to agree upon the compensation payable under this section, the compensation shall be determined by the board.

PART IV

ABANDONMENT

Abandonment or surrender or rights.

36

Subject to the other provisions of this Act, an operator may abandon or surrender part or all of any surface rights acquired by the operator.

Notice.

37(1)

Where an operator proposes to abandon or surrender part or all of any surface rights, the operator shall, at least six months prior to the date on which the abandonment or surrender is to be effective, serve a notice of intention on the owner and occupant, if any stating the date on which the abandonment or surrender is to be effective.

Filing with board.

37(2)

An operator who serves a notice under subsection (1) shall, within 60 days after the service, file with the board a copy of the notice and proof of service of the notice.

Deposit upon notice of abandonment.

37(3)

Upon notice of termination or abandonment having been given to an owner or occupant by an operator, the operator shall forthwith deposit with the board such security as may be fixed by the regulations as assurance of due and proper completion of abandonment and restoration in accordance with this Act and the provisions of The Mines Act.

Restoration.

38

An operator proposing to abandon or surrender any surface right shall restore the surface of the land involved as nearly as possible to its original condition.

Effective date of abandonment or surrender.

39

Where, after the date set out in the notice served pursuant to section 37 as the effective date of the abandonment or surrender, an operator

(a) establishes to the satisfaction of the board that it has restored the surface of the land involved to the satisfaction of the owner an occupant, if any;

(b) secures an order of the board under subsection 41(1); or

(c) secures a certificate from the board under subsection 41(2);

the surface right with respect to which the notice was served is abandoned or surrendered on the date that the restoration was completed, or the order or certificate secured, as the case may be.

Application where owner dissatisfied.

40(1)

Where an owner or occupant, if any, who is served with a notice under section 37 is dissatisfied with the state or condition of restoration of land and the operator is not relieved of his obligation under section 39 to restore the surface of the land, the operator or the owner and occupant, if any, may within 10 years from the date on which the notice under section 37 was served, apply to the board for a determination of the matter.

Hearing before the board.

40(2)

Upon receipt of an application under subsection (1), the board may inspect or cause to be inspected the land involved and where the board is satisfied that there is reasonable cause for complaint, it may, after service of a notice on the operator and the owner an occupant, if any, hear and determine the complaint.

Contents of order.

40(3)

The board after completion of a hearing under subsection (2) may do one or more of the following things:

(a) order the operator to restore the surface of the land in the manner set forth in the order;

(b) authorize the owner and occupant, if any, to restore the surface of the land in the manner set forth in the order and, where the board so orders, the operator shall pay to the owner and occupant, if any, as the case may be, the cost of the restoration; and

(c) order the operator to pay a sum of money to the owner and occupant, if any, in lieu of restoration.

Power of board where operator satisfies obligations.

41(1)

Where

(a) after inspecting the land or hearing an application made under section 40 with respect to the land, the board is satisfied that the operator has restored the surface of the land as nearly as possible to its original state;

(b) the operator satisfies the board that it has complied with all orders of the board and the provisions of The Mines Act with respect to the surface rights and the land;

the board may order that

(c) the operator is relieved of his obligation under section 38 with respect to the land involved; and

(d) the surface right with respect to which the notice of intention was served by the operator is abandoned or surrendered.

Where no application under section 40.

41(2)

Where the board does not receive an application from an owner and occupant, if any, under section 40 within three years from the date specified in a notice given pursuant to section 37 as the effective date to the effective date of the abandonment or surrender of the right, the board may, upon the request of the operator, and upon 30 days notice to the owner and occupant, if any, issues a certificate that the obligation of the operator under this Part to restore the surface of the land used for the right is terminated.

Termination of compensation.

41(3)

Where a surface right is abandoned or surrendered in accordance with this Part, the obligation of the operator with respect to compensation ordered or agreed to be paid for the right under this Act terminates on the date on which the abandonment or surrender is effective pursuant to section 39, and not before, and the deposit made pursuant to subsection 37(3) shall thereupon be returned to the operator.

Removal of caveats.

42

Notwithstanding any provision of this Part, the obligation of the operator with respect to compensation ordered or agreed to be paid shall continue unabated until all caveats or other instruments registered by the operator against the land under The Real Property Act and The Registry Act with respect to the rights abandoned or surrendered have been discharged, released or quit claimed, as the case may be.

PART V

LIABILITY FOR TORTIOUS ACTS

Definition.

43

In this Part "tortious act" means a wrongful, injurious or illegal act that results in

(a) loss or damage to the land of an owner, or occupant, as the case may be, that is not situated within the surface rights acquired or to be acquired by an operator; and

(b) any other loss or damage suffered by the owner or occupant arising out of that act.

Liability for certain tortious acts.

44(1)

Every operator who has acquired or is about to acquire any surface rights is primarily liable to the owner or to the occupant, as the case may be, of the land for all tortious acts committed by him and

(a) by a person in the course of the employment of that person with the operator; or

(b) by a servant or agent of the operator acting under the authority of the operator; or

(c) by any other person who performed work or provided services to or for the benefit of the operator pursuant to a contract entered into with the operator or with any other person with respect to the operations or any of them for which the surface rights were or are about to be acquired.

Operator liable notwithstanding assignment of rights.

44(2)

The operator is liable to the owner or occupant, as the case may be, for any tortious act committed as provided in subsection (1) notwithstanding that the operator has assigned or transferred the surface rights to any other person.

Notice of loss or damage to operator.

45

The owner or occupant, as the case may be, shall within 90 days after the discovery by the owner or operator of any loss or damage sustained by the owner or operator notify the board in writing of the loss or damage and of the amount of compensation or damages claimed by the owner or operator and the board shall forthwith send a copy of the notice to the operator.

Determination of compensation where no agreement.

46(1)

Where an owner or occupant, as the case may be, and an operator are unable to agree upon the amount of loss or damage sustained by the owner or occupant as a result of a tortious act for which the operator is liable, the owner, occupant or operator may apply to the board to determine the amount thereof; and upon receipt of the application the board shall hear and determine the merits of the claim and the amount of compensation or damages, if any, to be paid by the operator to the owner or occupant.

Application of section 25 to hearing.

46(2)

Section 25 applies, with such modifications as the circumstances require, in respect of a hearing by the board under subsection (1).

Limitation on application under subsection (1).

46(3)

Except with leave of the board, no application shall be made to the board under subsection (1) after six months from the date of the service of the notice mentioned in section 45.

Claim barred where application is late.

46(4)

Notwithstanding the provisions of any other Act of the Legislature but subject to subsection (3), if no application is made by the owner or occupant under subsection (1) within the time limited by subsection (3) the claim of the owner or occupant against the operator for the loss or damage resulting from the tortious act for which the operator is liable under this Act is barred.

Prima facie evidence of tortious act.

47

In any proceeding taken under this Part or in any action at law to recover damages or compensation for loss or damage resulting from a tortious act, proof by the owner or occupant, that the operator or his assignee is carrying on or is about to carry on operations with respect to the lands under this Act and evidence of the tortious act complained of is prima facie evidence of the liability of the operator for the tortious act.

PART VI

APPEAL

Appeal to Court of Appeal.

48(1)

Any person affected by an order of the board other than an order conferring a right of entry or awarding compensation may

(a) within 30 days after the date on which the order is made, or such further time, not exceeding 30 days, as a judge of the Court of Appeal may allow; and

(b) with leave of judge of the Court of Appeal;

appeal to the Court of Appeal against the order on a question of law or on a question concerning the jurisdiction of the board.

Appeal to Court of Queen's Bench.

48(2)

Any person affected by an order conferring a right of entry or awarding compensation in excess of an amount fixed by the regulations may appeal to the Court of Queen's Bench, and this Part applies to such appeal, with such modifications as the circumstances require.

Leave to appeal.

49(1)

The appellant shall, within the period mentioned in clause 48(l)(a), serve notice of the application for leave to appeal on the board and the board shall, forthwith upon receipt of the notice, transmit to the registrar of the Court of Appeal a copy of the order appealed from, duly certified by the presiding member or secretary of the board, together with all documents filed with the board in connection with the subject matter of the appeal.

Order deemed to be notice of appeal.

49(2)

An order granting leave to appeal shall

(a) for the purposes of any appeal under subsection 48(1) be deemed to be a notice of appeal;

(b) state the grounds of the appeal; and

(c) be served upon the respondent or his solicitor within 15 days from the date of the order giving leave to appeal.

Application of Court of Appeal rules.

49(3)

Subject to the provisions of this section and subsection 48(1) and section 50, the rules of the Court of Appeal apply, with such modifications as the circumstances require, to an appeal under subsection 48(1) in the same manner and to the same extent as an appeal from a judge of the Court of Queen's Bench; but no appeal books shall be required.

Stay of proceedings.

50

All proceedings under an order, decision, determination or award appealed from pursuant to subsection 48(1) shall be stayed upon the filing of the application for leave to appeal with the registrar of the Court of Appeal until the application has been disposed of; and if leave to appeal is granted the stay shall continue until the appeal has been disposed of.

Applications for variation of Mining Board order.

51

Every application by an owner or operator for a variation of compensation payable under the terms of an award made by The Mining Board under The Mines Act, shall be deemed to be an application under this Act and shall be heard and determined by the board.

PART VII

GENERAL

Where owner or occupant cannot be found.

52(1)

Where upon application to the board it is proved to the satisfaction of the board that, because the owner or occupant of the land in respect of which the surface rights are required is unascertainable or is a person whose whereabouts is unknown, or because of other special circumstances, the operator is unable to negotiate a lease for the required surface rights without unduly delaying the operations of the operator, the board may by order grant permission to the operator to enter upon the land and use any portion thereof required by the operator for any of the purposes mentioned in this Act, if the operator deposits with the board a sum of money fixed by the board.

Application to determine compensation.

52(2)

Where the operator who is granted a right of entry pursuant to subsection (1) is, in respect of the surface rights granted by the board to the operator, unable to negotiate a lease within six months from the date of the order of the board granting the right of entry, the operator shall forthwith at the end of the six month period apply to the board for a hearing to determine the compensation for the surface rights.

Retention of deposit.

52(3)

The deposit made by the operator pursuant to subsection (1) shall be retained by the board until a lease has been executed by the operator, owner and occupant, if any, or until the board has, after a hearing under subsection (2), determined the compensation for the surface rights acquired by the operator.

Application to mineral rights.

52(4)

This section and section 53 apply, with such modifications as the circumstances require, where an operator is desirous of acquiring mineral rights and the owner of those rights is unascertainable, or the whereabouts of the owner is unknown, or because of special circumstances the operator is unable to acquire those mineral rights.

Compensation payment.

53(1)

Where the board, after a hearing under section 52, fixes the compensation and orders the payment thereof, the board shall charge the compensation payable against the deposit made under subsection 52(1).

Disposition of deposit.

53(2)

Where the amount deposited by an operator under subsection 52(1) exceeds the amount of compensation payable as fixed by the board, the board shall forthwith return the excess to the operator; but where the amount of compensation fixed by the board exceeds the amount deposited by the operator, the operator shall forthwith pay over to the board the amount by which the compensation exceeds the deposit.

Deposit of money.

53(3)

All moneys received by the board from an operator under this section and section 52 shall be received, held and disbursed by the board in the manner prescribed by the regulations.

Rehearing of application re. compensation only.

54

Notwithstanding anything contained in section 52 or 53, the owner or occupant, if any, or the legal personal representative of the owner or occupant may, within six months after the making of an order made under section 52 comes to attention of any one of them, either accept the compensation awarded or apply to the board for a rehearing for the application regarding compensation only; and upon receipt of the application the board shall fix a date for a rehearing, give notice thereof to the parties concerned and make such order as it deems just and proper in the circumstances.

Operator's responsibility to cut down weeds.

55(1)

Unless the operator and the owner and occupant, if any, otherwise agree, every operator shall cut down or otherwise control all weeds growing on the land on which the operations of the operator are being carried on and the operator shall cut down or root out and destroy the weeds each year before they have matured to seed.

Failure of operator to cut down weeds.

55(2)

Where an operator fails or neglects to comply with subsection (1), the owner or occupant may upon seven days notice to the operator, carry out the requirements of that subsection and for that purpose may enter upon the land on which the operations of the operator are being carried on, or the owner or occupant may apply to the board for an order requiring the operator to comply with that subsection.

Board may order operator to cut down weeds.

55(3)

The board may by order direct the operator to cut down or root out and destroy the weeds within a time fixed by the order, or, if the owner or occupant has done so, the board may award the owner or occupant compensation therefor and the operator shall pay such compensation forthwith.

Limitation on time of application to cut down weeds.

55(4)

No application under subsection (2) shall be heard if it is made after the expiration of three months after the owner or occupant first became entitled in the opinion of the board to make the application.

Apportionment of compensation among operators.

55(5)

Where an application is made under subsection (2) and it appears to the board that more than one operator may be liable, the board may adjourn the hearing and direct notice thereof to be served on all operators that may be liable and may by order determine and apportion the compensation to be paid by each of the operators.

Topsoil.

56

The operator shall remove, preserve and replace all top soil affected by its operations in the manner prescribed by the regulations.

Termination of right of entry.

57(1)

Where at any time after the expiration of three months from the date of an order granting to an operator a right of entry upon land, the operator has not commenced to exercise the right granted to the operator or the operator has ceased to use the land or interest therein for the purposes granted by the order, the owner or occupant may apply to the board for the termination of the right.

Board to fix date of hearing.

57(2)

Upon receipt of an application under subsection (1) the board shall fix a date for a hearing of the application and shall serve notice thereof on all parties concerned in such manner as the board deems proper.

Order terminating right of entry.

57(3)

The board may, after the hearing pursuant to subsection (2), make an order terminating the right of entry on the land or any part thereof.

Consent of operator.

57(4)

Notwithstanding subsection (2), where the operator consents to the making of an order, the board may make an order terminating the right of entry without conducting a hearing.

Enforcement of board order.

58

An order of the board with respect to the right to enter, use, occupy or take land therein described or an interest in land shall, if requested by one of the parties involved, be enforced by the sheriff or his bailiff, or any other person under the written authority and direction of the sheriff in the same manner as a writ of possession issued upon an order of a court or judge.

Filing and enforcement of order.

59(1)

An order of the board, or a copy thereof certified to be a true copy by the presiding member or a member of the board, requiring an owner, occupant or operator to do any act or thing or to pay any compensation or damages to the board or to the owner or occupant, as the case may be, may be filed in the Court of Queen's Bench.

Order as judgment of court.

59(2)

Upon the filing of an order under subsection (1) it becomes and is enforceable as, a judgment of that court.

Order of board need not show board's jurisdiction.

60

An order of the board need not show upon its face that any proceedings were taken or that any notice was served or that any circumstances existed that were necessary to give the board jurisdiction to make the order.

Assignment of order.

61

An order of the board or court is assignable by filing a certified copy of the assignment with the board and serving notice of the assignment of the other parties named in the order or in any previous assignment of the order.

Service of copy of order.

62

The board shall serve a copy of every order made by it, upon the operator, owner and occupant, if any, within seven days of its issue.

Orders and agreements run with land.

63

Orders of the board and agreements respecting surface rights entered into between an operator and an owner or occupant shall run with the land and shall enure to the benefit of and be binding upon the successors in title or interest of the owner or occupant, as the case may be.

Filing of caveat

64(1)

Where an order of the board affects land, registered under The Real Property Act, the operator may file with the registrar of the appropriate land titles office a caveat with a copy of the order; and upon receipt thereof the registrar shall make an entry of the caveat on the certificate of title to the land affected.

Address for service to be shown on caveat.

64(2)

The operator shall, on the caveat endorse his address for service of notices before filing the caveat with the registrar.

Registering and vacating order under Registry Act.

64(3)

Where the land affected by an order of the board is under The Registry Act the operator may register a certified copy of the order with the registrar of the appropriate land titles office; and where the rights of the operator under the order have ceased or have been abandoned or cancelled by the operator and the operator neglects or refuses to provide a release or quit claim of his interest under the order, the owner of the land may apply to a judge of the court of Queen's Bench for an order to vacate the registration of the order of the board.

Costs of application.

64(4)

The costs of an application made pursuant to subsection (3) shall be borne by the operator, and shall be payable by the operator to the owner forthwith upon demand.

No fees for certificates and documents.

65

Every registrar of land titles and every department of the government of the province shall furnish the board, without charge, any certificate or certified copies of documents that the board may require.

Search of records without charge.

66

The board or a person duly authorized in writing by the presiding member of the board may, for the purpose of carrying out the duties of the board, search the public record of a land titles or registry office without charge.

Penalty for failure to file agreement.

67

Any operator that fails to file an agreement as required by section 21 or subsection 37(2), shall pay to the board a penalty in an amount fixed by the regulations for each day during which the operator fails to file the agreement; and any amount payable by the operator for its failure under this section is a debt owed by the operator to the board recoverable in a court of competent jurisdiction.

Regulations.

68

For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation made under and in accordance with the authority granted by this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations

(a) providing rules for the application of this Act to the Crown and to lessees and permittees from the Crown;

(b) prescribing forms for the purposes of this Act;

(c) prescribing amounts for the purposes of subsection 48(2) and section 67;

(d) prescribing elements of compensation to be considered by the board in addition to those mentioned in subsection 26(1), including formula and criteria;

(e) prescribing the intervals of and manner of payment of compensation;

(f) prescribing the amount of and the terms and conditions attaching to cash deposits, security deposits and other deposits of money required to be made with the board;

(g) prescribing forms of lease and renewals thereof;

(h) prescribing the form and content of reports and returns which shall be made to the board by operators;

(i) requiring operators to advise the board of all chemicals utilized in their operations;

(j) prescribing such elements of costs that may be allowed for the purposes of subsections 26(2) and (3);

(k) providing for the amount and recovery of the penalty to be borne by an operator who enters into a form of lease other than in the form prescribed in the regulations;

(l) providing for transitional provisions governing leases in force and effect upon the coming into force of this Act;

(m) defining any word or term not defined for the purpose of the administration of this Act or the regulations;

(n) respecting the granting of the extension of time or the reduction of time for the doing of anything or the filing of any notice required under this Act or the regulations;

(o) respecting rules for the calculation of time either in specified cases or generally;

(p) respecting the disbursement of moneys received by the board pursuant to the Act or the regulations;

(q) respecting such other matter as may be necessary for the purpose of carrying out the provisions of this Act or the regulations.