LAND AND PROPERTY RIGHTS TRIBUNAL
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Citation: |
Stevens v. Ember Resources Inc, 2025 ABLPRT 159 |
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Date: |
2025-03-26 |
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File No: |
BR2025.0034 (Ref File No. RC2019.2613) |
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Order No: |
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Municipality |
County of Stettler No. 6 |
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In the matter of a proceeding commenced under section 29 of the Surface Rights Act, RSA |
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2000, c S-24 (the “Act”) |
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And in the matter of land in the Province of Alberta within the: |
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NW 34-37-21 W4M as described in Certificate of Title No. 232 361 447 (the “Land”), particularly the area granted for a well site in LSD 13 by Alberta Energy Regulator Licence Nos. 0294489, 0306140 and 0363242 (the “Licence”), collectively (the “Site”). |
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Between: |
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Ember Resources Inc.
-and-
Trident Exploration (Alberta) Corp.
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Operators |
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- and - |
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Roma Stevens, Owner, - and -
Cheryl Fisher,
Applicant. |
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Before: |
Susan McRory (“the Panel”) |
ORDER PURSUANT TO
SECTION 29 OF THE ACT
Order LPRT903937/2024 is amended to read as follows:
The Tribunal directs the Minister to pay out of the General Revenue Fund the total sum of FOUR HUNDRED SEVENTY FOUR and 16/100 DOLLARS ($474.16) to Roma Stevens of Erskine in the Province of Alberta, comprised of compensation that became due in the year 2019.
DECISION AND REASONS
SUMMARY
[1] This is a Tribunal-initiated review of Order LPRT903937/2024 that was issued on August 21, 2024.
The original panel was dealing with an application under s. 36 of the Act seeking compensation for a missed payment in 2019 based on a surface lease dated October 4, 2003. There are three wells on the site.
According to records provided by the Alberta Energy Regulator, the current Licensee and 100% working interest participant for all three wells is Ember Resources Inc. (EMBER). The status of the license for wells 0306140 and 0363242 is “Issued” and for well 0294489 is “Amended.” These are active wells.
Trident Exploration (Alberta) Corp. (TRIDENT) was the Licensee for the period October 10, 2018 to December 30, 2019.
[2] The Tribunal issued a Notice and Demand for Payment to EMBER on July 16, 2024 requiring a response within 30 days. There was no reply.
No notice was issued to TRIDENT as it is insolvent.
[3] On August 21, 2024, the original panel directed that the Minister pay Barry Dale Stevens and Roma Stevens $6,410.00 for compensation due in 2019. At the time that the original order was issued, the Certificate of Title on the Tribunal’s file named Roma Stevens as the sole the owner of the land as of November 24, 2023.
In error, the original panel relied upon the cancelled Historical Certificate of Title which had named Barry Dale Stevens and Roma Stevens as the owners of the Land.
On the basis of Order LPRT903937/2024, the Minister issued a cheque to Barry Dale Stevens and Roma Stevens.
All parities were provided with notice that the Direction to Pay had been issued.
[4] On August 24, 2024 EMBER contacted the Tribunal to indicate that it had made a payment of $5,935.84 to Barry Dale Stevens and Roma Stevens based on what it described as a “gratuitous, pro-rated payment”. EMBER suggested that as it had acquired the site on November 1, 2019, TRIDENT should be held responsible for the balance.
EMBER made no request for reconsideration of the original decision. In the ordinary course, this would be a matter for Crown Debt Collection, not the Tribunal.
The landowner did not advise the Tribunal that payment had been made.
[5] On January 12, 2025, Cheryl Fisher contacted the Tribunal indicating that she was acting on behalf of her mother Roma Stevens. She indicated that Barry Stevens had passed away and that her mother “needs the cheque to be issued in her name alone”. Ms. Fisher made no mention of the payment by EMBER nor any suggestion that there was a difficulty in cashing the cheque from EMBER.
[6] On February 10, 2025 Ms. Fisher contacted the Tribunal again to request that a replacement cheque be issued in the name of Roma Stevens alone indicating that the bank would not cash the cheque that had been issued. Again, there was no reference to the payment by EMBER.
[7] On March 4, 2025, the Finance Department for Environmental and Protected Areas reported that Ms. Fisher had returned the cheque to them.
[8] Section 1 (i)(i) of the Act defines “owner” as “the person in whose name a certificate of title to land is issued under the Land Titles Act.” Barry Dale Stevens was not a person named on the certificate of title.
ISSUES
1. Should the Tribunal initiate its own review of Order LPRT903937/2024?
2. Should the Tribunal request submissions from the parties?
3. Should the Tribunal amend, rescind or replace Order LPRT903937/2024 or order a rehearing?
4. Should the Tribunal suspend and terminate the Operator’s rights?
DECISION
1. The Tribunal will initiate its own review of Order LPRT903937/2024.
2. The Tribunal will not request submissions from the parties.
3. The Tribunal will amend Order LPRT903937/2024.
4. The Tribunal will not issue orders of suspension and termination.
ANALYSIS
Tribunal-Initiated Review
[9] Section 29 of the Surface Rights Act gives the Tribunal the power to review orders and decisions. The Act also gives the Tribunal the power to set its own rules for practice and procedure (Section 8(2)(b)). Rule 39 establishes the process by which reviews under section 29 are processed.
For requests submitted by the parties, reconsideration is a two-step process. An applicant must first establish the pre-requisites for reconsideration on a balance of probabilities. (Canadian Natural Resources Limited v. Main 2020 ABSRB 735). Rule 37(3) provides as follows:
The Tribunal may only decide to review a decision or order if one of the following requirements for review are met:
(a) the decision or order shows an obvious and important error of law or jurisdiction; or
(b) the decision or order shows an important error of fact, or an error of mixed fact and law, in the decision or order that affects the decision or order; or
(c) the decision or order was based on a process that was obviously unfair or unjust;
(d) the decision or order is inconsistent with an earlier Board decision or order, binding judicial authority, or provision of the legislation, regulation or rules; or
(e) there was evidence at the time of the hearing that was not presented because it was unavailable to the party asking for review, and which is likely to make a substantial difference to the outcome of the decision or order.
However, the Tribunal also has the power to initiate its own review. For reviews initiated by the Tribunal, the Tribunal may set its own processes. The Tribunal is not strictly required to consider the pre-requisites for review that parties must establish in terms of errors of fact, law or process, though those factors are still important to a review brought by the Tribunal itself.
In this case, there was an error of law: the certificate of title names Roma Stevens as the sole owner and the person entitled to payment. This error justifies a review by the Tribunal.
While the late submissions provided by EMBER would not be normally be considered, given the mistake in the original order and the delay in processing this application, this Panel will take into consideration the partial payment made.
Submissions
[10] For requests for review filed by the parties, Rule 37(5) requires that the parties be given an opportunity to provide submissions. However, Rule 6(3) allows the Tribunal to “waive or vary a requirement of these rules at its discretion.” For Tribunal-initiated reviews, the Panel can set its own procedures which may or may not include a request for submissions.
[11] This Panel has determined that there is an error in the original decision and on that basis will amend the order. As the amendment accomplishes what was requested by the Landowner, further submissions are not required from the landowner.
[12] With respect to EMBER, while there is no application before the Tribunal by EMBER seeking a review, the commentary suggests that EMBER is of the view that it is not responsible for debts that were incurred prior to its acquisition of the site and that liability as between operators is not joint.
EMBER is a sophisticated operator. EMBER is aware of the recent direction from the Court of King’s Bench with respect to the liability of subsequent purchasers in the landmark decision Canadian Natural Resources Limited v. Trident Exploration (Alberta) Corp., Kent Patrick Holowath et al Docket 2301 08556. In the decisions that followed, the Tribunal has held that a subsequent purchaser is not protected when the purchase is under the standard terms of a Vesting Order. EMBER has not provided a copy of the Vesting Order to suggest otherwise. Please refer to Holowath v. Trident Exploration (Alberta) Corp. 2024 ABLPRT 900301 dated February 1, 2024.
EMBER is also aware of the body of case law that finds that liability as between operators is joint.
In Dobish v Terra Energy Corp, 2019 ABSRB 737 the panel held at para 14:
[n]othing in s. 36 of the Act limits the liability of any one of the operators, including s. 36(4) and working interest participants. If the Act meant to limit the liability of a working interest participant to the percentage of its working interest, it would have explicitly said so. Rather, s. 36(4) of the Act instructs the Board to demand “full payment” from an operator if evidence satisfactorily proves non-payment.
With multiple definitions of an “operator” in the Act, along with the requirement for an approval from the regulator, there can be more than one operator concurrently responsible for the Site.
The suggestion that the payment was “gratuitous” is to ignore the case law.
As there is no request for review, as the payment is five years late and the case law does not support the position taken by EMBER, this Panel will not ask for further submissions from EMBER.
[13] TRIDENT is insolvent and therefore not capable of responding.
[14] Given the long delay in processing this application, this Panel waives the requirement for submissions.
Options
[15] The legislation provides the options to confirm, rescind, amend or replace any Tribunal decision, or to order a rehearing.
It is clear that the original order is incorrect in naming Barry Dale Stevens as an owner. It is also clear that a partial payment, although many years late, has been made. The original order will be amended to name Roma Stevens alone and to reflect the partial payment made.
The practical problem of what to do with the cheque has already been solved. Ms. Fisher has already returned the cheque to Finance so that issuing a new cheque in the name of Roma Stevens will not result in overpayment.
Termination
[16] The Tribunal may suspend and terminate the access rights of an Operator when appropriate to do so. There are three active wells on the site, and EMBER is an active corporation. An operator should not be allowed to profit from activities on the site without making payment to the landowner.
However, there are several other factors to consider:
• the claim dates back to 2019,
• the original panel did not consider making a termination order,
• it was the Tribunal that identified the wrong parties,
• it would be appear that payment has been made since 2019,
• the partial payment that was made represents almost a full year’s entitlement, and
• the owner did not notify the Tribunal that payment had been received.
So as not to delay the matter further, this Panel will not issue orders of suspension and termination.
Dated at the City of Edmonton in the Province of Alberta this 26th day of March, 2025.
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LAND AND PROPERTY RIGHTS TRIBUNAL |
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Susan McRory, Chair |
Correction Notice
Land and Property Rights Tribunal Order No. LPRT2025/SR0159 was corrected on October 30, 2025 in accordance with Surface Rights Rule 36(2).
Description of the correction:
Reference file number corrected
____________________________
Tribunal Chair
Susan McRory
LAND AND PROPERTY RIGHTS TRIBUNAL
|
Citation: |
Stevens v. Ember Resources Inc, 2025 ABLPRT 159 |
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|
|
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Date: |
2025-03-26 |
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File No: |
BR2025.0034 (RCR2024.0320) |
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Order No: |
LPRT2025/SR0159 |
|
Municipality |
County of Stettler No. 6 |
|
In the matter of a proceeding commenced under section 29 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: |
|
|
NW 34-37-21 W4M as described in Certificate of Title No. 232 361 447 (the “Land”), particularly the area granted for a well site in LSD 13 by Alberta Energy Regulator Licence Nos. 0294489, 0306140 and 0363242 (the “Licence”), collectively (the “Site”). |
|
|
|
|
|
Between: |
|
|
Ember Resources Inc.
-and-
Trident Exploration (Alberta) Corp.
|
|
|
Operators |
|
|
- and - |
|
|
Roma Stevens, Owner, - and -
Cheryl Fisher,
Applicant. |
|
|
|
|
|
Before: |
Susan McRory (“the Panel”) |
ORDER PURSUANT TO
SECTION 29 OF THE ACT
Order LPRT903937/2024 is amended to read as follows:
The Tribunal directs the Minister to pay out of the General Revenue Fund the total sum of FOUR HUNDRED SEVENTY FOUR and 16/100 DOLLARS ($474.16) to Roma Stevens of Erskine in the Province of Alberta, comprised of compensation that became due in the year 2019.
DECISION AND REASONS
SUMMARY
[1] This is a Tribunal-initiated review of Order LPRT903937/2024 that was issued on August 21, 2024.
The original panel was dealing with an application under s. 36 of the Act seeking compensation for a missed payment in 2019 based on a surface lease dated October 4, 2003. There are three wells on the site.
According to records provided by the Alberta Energy Regulator, the current Licensee and 100% working interest participant for all three wells is Ember Resources Inc. (EMBER). The status of the license for wells 0306140 and 0363242 is “Issued” and for well 0294489 is “Amended.” These are active wells.
Trident Exploration (Alberta) Corp. (TRIDENT) was the Licensee for the period October 10, 2018 to December 30, 2019.
[2] The Tribunal issued a Notice and Demand for Payment to EMBER on July 16, 2024 requiring a response within 30 days. There was no reply.
No notice was issued to TRIDENT as it is insolvent.
[3] On August 21, 2024, the original panel directed that the Minister pay Barry Dale Stevens and Roma Stevens $6,410.00 for compensation due in 2019. At the time that the original order was issued, the Certificate of Title on the Tribunal’s file named Roma Stevens as the sole the owner of the land as of November 24, 2023.
In error, the original panel relied upon the cancelled Historical Certificate of Title which had named Barry Dale Stevens and Roma Stevens as the owners of the Land.
On the basis of Order LPRT903937/2024, the Minister issued a cheque to Barry Dale Stevens and Roma Stevens.
All parities were provided with notice that the Direction to Pay had been issued.
[4] On August 24, 2024 EMBER contacted the Tribunal to indicate that it had made a payment of $5,935.84 to Barry Dale Stevens and Roma Stevens based on what it described as a “gratuitous, pro-rated payment”. EMBER suggested that as it had acquired the site on November 1, 2019, TRIDENT should be held responsible for the balance.
EMBER made no request for reconsideration of the original decision. In the ordinary course, this would be a matter for Crown Debt Collection, not the Tribunal.
The landowner did not advise the Tribunal that payment had been made.
[5] On January 12, 2025, Cheryl Fisher contacted the Tribunal indicating that she was acting on behalf of her mother Roma Stevens. She indicated that Barry Stevens had passed away and that her mother “needs the cheque to be issued in her name alone”. Ms. Fisher made no mention of the payment by EMBER nor any suggestion that there was a difficulty in cashing the cheque from EMBER.
[6] On February 10, 2025 Ms. Fisher contacted the Tribunal again to request that a replacement cheque be issued in the name of Roma Stevens alone indicating that the bank would not cash the cheque that had been issued. Again, there was no reference to the payment by EMBER.
[7] On March 4, 2025, the Finance Department for Environmental and Protected Areas reported that Ms. Fisher had returned the cheque to them.
[8] Section 1 (i)(i) of the Act defines “owner” as “the person in whose name a certificate of title to land is issued under the Land Titles Act.” Barry Dale Stevens was not a person named on the certificate of title.
ISSUES
5. Should the Tribunal initiate its own review of Order LPRT903937/2024?
6. Should the Tribunal request submissions from the parties?
7. Should the Tribunal amend, rescind or replace Order LPRT903937/2024 or order a rehearing?
8. Should the Tribunal suspend and terminate the Operator’s rights?
DECISION
5. The Tribunal will initiate its own review of Order LPRT903937/2024.
6. The Tribunal will not request submissions from the parties.
7. The Tribunal will amend Order LPRT903937/2024.
8. The Tribunal will not issue orders of suspension and termination.
ANALYSIS
Tribunal-Initiated Review
[9] Section 29 of the Surface Rights Act gives the Tribunal the power to review orders and decisions. The Act also gives the Tribunal the power to set its own rules for practice and procedure (Section 8(2)(b)). Rule 39 establishes the process by which reviews under section 29 are processed.
For requests submitted by the parties, reconsideration is a two-step process. An applicant must first establish the pre-requisites for reconsideration on a balance of probabilities. (Canadian Natural Resources Limited v. Main 2020 ABSRB 735). Rule 37(3) provides as follows:
The Tribunal may only decide to review a decision or order if one of the following requirements for review are met:
(f) the decision or order shows an obvious and important error of law or jurisdiction; or
(g) the decision or order shows an important error of fact, or an error of mixed fact and law, in the decision or order that affects the decision or order; or
(h) the decision or order was based on a process that was obviously unfair or unjust;
(i) the decision or order is inconsistent with an earlier Board decision or order, binding judicial authority, or provision of the legislation, regulation or rules; or
(j) there was evidence at the time of the hearing that was not presented because it was unavailable to the party asking for review, and which is likely to make a substantial difference to the outcome of the decision or order.
However, the Tribunal also has the power to initiate its own review. For reviews initiated by the Tribunal, the Tribunal may set its own processes. The Tribunal is not strictly required to consider the pre-requisites for review that parties must establish in terms of errors of fact, law or process, though those factors are still important to a review brought by the Tribunal itself.
In this case, there was an error of law: the certificate of title names Roma Stevens as the sole owner and the person entitled to payment. This error justifies a review by the Tribunal.
While the late submissions provided by EMBER would not be normally be considered, given the mistake in the original order and the delay in processing this application, this Panel will take into consideration the partial payment made.
Submissions
[10] For requests for review filed by the parties, Rule 37(5) requires that the parties be given an opportunity to provide submissions. However, Rule 6(3) allows the Tribunal to “waive or vary a requirement of these rules at its discretion.” For Tribunal-initiated reviews, the Panel can set its own procedures which may or may not include a request for submissions.
[11] This Panel has determined that there is an error in the original decision and on that basis will amend the order. As the amendment accomplishes what was requested by the Landowner, further submissions are not required from the landowner.
[12] With respect to EMBER, while there is no application before the Tribunal by EMBER seeking a review, the commentary suggests that EMBER is of the view that it is not responsible for debts that were incurred prior to its acquisition of the site and that liability as between operators is not joint.
EMBER is a sophisticated operator. EMBER is aware of the recent direction from the Court of King’s Bench with respect to the liability of subsequent purchasers in the landmark decision Canadian Natural Resources Limited v. Trident Exploration (Alberta) Corp., Kent Patrick Holowath et al Docket 2301 08556. In the decisions that followed, the Tribunal has held that a subsequent purchaser is not protected when the purchase is under the standard terms of a Vesting Order. EMBER has not provided a copy of the Vesting Order to suggest otherwise. Please refer to Holowath v. Trident Exploration (Alberta) Corp. 2024 ABLPRT 900301 dated February 1, 2024.
EMBER is also aware of the body of case law that finds that liability as between operators is joint.
In Dobish v Terra Energy Corp, 2019 ABSRB 737 the panel held at para 14:
[n]othing in s. 36 of the Act limits the liability of any one of the operators, including s. 36(4) and working interest participants. If the Act meant to limit the liability of a working interest participant to the percentage of its working interest, it would have explicitly said so. Rather, s. 36(4) of the Act instructs the Board to demand “full payment” from an operator if evidence satisfactorily proves non-payment.
With multiple definitions of an “operator” in the Act, along with the requirement for an approval from the regulator, there can be more than one operator concurrently responsible for the Site.
The suggestion that the payment was “gratuitous” is to ignore the case law.
As there is no request for review, as the payment is five years late and the case law does not support the position taken by EMBER, this Panel will not ask for further submissions from EMBER.
[13] TRIDENT is insolvent and therefore not capable of responding.
[14] Given the long delay in processing this application, this Panel waives the requirement for submissions.
Options
[15] The legislation provides the options to confirm, rescind, amend or replace any Tribunal decision, or to order a rehearing.
It is clear that the original order is incorrect in naming Barry Dale Stevens as an owner. It is also clear that a partial payment, although many years late, has been made. The original order will be amended to name Roma Stevens alone and to reflect the partial payment made.
The practical problem of what to do with the cheque has already been solved. Ms. Fisher has already returned the cheque to Finance so that issuing a new cheque in the name of Roma Stevens will not result in overpayment.
Termination
[16] The Tribunal may suspend and terminate the access rights of an Operator when appropriate to do so. There are three active wells on the site, and EMBER is an active corporation. An operator should not be allowed to profit from activities on the site without making payment to the landowner.
However, there are several other factors to consider:
• the claim dates back to 2019,
• the original panel did not consider making a termination order,
• it was the Tribunal that identified the wrong parties,
• it would be appear that payment has been made since 2019,
• the partial payment that was made represents almost a full year’s entitlement, and
• the owner did not notify the Tribunal that payment had been received.
So as not to delay the matter further, this Panel will not issue orders of suspension and termination.
Dated at the City of Edmonton in the Province of Alberta this 26th day of March, 2025.
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LAND AND PROPERTY RIGHTS TRIBUNAL |
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Susan McRory, Chair |