The Magazine of the Canadian Association of Petroleum Landmen June Landowner When An. Environmental Damages Under Bill C-46

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1 THE NEGOTIATOR The Magazine of the Canadian Association of Petroleum Landmen June 2015 Compensating the Landowner When An Insolvent Energy Company Fails To Pay Its Rent ATB Q M&A Report Environmental Damages Under Bill C-46 Discussions in New Environmental Regulations Crown Oil Sands Dispositions and the Duty to Consult Buying It Doesn t Mean You Can Drill It

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3 THE NEGOTIATOR The Magazine of the Canadian Association of Petroleum Landmen Senior Editorial Board Director of Communications Kent Gibson [ph] Advertising Editors Kevin Young [ph] Trevor Rose [ph] Coordinating Editor Krissy Rennie [ph] Feature Content Editor Mark Innes [ph] Regular Content Editor Anne Macedo [ph] Social Content Editor Jason Peacock [ph] Editorial Committee Josh Lewis [ph] Amy Kalmbach [ph] Nathan Roberts [ph] Dinora Santos [ph] Design and Production Rachel Hershfield, Folio Creations Printing McAra Printing Submissions For information regarding submission of articles, please contact a member of our Senior Editorial Board. Disclaimer All articles printed under an author s name represent the views of the author; publication neither implies approval of the opinions expressed, nor accuracy of the facts stated. Advertising For information, please contact Kevin Young ( ) or Trevor Rose ( ). No endorsement or sponsorship by the Canadian Association of Petroleum Landmen is suggested or implied. The contents of this publication may not be reproduced either in part or in full without the consent of the publisher CAPL Board of Directors President Nikki Sitch, P.Land, PSL Vice-President Larry Buzan, P.Land Director, Business Development Alberta & British Columbia Ted Lefebvre, P.Land Director, Business Development Saskatchewan & Alberta Oilsands Michelle Creguer Director, Communications Kent Gibson Director, Education Bill Schlegel, P.Land Director, Field Acquisition & Management Paul Mandry, PSL Director, Finance Andrew Webb Director, Member Services Ryan Stackhouse, P.Land Director, Professionalism Noel Millions, PSL Director, Public Relations Gary Richardson, PSL Director, Technology Mandy Cookson Secretary/Director, Social Jordan Murray Past President Michelle Radomski Readers may obtain any Director s contact information from the CAPL office. Suite 350, Avenue S.W. Calgary, Alberta T2P 3L5 [ph] [fax] Kaitlin Polowski Denise Grieve Irene Krickhan Karin Steers THE NEGOTIATOR Features June Who Compensates the Landowner When an Insolvent Energy Company Fails to Pay its Rent? Shaun Fluker 6 The Horse is There But Will it Ever Drink? Martin Olszynski 12 Crown Oil Sands Dispositions and the Duty to Consult Nigel Bankes In Every Issue 9 The Negotiator s Message From the Board: Finance 9 The Negotiator s Message From the Board: Past President 11 Board Briefs 26 Get Smart 28 Roster Updates 31 The Social Calendar 32 CAPL Calendar of Events 32 June Meeting 32 September Meeting Also in this issue 14 Q1 M&A Report 17 Summary Judgement on Contested Amounts Owing Under Natural Gas Processing and Related Agreements 19 PAUA Update 20 27th Annual CSPG/CSEG/CAPL 10km/5km Roadrace and Fun Run 21 CAPL Luncheon 22 38th Annual Trap Shoot CAPL Golf Tournament 25 CAPL New Office Space 29 The PLM Alumni Charity Golf Classic

4 Who Compensates the Landowner When an Insolvent Energy Company Fails to Pay its Rent? The law in Alberta provides an energy company with the right of surface access on private lands to drill for oil and gas. This access allows The Surface Rights Board is a tribunal that assists landowners/occupants and operators resolve disputes about surface access and compensation when operators requires the company, among other things, to construct access to private land or occupied crown an access road and clear lands for the well site. land to develop subsurface resources such In most cases, the company and the landowner as oil, gas, and coal or to build and operate enter into a surface lease whereby the company pipelines and power transmission lines. agrees to pay rent in exchange for this access. The Board has authority to grant rights In other cases, surface access is governed by a of entry and to assist landowners and oper- Right of Entry Order issued by the Alberta Surface ators resolve disputes about: rights of entry Rights Board whereby the company obtains access and related compensation, compensation in exchange for the payment of rent. The current review, damages, recovery of rentals, and cycle of low prices for oil and gas has given rise review of its past decisions. It reports to the to a new battleground between landowners and Minister of Environment and Sustainable energy producers in Alberta: Who compensates Resource Development, but it operates the landowner when an insolvent energy company independently and can generally set its fails to pay its rent? own procedural rules. The rent dispute between a landowner and an 2 energy company falls within the jurisdiction of the Alberta Surface Rights Board to resolve. The Board is established under section 3 of the Surface Rights Act, RSA 2000, c S-24, and consists of members appointed by Cabinet. The Board describes its mandate as follows: Source: Alberta Surface Rights Board. Surface access and the compensation payable by an energy company to a landowner is governed by the Surface Rights Act. Section 36 deals with Written by Shaun Fluker Associate Professor of Law University of Calgary

5 situations where the company fails to pay its rent. Where a BIA ). In its decision on this matter, Petroglobe Inc v. Lemke, 2014 landowner provides the Surface Rights Board with satisfactory ABSRB 401, the Surface Rights Board ruled the federal Bankruptcy evidence of non-payment, section 36 obligates the Surface Rights and Insolvency Act precludes the Board from proceeding with the Board to demand payment from the company: Lemkes section 36 application under the Surface Rights Act. The Petroglobe v. Lemke decision itself has very little reasoning 36(3) Where any money payable by an operator under a to support this ruling other than what is contained in 6 short para- compensation order or surface lease has not been paid and graphs of analysis set out below: the due date for its payment has passed, the person entitled to receive the money may submit to the Board written Does the assignment into Bankruptcy of the Operator evidence of the non-payment. preclude the Board from proceeding with the application under s.36 of the Act? 36(4) On receiving the evidence, if the Board considers that it satisfactorily proves the non-payment, the Board shall send Section 36 of the Act provides landowners with a remedy a written notice to the operator demanding full payment. to recover payments due under a compensation order or surface lease. However, s.69(1)(a) of the BIA provides that Where the company fails to comply with this demand for no creditor has any remedy against the insolvent person payment, subsections (5) and (6) in section 36 provide the Surface or the insolvent person s property, or shall commence or Rights Board with the power to extinguish the company s surface continue any action. access rights and direct the Minister to pay the landowner. We might then summarize these provisions simply as holding that Proceeding with a s.36 application would allow the land- Albertans collectively guarantee that a landowner will receive owner (as a creditor) to commence an action against the their rent as compensation for having to endure the disruptions to Operator (an insolvent person). their quiet enjoyment brought by the oil and gas industry. The typical scenario presumably involves a landowner filing Under the doctrine of federal paramountcy, the Act, as evidence with the Board of unpaid rent under a surface lease Provincial legislation, is rendered inoperative to the extent concerning well site facilities on their land which are no longer of the incompatibility with the federal law Canadian operated by the energy company because production is not Western Bank v. Alberta, 2007 SCC 22 (CanLII), (2007) 2 S.C.R. economic. The company may have chosen to continue with rent 3 at paragraph 69. payments under the lease for years after ceasing to operate the facilities as it is cheaper than properly abandoning and reclaim- While s of the BIA creates an exception for proceed- ing the site under Alberta laws. At some point however the ings before a regulatory body, and the definition of rent payments stop arriving for one reason or another and the regulatory body appears to include the Board, the excep- landowner is left with unwanted facilities on their land and no tion excludes the enforcement of payment ordered by the compensation for the disruption. Section 36 provides the land- regulatory body. Since the object of s.36 of the Act is to owner with a course of action before the Board to recover the rent enforce payment from the Operator through suspension payable under the lease. and termination of its rights, it falls outside the excep- Which brings us to the matter of unpaid rent owed by an insol- tion of s.69.6 of the BIA, and is inoperable with respect to vent operator to Drayton Valley area landowners Doug and Marg Operators in bankruptcy proceedings. Lemke. The Lemkes entered into a surface lease with Petroglobe Inc., back in 2006 in relation to a well operated on their land. The Applicant s only recourse at this time is through the The Lemkes filed evidence with the Surface Rights Board to bankruptcy proceedings. demonstrate: (1) they are the registered landowner of the subject lands; (2) there is a valid surface lease between the parties; and The Board is precluded from proceeding with a s.36 appli- (3) that Petroglobe failed to pay its 2013 rent of $3700 under the cation, while an Operator is in bankruptcy proceedings. lease. This documentation satisfied the Lemkes obligation under section 36(3) to demonstrate non-payment of rent. Source: Petroglobe Inc v. Lemke, 2014 ABSRB 401 A panel of the Surface Rights Board convened in June 2014 to consider the Lemkes section 36 claim. The twist in the Lemke case is that Petroglobe went insolvent and, according to the Surface Rights Board, was assigned into bankruptcy in October 2013 pursuant to the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the The Board cites provisions of the Bankruptcy and Insolvency Act which, generally speaking, state no proceedings outside of the federal bankruptcy and insolvency process may be commenced against an insolvent person who has made a proposal to its 3

6 creditors or has been assigned into bankruptcy, and then makes brief reference to the Supreme Court of Canada s Canadian Western Bank v. Alberta, 2007 SCC 22 decision for the principle that a federal statutory provision trumps a provincial provision in cases of incompatibility. According to the Board, the doctrine of federal paramountcy means section 36 of the Surface Rights Act is inoperable in this case because a section 36(4) demand for payment of rent is not allowable under the federal Bankruptcy and Insolvency Act. There are a number of problems with this analysis and its result. To begin with, the reasoning provided by the Surface Rights Board for such a complex suite of legal issues including statutory interpretation and constitutional matters is unsatisfactorily brief and, in my opinion, would not stand up to scrutiny in judicial review. It is well settled law in Canada that administrative tribunals such as the Surface Rights Board have a legal obligation to provide thorough and complete reasoning when they work through difficult legal issues such as this one. As well, there is arguably no incompatibility between the Surface Rights Act and federal Bankruptcy and Insolvency Act in this situation that renders section 36 inoperable. The Board s brief analysis fails to include the 1990 Supreme Court of Canada decision in Bank of Montreal v. Hall, [1990], 1 SCR 121 where the Court ruled there must be actual conflict in operation in the sense that compliance with the provincial statute necessarily means non-compliance with the federal statute (at paras 52 to 59). It is hard to see how a section 36(4) demand notice issued by the Surface Rights Board necessarily entails defiance of the applicable provisions in the federal Bankruptcy and Insolvency Act. The Board incorrectly states a section 36 application allows a landowner to commence proceedings against the insolvent company. In a case like this where the company does not pay, it is actually Alberta taxpayers who are potentially on the hook for the bill, not the insolvent company, because ultimately it is the Minister who covers the rent owing to the landowner when the company is unable or unwilling to pay. In relation to federal bankruptcy and insolvency proceedings, it seems that the real effect of section 36 is to place the Alberta government onto the list of unsecured creditors of the insolvent energy company. There is no proceeding commenced against the insolvent company under section 36, and thus no actual conflict between the federal and provincial statutory provisions here. The result here also seems absurd in that it defeats the purpose of the Surface Rights Act to ensure that a landowner is compensated. In this regard, it is important to note that section 36 of the Surface Rights Act has been judicially interpreted as some form of guarantee for landowners. In Provident Energy v. Alberta (Surface Rights Board), 2004 ABQB 650 Justice Erb stated: In my opinion, the purpose of Section 36 of the Act is obvious. It is to provide a mechanism by which the surface owner is guaranteed payment of the compensation to 4

7 which he is entitled whether the compensation has been fixed by an agreement or not. In order to carry out its duties in some sensible fashion, the Board would have to determine whether the lease was valid and whether compensation was payable to any party and by whom. As Sirrs J. held in the Devon case, the application of Section 36 is discretionary and even if a land owner shows sufficient evidence that a lease exists, the Board is not bound to order compensation. If the Board was bound to do so, this would amount to a fettering of its discretion (Provident Energy at para 27). While not read as an absolute guarantee for landowners in all circumstances, Alberta courts have certainly suggested this is a guarantee against unpaid rent because of insolvency. In Devon Canada Corporation v. Surface Rights Board, 2003 ABQB 7 Justice Sirrs noted: Justice Virtue in OH Ranch Ltd. v. Surface Rights Board (Alberta) [1994] 148 A.R. 315 referred to this process guaranteeing payment to the surface owner of compensation to which it is entitled. Although guaranteeing payment is correct in the usual case of a surface owner seeking payment from an insolvent oil company, I am not satisfied that the wording of s. 36 implies a blanket guarantee of all cases by the provincial government. S. 36 provides a pragmatic, inexpensive remedy for a surface owner to obtain payment when an operator is wrongfully withholding payment or is insolvent (Devon Canada Corporation at para 25) In October 2014 the Lemkes asked the Surface Rights Board to reconsider this decision under its power to do so provided by section 29 of the Surface Rights Act. Last month (April 2015) former Premier Jim Prentice abruptly announced on the campaign trail that he was also asking the Surface Rights Board to reconsider its decision. And on April 7, 2015 the Board stated it would reconsider Petroglobe v. Lemke and agreed to hear additional submissions from the parties on this issue. In light of the analysis set out here, this announcement and reconsideration is a welcome development. m Shaun Fluker is an Associate Professor of Law at the University of Calgary. A previous version of this article first appeared on ABlawg, the University of Calgary Faculty of Law blog. 5

8 The Horse is There But Will it Ever Drink? Environmental Damages and Bill C-46 (Pipeline Safety Act) On December 8, 2014, the federal government introduced Bill C-46, An Act to Amend the National Energy Board Act and the Canada Oil and Gas Operations Act, otherwise known as the Pipeline Safety Act. Bill C-46 is the provides, e.g. a tract of forest, a wetland, or a coastal area (such as Prince William Sound following the Exxon Valdez oil spill, or the Gulf of Mexico following the Deepwater Horizon blowout). Environmental and resource economists divide such harms into the loss of two most recent piece of federal legislation intended kinds of values: use value and non-use value. to strengthen Canada s regime for federally regu- The Library of Parliament s Legislative Summary of lated oil and gas activity, especially with respect to Bill C-46 defines these as follows: incident prevention, response, liability and compensation. This article focuses on one of the proposed Use values are associated with direct use tools for improving liability and compensation: the of the environment such as fishing and inclusion of environmental damages provisions swimming in a lake, hiking in a forest in the Act. It begins with a primer with respect to or commercial uses such as logging or environmental damages (what they are and how farming. Non-use values are related to the they are assessed) and then considers their role and knowledge of the continued existence of treatment under Bill C-46. The final part includes the environment or the need to leave envi- two recommendations for improvement. ronmental resources to future generations. 6 A Primer on Environmental Damages and their Assessment Most simply, environmental damages can be understood as financial compensation awarded for the loss or impairment of some public environmental asset and the services that it Environmental damages assessment (EDA) can be a complex and difficult task. Various scientific disciplines (e.g. ecology, toxicology, hydrology) are applied to first determine the extent of harm done, while economics, and the techniques of environmental valuation in particular, are then used Written by Martin Olszynski Professor of Law University of Calgary

9 to convert this harm into monetary terms. In fact, and at least partially out of recognition for this complexity, environmental valuation is increasingly being done indirectly, in that the monetary amount is based not on an economic assessment of lost use and non-use values but rather is based on the cost of fully restoring the harmed environment and the various services it provided, such as water filtration or storm mitigation, prior to an incident. Environmental Damages under Bill C-46 There are actually two different roles for environmental damages within Bill C-46: they play a role in sentencing and in civil liability. As to sentencing, where an operator commits an offence under the National Energy Board Act (NEBA), a new section 132 will direct sentencing judges to consider the damage or risk of damage to the environment, caused by the offence, which will be defined as including the loss of use value and non-use value. Through this amendment, NEBA will join the ranks of at least nine other federal environmental laws with similar sentencing provisions. 1 Although light on details, this wording has the benefit of being both simple and comprehensive. The other environmental damages provisions, which are decidedly more opaque, are found in the context of civil liability. New subsection 48.12(1) refers to three heads of damages for spills: (a) all actual loss or damage incurred by any person as a result of [a spill] (b) the costs and expenses incurred [for clean up]; (c) all loss of non-use value relating to a public resource that is affected by the release In other words, environmental damages are not actually referred to in this part of the Bill. Rather, their availability at least partially is implied by the reference in subparagraph (c) to all loss of non-use values relating to a public resource. Use values are not explicitly mentioned. Three other relevant provisions are subsections 48.12(9) and 48.13(5). The first states that only federal and provincial governments may sue for the loss of non-use values. The second states that the National Energy Board (NEB) is not required to consider the potential loss of non-use values when determining the financial resources operators will be required to maintain for the purposes of spill-related liability. Discussion and Recommendations In my view, the third category of loss under civil liability should be amended to refer not just to non-use values but to environmental damages more broadly (e.g. all environmental damages resulting from the release ). This should be coupled with an additional subsection defining environmental damages as defined in the sentencing provisions (i.e. includes the loss of use value and non-use value Uncertainty in the political landscape? Partner with a forward thinking, proactive company. Adaptability is the 5th core value of CWL. Find out what it means. Call us

10 This would not only simplify this section but also ensure its comprehensiveness. For example, a spill from a federally regulated pipeline could affect a wetland. Wetlands provide numerous services that are beneficial to farmers (e.g. water purification), hunters (e.g. habitat for waterfowl) and urban centres (e.g. flood mitigation). 2 Where such services exist they give rise to use values and yet their loss would not necessarily be captured by Bill C-46 s current and exclusive focus on non-use values. My second recommendation is that the Governor in Council (i.e. Cabinet) should be required within a certain time frame (e.g. two years) or at least authorized to make regulations setting out a process for environmental damages assessment (EDA). Further, reliance on this process should result in a rebuttable presumption of validity in any legal action for such damages. First, and as noted above, EDA is a difficult and complex exercise; regulations would bring certainty to all parties and reduce needless litigation. It is for these very reasons that the equivalent American legislation, the Comprehensive Environmental Restoration, Compensation and Liability Act (CERCLA) and the Oil Pollution Act (OPA), contain such provisions and that processes have been prescribed for what is there referred to as Natural Resources Damages Assessment (NRDA). Simply put, such regulations represent the gold standard in this context. My second reason tracks the preventative spirit of the Bill, and speaks to the title of this article. With the passage of Bill C-46, there will be roughly ten federal laws on the books with some kind of environmental damages provisions. In fact, it has been over a decade since the Supreme Court of Canada first opened the door for governments to sue for such damages in a case called Canadian Forest Products v. British Columbia (2004). And yet, I am not aware of a single case where the federal government has actually sought to recover for such harm, a reality that greatly undermines the deterrent effect that regimes like Bill C-46 are intended to create. The making of regulations, which should be made applicable to all federal EDA regimes (not just Bill C-46), would go a long way in remedying this. m Notes 1. See the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act, and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. 2. Major efforts are being made to better understand the value of functioning ecosystems and the goods and services they provide. The leading project in Alberta is that of the Alberta Biodiversity Monitoring Institute; see ca/wp-content/uploads/2014/10/alma-poster-v3-small1.pdf This article originally appeared on ABLawg, the University of Calgary Faculty of Law Blog. The author also had the opportunity to present these comments to the House Standing Committee on Natural Resources during its study of Bill C-46 in March,

11 The Negotiator s Message From the Board Thank you to all members, staff (Denise, Karin, Irene and Kaitlin), sponsors, the Board, past members, and fellow strivers making this journey more fruitful and enjoyable every day. m Larry B. Buzan, P.Land Director, Finance Finance Life began anew for me in May 2014 as your new volunteer Director of Finance Past President This past year as the CAPL President has been both rewarding and challenging. As a Board, we accomplished a great having taken the reins from Jan many of the goals and objectives that McKnight (thank you Jan for helping we set out to achieve, including the make this transition easier). It began task of actually setting goals and objectives for myself and each with a rush, signing authorities, budget review, meeting our of the directors at the outset so we had a sightline on our tar- investment handlers over at CIBC Wood Gundy, understanding geted outcomes. all the implications of sponsorship sources and expenses here at As a result, we worked hard on reviewing, updating and getting CAPL. I loved it and still do. Thank you, Nikki Sitch, past Director of the by-laws amended. Most importantly we clearly defined the Finance. Your help was much appreciated. CAPL as an association of professional landmen and the specific Financial Statements. As audited by Numeris LLP, and as landman roles that qualify for holding an active membership. reported at our monthly business meeting in April, we surpassed We have an updated Website design platform with many more expenses by $130,625 versus $136,684 in the same period last new enhancements still under way to bring added functionality reporting year. This good news coupled with a significant drive for our members. to make every committee aware of the office allocation and extra Nikki Sitch, Vice-President, and I made sure to introduce push for revenue to exceed expenses by every committee, we formalized goals, objectives, performance and salary reviews and created a template budget for many committees many of whom succession planning for the office staff. It provided appropriate seeing these added costs for the first time. Bottom line is the office and meaningful work assignments, expectations and rewards. costs are carried by all the committees but most did not see it as a Several new educational courses are being developed to bottom line number on their budgets every year. We made it plain, provide more advanced skill training and technical breadth. A new and we will continue to improve on it again this year. business learning luncheon format was introduced this spring. Budget. Our year old CAPL Monetary Management Policy, Our Public Relations portfolio has been tasked with a renewed driven by our auditor s feedback, ensured that we were driving focus on building and maintaining external relationships. There is the base business costs down to the committee level and required a targeted effort to share in ongoing communications with EPAC/ all to create budgets that, as accurately as possible, reflected the CAPP and PSAC, such as exchanging newsletters, to ensure we are upcoming year s financials. But what a year this has been, eh? informed and working in unison on common industry initiatives So hats off to doing your best CAPL committees as sponsorship and issues. The historical 4H Steer Raffle fundraiser has been levels dropped and expenses rose in almost all cases. We will replaced this year with the Barn Burner, an exciting new format strive harder to steward the revenues we receive and manage the for CAPL members to network and mingle with the public on May expenses we incur at every level mirroring what the industry has 7, with entertainment by country singer Aaron Pritchett, while been doing since last November. raising funds in support of the 4H. Membership. You are the reason we exist as a Board and our A volunteer code of conduct policy has been established. It will inter-industry relationships need to be constantly nourished by be enforceable by the Board to ensure that all committees and the what we write, what we do and what we say every year. Our Board individual volunteers have specific and consistent expectations wants to create environments for members to be creative, to learn, and accountabilities to the CAPL members and the Board. to network with one another and to be proud of the organization from top to bottom. Going forward, there will be trimming to do but we all expect this so let s embrace it and make it work for us, not against us. The best resource we have is each other and based on our years since 1948 we have a strong foundation to build on. Initial step towards a centralized marketing and budget management mandate have been taken. It will hopefully continue to be built upon to ensure that our access to, and use of, a limited source of external sponsorship funding is respected and appropriately prioritized and allocated to support those 9

12 10 CAPL events and operations that provide the most value and benefit to the membership. We introduced the first inaugural Industry Night to replace Management Night this past January. This gave us the opportunity to invite our technical teams, showcase our association and demonstrate the professionalism that underlies our CAPL social networking events. This format was very well received by members and guests and I truly hope to see this event repeated annually. Most recently, the Board made the very difficult decision to cancel the 2015 Annual Conference in St. John s, Newfoundland in consideration of the current economic environment. This recognized the harsh reality that sponsorship dollars are fewer and many companies were not prepared to incur the expense for members in their employ to attend. To proceed would have been fiscally irresponsible as it would have been very difficult for the Conference Committee to offer a program giving meaningful value to significantly fewer participants without likely incurring a deficit. This is to mention just a few of the many initiatives undertaken and results delivered by the Board and our many dedicated committees this past year. Now, I d like to share with you some of my learnings and observations gained in the course of the past year as President. Let me first address the question, or perhaps it s simply the misconception, of whether the CAPL is a professional organization or a social club. This has been and will probably continue to be debated among membership at great length. So, here s my two cents worth. From my short time at the helm, I can tell you that we have a good many of our members dedicating their personal time and effort working on committees and in liaison positions to ensure that the CAPL is represented and seen externally as an association of professional landmen and to provide its members with numerous opportunities to continually develop their skills, expertise and professionalism as landmen. It takes a great amount of commitment from these volunteers to offer i) educational courses and networking opportunities; ii) to publish ten newsletters per year focused on a collection of articles specifically written to address those developments and issues that impact the work of landmen; iii) to appear at various community, industry and educational institution events and iv) to participate in several joint industry and government initiatives. Frankly, I don t think that very many of the CAPL members realize or appreciate the level of volunteerism or the extent to which this adds to the professionalism of our members and this association. Before becoming President of CAPL, was just as guilty of being only remotely cognisant of these committees and individuals work. Yet, we not only allow others, but we ourselves too often overlook this work and allow this organization to be defined and measured based more so on the social events. However, it is the social networking component that sets us apart from other professional disciplines. It builds those relationships that give us the edge as negotiators and establishes the landman as an equal and valued team member among our peers. Regardless of our affiliation with this association or whether or not we pursue professional designations similar to those of other disciplines, ultimately it is our conduct, in the performance of our jobs, that determine whether we are perceived and respected by our peers as professionals and leaders. Lastly, I d like to talk about the idea of whether we should continue to be a multi-faceted organization or be segregated to better serve the specialized business and professional needs of landmen in the areas of mineral, surface or contracts. If we look back to the grass roots of this association, it was founded in 1948 by eight members that did it all. Nowadays each of these disciplines are uniquely different and are continuing to evolve with respect to the skill sets and job responsibilities of landmen in these roles. Many of these roles are still inter-related. So, can our current mixed membership s needs be better met by creating much smaller, focused associations, or do we take advantage of the resources and synergies of a much larger organization and just do a better job of it? There may be no one right or wrong answer, but I ll suggest there s no harm at first taking a stab at the latter before reaching the foregone conclusion that members are not getting or cannot get what they need from the CAPL. It may mean the membership as a whole getting more engaged in deciding CAPL s future, and all working together in making and embracing progressive changes. There is still, undoubtedly, much to do. We should be proud of all this association has done for its members and contributed to the industry. I am grateful that I was given the chance this past year as President to participate in the CAPL s evolution toward those changes that will define the future of the CAPL for the betterment of its members and the profession of landmen. I want to thank the Board of Directors that I had the honor to work with. Each and every one were selflessly committed to making this association work for the members and therefore made my job as President truly gratifying. I also want to thank the office staff, Denise, Karin, Irene and Kaitlin for their incredible dedication to this association. m Michelle Radomski Past-President,

13 Board Briefs The key discussion items at the CAPL Board of Directors Meeting held April 28, 2015 at the CAPL Office were as follows: Michelle Radomski advised the Board that an open house at the new CAPL office space was being planned for June 24 to welcome all members to the new location. Larry updated the Board on the Merit Awards night and advised In Attendance Absent L. Buzan M. Radomski P. Mandry M. Creguer J. Shea M. Cookson C. De Ciancio N. Sitch J. Covey K. Gibson A. Webb B. Reynolds A.Weldon G. Richardson Larry Buzan, Director of Finance, presented a Treasurer s Report as at April 28, 2015, showing CAPL investments totalling $985, CDN plus a cash balance of $618, for a total of $1,603, CDN. The CAPL Scholarship Fund has a balance of $245, CDN. There were no transfers made since the last report. Kent Gibson, Director of Member Services, presented applications for three (3) Active members, one (1) Associate Member and five (5) Student Members, and a request from two (2) Active Members to have their member status changed from Active to Senior, all of which were subsequently approved by the Board of Directors. Larry Buzan tabled the master budget for Board consideration which highlighted the challenges expected as a result of the recent downturn in the oil and gas sector which will negatively affect revenues. The Board agreed to make further cuts to any expenses where possible and re-run the budget in light of current market Elexco_Negotiator conditions. qrtrhoriz4cfinpage 1 6/24/11 7:47:54 PM that nominations have been submitted and there will be a 65 year pin awarded this year. Connie De Ciancio advised the Board that the new CAPL office space will be available to rent by third parties for classes or seminars which will provide additional revenue to the association. Connie also advised that the Education Committee will be running new courses on leadership training, reserve evaluations and geology in the fall. Gary Richardson updated the Board on the Freeholders of Alberta Annual General Meeting which was held in Red Deer as well an open house hosted by the West Central Stakeholders group. Andrew Weldon updated the Board on a University of Pennsylvania initiative on Best in Class Regulators which was attended by CAPL representatives. Michelle Radomski reminded Directors of the following: The next Board of Directors Meeting will be held on May 26, The next General Meeting will be the Merit Awards and President s Scotch and Wine Tasting Networking Night on May 28, 2015 at the Westin. m Andrew Webb Secretary/Director, Social Mineral and Surface Leasing Right-of-Way Acquisitions Mineral Ownership/Title Curative Seismic Permitting Mapping/GIS Services Abstracts of Title A FULL SERVICE LAND COMPANY SERVING NORTH AMERICA Elexco Ltd. Canada: Elexco Land Services, Inc. New York: Michigan: Pennsylvania:

14 Crown Oil Sands Dispositions and the Duty to Consult Case Commented On: Buffalo River Dene Nation v. Ministry of Energy and Resources and Scott Land and Lease Ltd., 2015 SKCA 31 The Saskatchewan Court of Appeal has confirmed Justice Currie s decision (http://ablawg. ca/2014/04/22/crown-oil-sands-dispositions-and-the-duty-to-consult/) to the effect that the grant of an oil sands exploration permit in Saskatchewan does not trigger the Crown s duty to consult principally on the grounds that there is no potential for conflict between the rights conferred by the permit and the First Nation s treaty rights. This is because the permit alone gives the permittee no right to use the surface while the First Nation (at para 88) does not advance here a treaty right or Aboriginal claim to subsurface rights or rights exercisable in relation to the subsurface of Treaty 10 lands. Furthermore, at the time that the permit is granted there is no project on which to consult about; this will only become apparent when the permittee (if ever) develops a plan for its proposed exploration or development of the underlying minerals which requires surface access at which time consultation will occur. And (at para 92) It is at this point that the Crown and Buffalo River Dene Nation would have something meaningful, in the sense of quantifiable, to consult about, to reconcile. Until then there is no project. In this picture the Crown is an empty vessel patiently waiting on industry (and world oil prices). That is a large part of the picture, but I m not sure that it is the whole picture as discussed in my earlier post on the trial decision. The Crown has a project of its own. The reality is that the Crown has made a decision or a series of decisions. It has made the decision that the lands in question are potentially open to oil sands exploration; and most important of all, the Crown has made the decision that other values including environmental values (see para 9(a)) are not sufficiently important to deny industry s request to have the lands posted. The 65 page judgment contains a useful review of the leading consultation decisions from across the country. It also contains an intriguing discussion about the relative merits of consulting on every permit issuance versus consulting on the bigger picture and (at para 85) the broader effects of Crown conduct. Thus the judgment notes (id), referring to Dwight Newman, Revisiting the Duty to Consult Aboriginal Peoples, 2014, that consultation on every permit would be death by a thousand cuts in which Aboriginal groups might not appreciate the significance of each permit; better perhaps therefore to structure consultation around the Crown s overall strategy for oil sands development in this part of the province. There is no doubt much to be said for this sort of dialogue. A dialogue that considers competing visions for the use of traditional territory; a dialogue that takes cumulative impacts seriously; and a dialogue that perhaps seeks to address which lands should be open to oil sands exploration and which withdrawn. But having raised this issue Justice Caldwell backs away from its implications implicitly, preferring to emphasize (at para 87) that consultation is better left to the well-defined and linear regulatory process that will kick in if and when there is a more concrete development proposal rather than the Crown s broader strategic decisions. m Nigel Bankes To subscribe to ABlawg by or RSS feed, please go to Follow us on StandardLand_ADV_Negotiator_Layout 1 3/7/12 11:29 AM Page 1 Standard Land Company Inc. We make your job easier. The Four Cornerstones of Commitment Service Dependability Efficiency Flexibility 12 FULL SERVICE PROVIDER Head Office Calgary , 734-7th Ave SW, Calgary, AB T2P 3P8 Vancouver Regina Toronto

15 Standard Land Since 1994, Standard Land s experience in negotiating land access in highly sensitive environments with multiple stakeholders has served a single purpose: success. Let us put our experience to work for you. CORE SERVICES» Everything Land KEY PERSONNEL Surface Acquisition: Randy Funkhouser Mineral Acquisition: Mikala Hansen Crown & Mineral Administration: Terri Dechka From simple consultation to large-scale project management, Standard Land expertly manages it all: Freehold Mineral Acquisition Crown Sales Surface Land First Nations Consultation Non Routine Project Management Surface and Regulatory Compliance Full suite of additional Services With over 100 employees across Canada, contact Standard Land to discuss your project today. FULL SERVICE PROVIDER OF LAND SERVICES Head Office Calgary Tel: , 734-7th Ave SW, Calgary, AB T2P 3P8 Standard Land Company Inc Winston E. Gaskin, President Calgary: Vancouver: Regina: Toronto:

16 Q1 M&A Report Corporate Financial Services April 30, 2015 CANADIAN M&A METRICS Annual Results Number of transactions Total sample dollar value C$BN $41.0 $24.5 $9.5 $43.4 $10.2 $37.5 $2.7 Total Proven Reserves ($/BOE) $25.68 $24.10 $25.72 $22.93 $18.31 $18.05 $18.42 Proven + Probable Reserves ($/BOE) $16.35 $17.30 $18.29 $17.22 $12.76 $12.68 $13.01 Per flowing BOE Production $56,227 $64,648 $65,093 $73,400 $58,769 $56,079 $61,502 NYMEX WTI ($US/barrel) - Mar/15 $61.80 $79.53 $95.10 $94.21 $97.97 $92.99 $48.64 Cdn Par (C$/barrel) - Mar/15 $65.90 $77.50 $95.03 $86.12 $92.92 $93.38 $49.74 WCS (C$/barrel) - Mar/15 $60.29 $68.48 $78.54 $74.36 $76.21 $78.27 $42.12 NYMEX ($US/MMBtu) - Mar/15 $4.03 $4.30 $4.00 $2.85 $3.75 $4.37 $2.97 AECO-C (C$/MMBtu) - Mar/15 $4.13 $4.00 $3.60 $2.41 $3.22 $4.47 $2.95 USD FX price - Mar/ $20.00 $18.00 $16.00 $14.00 $12.00 $10.00 $8.00 $6.00 $4.00 $2.00 $0.00 Proven + Probable Reserves ($/BOE) $18.29 $17.30 $17.22 $16.35 $12.76 $12.68 $ $80,000 $60,000 $40,000 $20,000 $0 Flowing BOE Production $73,400 $64,648 $65,093 $61,502 $58,769 $56,227 $56, Quarterly Results Q4 13 Q1 14 Q2 14 Q3 14 Q4 14 Q1 15 Q2 15 Number of transactions Total sample dollar value C$MM $4,196 $6,318 $8,423 $3,009 $19,776 $1,686 $1,088 Total Proven Reserves ($/BOE) $18.81 $18.11 $19.24 $18.38 $16.28 $19.50 $16.26 Proven + Probable Reserves ($/BOE) $14.86 $13.60 $12.95 $12.26 $11.63 $14.28 $10.05 Per flowing BOE Production $66,594 $50,055 $63,840 $62,169 $48,098 $61,808 $60,178 Proven + Probable Reserve Life Index (years) Light Oil Weighted transactions (> 70%, $ per BOE) OIL - Proven + Probable Reserves $18.17 $23.68 $20.55 $20.17 $17.71 $15.55 $13.42 OIL - Per flowing BOE Production $89,203 $88,509 $89,492 $100,743 $74,625 $75,682 $82,529 Gas Weighted transactions (> 70%, $ per BOE) Gas - Proven + Probable Reserves $3.14 $5.20 $5.10 $6.83 $5.73 $6.62 $3.32 Gas - Per flowing BOE Production $20,745 $26,674 $31,192 $28,266 $36,345 $41,284 $15,476 Average Prices - Mar/15 Q3 13 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14 Q1 15 NYMEX WTI ($US/barrel) $ $97.46 $98.68 $ $97.16 $73.15 $48.64 Cdn Par (C$/barrel) $ $86.27 $99.73 $ $96.10 $73.16 $49.74 WCS (C$/barrel) $89.21 $69.63 $82.35 $86.15 $80.84 $63.75 $42.12 NYMEX ($US/MMBtu) $3.60 $3.63 $4.90 $4.56 $4.07 $3.95 $2.97 AECO-C (C$/MMBtu) $2.82 $3.15 $4.76 $4.68 $4.22 $4.01 $2.95 USD FX price $16.00 $14.00 $12.00 $10.00 Proven + Probable Reserves ($/BOE) $14.86 $13.60 $12.95 $12.26 $11.63 $14.28 $10.05 $80,000 $60,000 $66,594 Flowing BOE Production $63,840 $62,169 $50,055 $48,098 $61,808 $60,178 $8.00 $40,000 $6.00 $4.00 $20, $2.00 $0.00 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14 Q1 15 Q2 15 $0 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14 Q1 15 Q2 15 Questions? Please contact: Craig (403) ; This report is provided for informational purposes only. While ATB Financial believes the information to be reliable, ATB Financial does not guarantee, or make any representation as to its accuracy or completeness. The information is not to be construed as offering investment or financial advice and ATB Financial will not be liable for any loss or damage resulting from its use.

17 Despite pent up pressures for consolidation, M&A activity has generally remained slow and well below historical norms. M&A activity in Q totaled ~$1.7 billion, relative to ~$6.3 billion in Q (~$3.2 billion excluding CNRL/Devon). Commodity price volatility has created a price impasse between buyers and sellers. Clearing prices over the last few years have generally been dictated by cash flow multiples (~ x), with commodity prices based on the forward strip. Persistent price volatility has deprived the market of a clear forward strip as a common starting point. Typically, public companies must show that an acquisition is accretive both in terms of cash flow per share, NAV per share, and adds to their prospect inventory. Many sellers view current asset bids as being below fair value, holding the expectation that commodity prices will rise in the future. Corporate transactions can also be relatively expensive due to the fact that many stock prices already value a certain oil price recovery and expanded cash flow multiples. As of April 2015 there are few asset packages of size and scale available on the market. Companies looking to the M&A market as a source of capital generally try to sell non-core assets first. Often these asset packages are smaller, unconsolidated, have higher operating costs, and may have higher associated liability issues. These asset packages typically sit on the market without any reasonable bids. Companies are compelled to reasses and eventually expand the scope of their disposition programs. A few general themes have emerged to date on assets that have transacted, including: 1) royalty transactions; 2) transactions with a large stock component; and 3) transactions for high quality oil-weighted assets. Royalties have become popular with investors seeking a low risk virtually direct investment in energy. In 2014 we saw strong demand for royalties, along with multiple joint venture type transactions that ultimately manufactured gross overriding royalties on existing and new production. This theme has continued in 2015, as evidenced by Freehold Royalties $321 million acquisition of Penn West s royalty lands, and $20 million acquisition of royalties on heavy oil production from Marquee Energy. Lightstream also divested a smaller $12 million royalty package earlier this year, while Perpetual Energy recently disposed of $21 million of royalty lands. In most cases, the majority of proceeds from the royalty sale went to debt reduction. Stock transactions allow the seller s shareholders to retain some upside if commodity prices recover, while also allowing the acquirer to manage leverage on the balance sheet. The common ground in a sharebased transaction is generally cash flow multiples, reducing the effect of price volatility. Most of the larger transactions have contained a high stock component, as evidenced by Whitecap s $517 million acquisition of Beaumont Energy (>70% stock), TORC s $128 million Saskatchewan asset acquisition (100% stock), Tourmaline s $256 million acquisition of Perpetual s West Edson assets (100% stock), and Kelt s $307 million acquisition of Artek Exploration by way of plan of arrangement. This is a trend that we expect to continue throughout Your lands of opportunity await We have one of the largest independently-owned portfolios of fee simple mineral title in Canada with approximately 5.2 million acres of fee simple mineral title lands. Please contact us if you are looking to lease simple fee mineral title or enter into other royalty arrangements. 15

18 We have also seen demand for high-netback, low decline, de-risked light oil plays that require moderate capital reinvestment. Typically these transactions are also complementary to the acquirer s existing core strategy, and command a full-price multiple. Examples include Whitecap s acquisition of Beaumont (Saskatchewan Viking producer), TORC s acquisition of SE Saskatchewan oil assets, and Bonterra s $172 million acquisition of Pembina Cardium assets from Enerplus. Single-well risk is less tolerated in the current price environment. Case-in-point is the reduction in $10-$12 million/well Montney or Duvernay exploration activities. These programs are expected to slow and be the focus of larger, better capitalized entities. Access to capital remains selective, and will be a key driver of M&A activity going forward. Although the total value of public equity raised in Q was slightly higher than last year, the number of new issues is meaningfully lower, with a majority of the equity being raised by larger players such as Encana ($1.4 billion), Cenovus ($1.5 billion) and Baytex Energy ($632 million). The remaining public equity has generally been focused on select names and often accompanied by a specific use of proceeds. However, there is a certain amount of cautious optimism emerging in the equity space. Peyto and NuVista recently raised $172 million and $110 million (common and flow-through), respectively, through bought-deal financings with proceeds directed to reducing bank indebtedness and general corporate purposes. Traditional private equity is generally looking for quality pure-play deals that do not require an extensive turnaround. Private equity capital continues to evaluate opportunities, but the lack of material asset packages that meet investment criteria on the market has resulted in minimal transactions being cleared. There are also a number of firms looking to buy distressed assets, albeit at significantly reduced valuations. Availability of bank capital may also have a larger influence on the M&A market going forward. Recently, selling companies have had to be cognizant to balance disposition proceeds with bank lending value. If a company had its bank facilities evaluated last year on a higher price deck, selling assets may reduce available credit facilities by more than the disposition proceeds. A material disposition could also trigger an entire borrowing base redetermination on a lower price forecast. However, many companies are now undergoing their spring borrowing base review, and higher-levered companies that did not increase reserves last year may be forced to divest assets or pursue other capital solutions. Lenders have been demonstrating a willingness to relax certain covenants, at least temporarily. This issue will likely become more pressing if the commodity price downturn persists, as some companies will be challenged to replace reserves this year given the lack of drilling activity. Overall, we expect M&A activity to pick up as we exit Q2 and continue to increase if commodity prices remain relatively depressed and as volatility settles. Some companies with higher leverage and without access to traditional capital will be forced to start selling their higher-quality assets. Furthermore, sellers will have to start re-adjusting their price expectations if signs continue to point to a prolonged industry downturn. m ATB Corporate Financial Services Land Environmental Archaeology GIS Analysis / UAV Mapping Calgary 30 Over 30 Years of Service 16 British Columbia St. Fort St. John BC V1J 3Y6 T: F: Ad #3.indd 1 Alberta Box Ave. Fairview, AB T0H 1L0 T: F: Toll Free: Visit us online at 12/17/ :43:34 AM

19 Summary Judgement on Contested Amounts Owing Under Natural Gas Processing and Related Agreements Case commented on: SemCAMS ULC v Blaze Energy Ltd, 2015 ABQB 218 This is an important judgement on the interplay between the rules for the interpretation of contracts and the post Hryniak law on summary judgement: see Hryniak v Mauldin, 2014 SCC 7. The short version of the holding is that a producer cannot avoid summary judgement for outstanding amounts owing under a natural gas processing or related agreement on the basis that the producer has called for an audit of the operator s accounts or otherwise disputes the amounts owing at least where the agreements in question clearly oblige producers to settle invoices promptly, notwithstanding the existence of a dispute as to whether the invoices properly reflect the amounts owing. Blaze was the successor in interest to a number of agreements pursuant to which SemCAMS provided gas transportation, gas processing and contract operating services. These agreements all provided, as one might expect, that producers such as Blaze would promptly settle their accounts once properly invoiced. Given the challenges involved in both assessing actual costs and allocating those costs to particular gas streams, the agreements in question provided both a means for truing up accounts (13th month adjustment) and a means for allowing producers to question the accounts by way of audit. The action related to invoices served by SemCAMS between July 2012 and April 2013 for a total of $6.9 million; remarkably (at para 11) Blaze has made no payments whatsoever to SemCAMS, despite the fact that SemCAMS has been processing its gas since June Blaze had filed a counterclaim, alleging, inter alia, wrongful shutting in of its wells. Some, but importantly not all, of the agreements expressly stated (at para 13) that the Producer shall not be allowed to withhold payment of any portion of the bill presented by the Operator, due to a protest or question relating to such bill ; and others provided that the Operator can maintain an action for unpaid amounts as if the obligation to pay such amount and the interest thereon were liquidated demands due and payable on the relevant date such amounts were due to be paid, without any right or resort of such Producer to set-off or counterclaim. OIL & GAS MINERAL RIGHTS & ROYALTY MARKETPLACE BUY SELL LEASE SEARCH 400+ PROPERTIES IN NORTH AMERICA OWNERS PUBLISH ADS FOR FREE BUYERS SUBSCRIBE TO VIEW FOLLOW US. WE CAN GET YOU THERE. 17

20 The evidence before the Court on this application for summary judgement consisted of affidavits by an official of each company and the transcripts from the questioning on those affidavits. Justice Jo Anne Strekaf summarized (at para 24) the tests for summary judgement drawing on the Court of Appeal s decision in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 as follows: Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. The modern test for summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record. On this record, SemCAMS sought judgement for the full invoiced amount (subject to one adjustment) on the basis that the contracts contemplated immediate recovery notwithstanding the potential for subsequent adjustments (at para 38). Blaze on the other hand argued that SemCAMS interpretation of the contracts led to an absurdity since it suggests that Blaze would be obligated to pay whatever SemCAMS invoiced and that underpinning the obligation to make a payment under the agreements is the requirement that the invoices reasonably reflect the goods or services that were provided (at para 40). Justice Strekaf rejected Blaze s absurdity argument. She concluded (at para 48) that: It can be inferred that the Operator needs to be able to rely on a reliable cash flow. If there was a dispute between the Operator and a Producer as to the amounts owing, the parties could have decided to allocate the risk so that either the disputed amount could be withheld by the Producer pending resolution of that dispute, or that it would be paid and subsequently adjusted following resolution of that dispute. The language used in this case suggests that they chose the latter approach. This arrangement is not an unreasonable allocation of risk. In doing so Justice Strekaf immediately acknowledged (at para 49) that this was perhaps an unusual situation: Typically in order for a party who provides services under an agreement to collect on an unpaid account that they must 18

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