The Magazine of the Canadian Association of Petroleum Landmen December 2014 THE NEGOTIATOR The NOA Debate Transfer Date Versus Effective Date The CAPL Farmout and Royalty Procedure Entering the New Millennium The Ernst Decisions Revisiting Regulatory Negligence
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The Magazine of the Canadian Association of Petroleum Landmen
December 2014
THE NEGOTIATOR
The NOA DebateTransfer Date Versus Effective Date
The CAPL Farmout and Royalty Procedure
Entering the New Millennium
The Ernst DecisionsRevisiting Regulatory Negligence
For information on the services McMillan’s Energy Group can provide, please visit our website or contact Michael Thackray, QC.
Your energy partnerBuilding on over 20 years of recognized oil and gas leadership and valued relationships with CAPL, McMillan continues to be your trusted and experienced energy counsel.
Social Content EditorJason Peacock [ph] 403-691-7077
Editorial CommitteeJosh Lewis [ph] 403-233-4446Amy Kalmbach [ph] 403-619-2868Nathan Roberts [ph] 403-268-3006Dinora Santos [ph] 403-470-1558
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The contents of this publication may not be reproduced either in part or in full without the consent of the publisher.
2014–2015 CAPL Board of DirectorsPresident
Michelle RadomskiVice-President
Nikki Sitch, P.Land, PSLDirector, Business DevelopmentAlberta & British Columbia
Andrew WeldonDirector, Business DevelopmentSaskatchewan & Alberta Oilsands
Michelle CreguerDirector, Communications
Brad Reynolds, P.LandDirector, Education
Connie De CiancioDirector, Field Acquisition & Management
Paul Mandry, PSLDirector, Finance
Larry Buzan, P.LandDirector, Member Services
Kent GibsonDirector, Professionalism
Joanna SheaDirector, Public Relations
Gary Richardson, PSLDirector, Technology
Mandy CooksonSecretary/Director, Social
Andrew WebbPast President
John Covey
Readers may obtain any Director’s contact information from the CAPL office. Suite 350, 500 – 5 Avenue S.W. Calgary, Alberta T2P 3L5 [ph] 403-237-6635 [fax] 403-263-1620www.landman.ca
THE NEGOTIATORThe Magazine of the Canadian Association
of Petroleum Landmen THE NEGOTIATOR
Features December 2014
2 NOA To Be or Not To Be Effective on This Day!
Michelle Radomski
7 Upgrading to a “Smart Phone” Jim MacLean
10 Revisiting Regulatory Negligence: The Ernst Fracking Litigation
Martin Olszynski
In Every Issue18 Board Briefs
20 Get Smart
23 The Negotiator’s Message From the Board: Member Services
25 Roster Updates
31 The Social Calendar
32 CAPL Calendar of Events
32 December Meeting
32 January Meeting
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There has been much debaTe and debacle over The years relaTed To accounTing adjusTmenTs for the period
between the Transfer Date and the Binding Date of
a Notice of Assignment (NOA).
There are two schools of thought:
1. On and after the Binding Date, the Assignee
becomes the recognized party to the Master
Agreement with respect to any and all matter
or thing occurring or accruing beyond the
Transfer Date, which by definition means “the
effective date of the transfer of the Assigned
Interest”. Very important to note that it is not
defined as the date of the transfer (in other
words the closing date); but, instead, that date
the transfer was made effective (sometimes
also called an adjustment date).
2. Alternatively, the Transfer Date has no appli-
cation to the Third Party. All matter or thing
which accrued prior to the Binding Date is for
the Assignor’s account and any adjustments
related to the period between the Transfer Date
and Binding Date are to be settled between
the Assignor and Assignee. After all, Clause
8 of the Notice of Assignment states “… In
addition, Assignor and Assignee agree that
they shall be solely responsible for any adjust-
ment between themselves with respect to
the Assigned Interest as to revenues, benefits,
costs, obligations or indemnities which accrue
prior to the Binding Date” – but wait, this will
be addressed below!
The act of novationIt is of fundamental importance that everyone
remembers that a NOA is not a standalone docu-
ment and that its use, application, and effect
are dictated by the Assignment Procedure. It is
equally important to remember that the NOA is
WriTTen by
MICHELLE RADOMSkIWiTh Thanks To Paul negenman, jim maclean & lynn gregor
NOA To Be or Not To Be Effective on This Day!
HMA Land Services is now RPS HMA. At RPS HMA we place significant value on developing and maintaining excellent relationships with our clients and industry partners. Our team is dedicated to providing the same level of professional service, reliability and expertise that our clients have come to expect from us.
Pipeline Exploration & Production ( E&P) Telecom Power
LAND ACQUISITIONSFIRST NATIONS CONSULTATIONPROJECT MANAGEMENTAER CROWN APPLICATIONS
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materially to address recognized issues, such as Clauses 1.02, 3.01,
3.02, 5.05, 6.02, 6.06, 8.01 and 9.03. New provisions were added to
address other emerging issues, including the addition of func-
tionality to address horizontal wells, test well programs, re-entry
Programs, the potential elimination of separate trust agreements
relating to typical earning agreements, royalty allocations respect-
ing horizontal wells drilled partially on Royalty Lands and partial
interest farmouts. As shown in Addendum III at the end of the
annotated draft, the shift of new procedural content to the docu-
ment admittedly adds length, but simplifies finalization of the
Head Agreement.
There has also been a major expansion to the annotations in
ways that will benefit users of all experience levels with respect
to both new agreements that use the updated Farmout & Royalty
Procedure and older transactions. The annotations include infor-
mation on the evolution of the clauses as a reference tool when
considering issues under current and older agreements, together
with an examination of the relevant case law. A special area of
focus is the inclusion of ideas that might be considered by negoti-
ators and contracts personnel when structuring new transactions
using either the new document or the 1997 version.
As users routinely include a schedule of elections in their
agreements, rather than the CAPL document, we believe that the
benefits of enhanced coverage and clarity in this new “car manual”
more than offset any negative impact of the increased length.
some concepts can help you address issues TodayThere are many provisions in the draft update that can be of
immediate benefit resolving existing disputes or to prepare new
agreements. Examples of these include:
• various modifications to Article 3.00 to address such topics as:
(i) difficulties in commencing operations; (ii) the interrelationship
between “Complete, Cap and Abandon”, the obligation to evaluate
the Test Well to the Farmor’s reasonable satisfaction and zonal
testing requirements; and (iii) the finality of the Farmee’s well
evaluation obligations in a multi-zone operating environment;
• various modifications to Article 5.00 to address such topics as:
(i) Royalty Wells that straddle Royalty Lands and other lands;
and (ii) optionality to allocate costs through the First Point
of Measurement, including special provisions respecting the
handling of frac water during the initial cleanup period;
• the inclusion of modifications to Clause 6.06 to address an
additional well in the same formation as the productive BPO
Earning Well;
• a major expansion to the acquisitions that are exempt from the
Area of Mutual Interest requirements of Article 8.00;
• modifications to Clause 9.03 to offer optionality for the provision
of well information from additional Royalty Wells to the Farmor;
• the inclusion of a new Article 10.00 that addresses the possibil-
ity that the Farmor may hold less than a 100% Working Interest
with other third parties under an existing agreement;
Fort Nelson Fort St. JohnGrande Prairie Swift CurrentCalgary Edmonton 1 800 478 6162 | canam.com
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• a new Clause 16.02 that adds mutuality to the Reserved
Formations Article by having obligations flowing back to the
Farmout Lands from the applicable Reserved Formation parties;
• modifications to Article 18.00 to offer functionality restricting
drilling during the earning phase and for the circumstance in
which a party other than the Operator/Farmee retains respon-
sibility for ongoing administration of the Title Documents;
and
• an expansion to the miscellaneous annotations at the end of
the document that outline certain circumstances in which
it may be appropriate to deviate from the provisions of the
Farmout & Royalty Procedure.
but some Things remain the sameThe document continues to be designed to provide a platform that
allows the parties to focus on the business issues associated with
a particular transaction, without attempting to pre-structure the
business components of the transaction.
As shown in the sample agreements in Addendum III to the
document, the document addresses the procedural elements that
do not vary materially in agreements in a way that enables the
parties to complete their documents efficiently and effectively,
while retaining full control over the business variable elements of
their transactions.
our ask of youThe initial industry draft was issued in June. Our intention is to
complete the document in 2Q2015, so that users will have the
benefit of the document for the 2015-16 winter drilling season.
Given the reality that industry will be using the final version
of this document in due course, it is mutually beneficial for a crit-
ical mass of industry to invest time in optimizing the document
during its initial stages.
Your feedback on the document during its early stages will
help us enhance the quality of the document materially and
use project resources much more efficiently. More importantly, it
will shorten the cycle time to project completion and facilitate a
timely and orderly transition to the new document for the collec-
tive benefit of our industry.
Obtaining familiarity with the document in the near-term also
better enables users to understand and address issues with your
current agreements and positions users to apply the document
more quickly following completion.
Parallel Project to update 2007 caPl operating ProcedureTo optimize alignment between this document and the Operating
Procedure in the future, we are proceeding in parallel with a
modest update to the 2007 CAPL Operating Procedure that will be
completed early in 2015.
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The primary motivation for this update is to make substantive
changes to offer greater functionality for horizontal wells in the
context of an increasing number of “long reach wells” on resource
plays. Many of these changes are included as enabling provisions
to minimize the need for consequential changes in the document
if the parties were to create custom provisions in their Agreement
in due course to address such matters as multiple well drilling or
completion programs and specialized provisions addressing the
development of well pads. These changes offer a more appropri-
ate foundation for complex shale projects without attempting
to predict or prescribe detailed project specific development
processes that are more appropriately left for the parties to nego-
tiate in their particular circumstances.
The other proposed changes are typically very specific, minor
adjustments to the applicable provision or the related annota-
tions. They have been included to reflect experiences to date
with the document, intervening legal decisions and the desire to
minimize the number of corporate preference type changes being
proposed by industry for typical transactions.
To attempt to simplify the review effort significantly, we
have presented the proposed changes in a table format in the
context of the corresponding provisions in the 2007 document,
with an identification of the specific proposed change through
underlining or strikethrough text. The actual changes are more
modest than what may first appear when printing the table
because the presentation of the changes within the existing
provisions and the inclusion of the rationale for each change.
Proceeding with an updated version of the CAPL Operating
Procedure in parallel with the project to update the 1997 CAPL
Farmout & Royalty Procedure will optimize the alignment between
the two documents. One of the other anticipated benefits of this is
the facilitation of a smooth transition directly from the 1990 docu-
ment into the modestly updated 2014 CAPL Operating Procedure
for users that have yet to embrace the 2007 CAPL Operating
Procedure.
Our expectation is that the quality of the two updated CAPL
documents resulting from the current initiatives will be such
that future modifications to each document will be much more
modest than the “extreme home makeovers” of the 1990 CAPL
Operating Procedure and the 1997 CAPL Farmout & Royalty
Procedure. This conclusion is reinforced when one looks at the
relatively modest modifications being proposed to the 2007 CAPL
Operating Procedure.
in the Words of Wayne gretzkyWhen Wayne Gretzky was a boy, he would spend a lot of time
practicing hockey with his dad, Walter. Whenever Walter asked,
“Where do you skate?”, Wayne consistently replied, “To where the
puck is going, not where it’s been.”
We can learn something from that simple story. Our business
continues to evolve in significant ways, and our agreements need
to evolve with the needs of the business. This reflects the reality
that our agreements revolve around the business needs, not the
other way around.
The updates to the CAPL Farmout & Royalty Procedure and
the CAPL Operating Procedure are instruments of opportunity.
They allow us to embrace the changes inherent in our business
and, to at least some degree, anticipate those changes and facili-
tate them in a way in which we are proactive, rather than reactive.
However, we can only optimize our gains if we collectively recog-
nize this opportunity and seize it.
As proud as I am of the 1997 CAPL Farmout & Royalty Procedure
and the enhanced efficiencies it has provided to our industry, the
reality is that it is analogous to a 2004 Blackberry. It is now time
to make a step change and move to a “smart phone” that offers
much greater functionality, that honours the past by building on
the prior, solid foundation of work and that addresses the biggest
fear of users by being intuitive in use.
We look forward to working with you as our journey with these
documents moves to its next phase. Together, we can truly make
a difference to our companies, our profession and our industry. m
Jim MacLean
Fourth Annual CAPL Ski Tripsave the date! The FourTh annual caPl ski TriP will be held on
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on sePTember 15, 2014, The alberTa courT oF aPPeal released iTs decision in ERNST V. ALBERTA (Energy Resources Conservation Board) 2014 ABCA 285.
On November 7, 2014, Chief Justice Whitmann concluded that
the claim against Alberta Environment should not be struck
and awarded Ms. Ernst her costs at triple the column she
received in the 2013 action. This article will first review the
September 2014 Decision and then provide discussion around
the November 14 Decision.
backgroundMs. Ernst owns land near Rosebud, Alberta, and is suing EnCana
Corporation, the ERCB (now the Alberta Energy Regulator) and
Alberta Environment (now Alberta Environment and Sustainable
Resources Development) for negligence in relation to the alleged
contamination of her groundwater as a result of EnCana’s hydrau-
lic fracturing (fracking) activities in the area. With respect to the
ERCB specifically, Ms. Ernst’s alleged that the regulator, having
been informed by her of potential groundwater contamination,
failed to respond in a reasonable manner (i.e. failed to investi-
gate the incident). The ERCB filed a preliminary motion to have
the action against it struck out. Chief Justice Wittmann agreed
that this particular negligence claim was not supported in law:
he found that the ERCB owed no private law “duty of care” to
Ms. Ernst and that, in any event, any claim was barred by s 43 of
the ERCB’s enabling legislation (see Ernst v. EnCana Corporation,
2013 ABQB 537). The Alberta Court of Appeal dismissed Ms. Ernst’s
appeal. This article considers the regulatory negligence aspects of
both the Queen’s Bench and Court of Appeal decisions.
a Primer on the law of negligenceIn Canada, a plaintiff has to prove five elements in order to estab-
lish negligence: (1) that the defendant owed the plaintiff a duty
of care; (2) that the defendant breached the applicable standard
of care; (3) that the plaintiff suffered damages; (4) that these
damages were caused by the defendant’s breach; and (5) that the
damages are not too remote. The Ernst decisions are concerned
only with the first and what is widely regarded as the most
Revisiting Regulatory Negligence: The Ernst Fracking Litigation
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challenging element in proving negligence: whether the ERCB
owed Ms. Ernst a duty of care in the first place.
The applicable legal framework was set out by the Supreme
Court of Canada in Cooper v. Hobbart, 2001 SCC 79:
[30] … At the first stage of the [Anns/Cooper] test, two ques-
tions arise: (1) was the harm that occurred the reasonably
foreseeable consequence of the defendant’s act? and (2)
are there reasons, notwithstanding the proximity between
the parties established in the first part of this test, that
tort liability should not be recognized here? The proximity
analysis… focuses on factors arising from the relationship
between the plaintiff and the defendant. These factors
include questions of policy, in the broad sense of that word.
If foreseeability and proximity are established…a prima
facie duty of care arises. At the second stage…, the
question still remains whether there are residual policy
considerations outside the relationship of the parties that
may negative the imposition of a duty of care. [Underlining
in original]
With respect to proximity, the Supreme Court has stated that this
involves looking at “expectations, representations, reliance, and
the property or other interests involved” (Cooper). In the specific
context of regulatory negligence, the Supreme Court has recently
distinguished between two situations: (1) where the alleged duty
of care is said to arise explicitly or by implication from the statu-
tory scheme (which the Court admits will be rare); and (2) where
the duty arises from interactions between the claimant and the
regulatory authority (most relevant here) (see R. v. Imperial Tobacco
Canada Ltd., 2011 SCC 42). In all cases, the driving determination is
whether “it is just and fair having regard to that relationship [between
plaintiff and defendant] to impose a duty of care in law upon the
defendant” (Cooper).
As for the second, “residual policy considerations stage,” the
Supreme Court in Hill v. HamiltonWentworth Regional Police Services
Board, 2007 SCC 41 (a case where police officers were found to owe
a duty of care to the suspects of crime) made clear that “even if a
potential conflict could be posited, that would not automatically
negate the prima facie duty of care… A prima facie duty of care will
be negated only when the conflict, considered together with other
relevant policy considerations, gives rise to a real potential for
negative policy consequences… a duty of care in tort law should
not be denied on speculative grounds.”
The Ernst decisionsPerhaps the most striking aspect of both decisions is how much
space is devoted to the analysis of the ERCB’s duty of care in light
of both courts’ conclusion that any claim against the ERCB was
barred by s 43 of the Energy Resources Conservation Act in any event
(since repealed and replaced with s 27 of the Responsible Energy
Development Act).
There are, of course, numerous good reasons why a court
might choose to address all of the issues in a case such as this
one, not least of which is the fact that there is another regulator –
Alberta Environment – being sued for negligence here, one which
has not applied to have the action against it struck. Perhaps the
Courts wanted to make clearer to counsel the framework within
which the action against Alberta Environment will be assessed
and give some sense of their predisposition to such actions. Along
these lines, it is reasonable to suggest that the Court of Appeal’s
decision to state explicitly that which was not at issue before it,
including “whether the pleading against the defendant Alberta
could be struck as being frivolous or vexatious” (Ernst v. Alberta at
para 9), reflects judicial scepticism.
As for the duty of care analysis, although the outcome is the
same in both decisions the analysis is actually quite different.
Chief Justice Wittmann begins and ends his analysis at the first
stage of the Anns/Cooper test. Situating Ms. Ernst’s relationship
with the ERCB as more like that between the unsuccessful
investors and the Registrar of Mortgage Brokers in Cooper than
the miners to whom government inspectors were held to owe a
duty in Fullowka v Pinkerton’s of Canada Limited, 2010 SCC 5, the
Chief Justice concluded that there was “no sufficient proximity
to ground a private duty. Nor was there a relationship estab-
lished between Ernst and the ERCB outside the statutory regime
which created a private duty” (Ernst v. EnCana at para 28). It was
thus “unnecessary to determine whether the harm to Ernst was
foreseeable. It is also unnecessary to consider the second part of
the Anns test, that is, whether there would be any policy reason,
assuming proximity, to [not] impose a private duty” (at para 29).
The Court of Appeal, for its part, seemed to jump immedi-
ately to the second, “residual policy considerations” stage, laying
out a series of reasons reflected in the case law as to why any
prima facie duty of care owed by regulators is usually negated.
These include the difficulty of distinguishing between policy and
operational decisions (the former being immune from liability),
the potential for conflict between private and public duties, and
indeterminacy problems (Ernst v. Alberta at para 17). In the Court
of Appeal’s view, many of these considerations were relevant to
the case at bar:
[18] Forcing the Board to consider the extent to which it
must balance the interests of specific individuals while
attempting to regulate in the overall public interest would
be unworkable in fact and bad policy in law. Recognizing
any such private duty would distract the Board from its
general duty to protect the public, as well as its duty to deal
fairly with participants in the regulated industry. Any such
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individualized duty of care would plainly involve indeter-
minate liability, and would undermine the Board’s ability
to effectively address the general public obligations placed
on it under its controlling legislative scheme.
One might have expected the following paragraphs to elaborate
on these otherwise fairly generic concerns. The Court of Appeal,
however, then switched gears entirely and simply concluded
that Chief Justice Wittmann “correctly applied the test for deter-
mining whether the Board owed a private law duty of care to
the appellant” (Ernst v. Alberta at para 19). This conclusion is
jarring because, as noted, the Chief Justice did not even engage
the second stage. Rather, he focused on proximity and, adopting
what could be called the “spectrum” approach applied by Justice
Cromwell in Fullowka, concluded that the interactions between
Ms. Ernst’s and the ERCB were more like those of the unsuc-
cessful plaintiffs in Cooper than those of the miners in Fullowka.
The Court of Appeal actually dismissed Fullowka as an “anomaly”
(Ernst v. Alberta at para 16), which if anything suggests that they
didn’t agree with the Chief Justice’s approach at all.
discussion on the september 15 decisionCanadian law professor Bruce Feldthusen has observed that
“[d]ecoding the law governing the negligence liability of statutory
public authorities in Canada has always been a challenge,” and
has suggested that it may be time revisit the basis upon which
liability for regulatory negligence will be founded.1 Certainly,
recent events like the Lac Megantic disaster in Quebec and the
Mount Polley spill in British Columbia do point to something
rotten within the modern regulatory state to which the common
law of torts could potentially respond.
The Ernst case may or may not be the right one for such a
discussion. At the very least, however, it bears recalling that the
Supreme Court’s decision in Cooper is valued first and foremost
for bringing some much needed transparency to the duty of care
analysis. It would be preferable, then, for the Courts to apply the
Anns/Cooper test in a predictable, sequential manner – something
that both Courts failed to do here.
As noted above, the first step is to determine foreseeability of
harm. Contrary to the Court of Appeal’s assertion (Ernst v. Alberta
at para 16), this is actually something that most regulatory
… a fair reading of Hill suggests that an equally important factor was the
very significant personal interest (i.e. liberty) at stake.
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Surface Acquisitions Pipeline Right-of-Way Crown Sales Mineral Acquisitions Rent ReviewsConfidential Deals Damage Settlements Public Consultant & Notification
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negligence plaintiffs have very little difficulty establishing (see
e.g. Cooper at para 42, Hill at para 32, Imperial Tobacco at para 57).
It is precisely because foreseeability represents a relatively low
bar that finding a prima facie duty of care requires both foresee-
ability and proximity. As in Cooper, then, it seems reasonably
foreseeable that Ms. Ernst would suffer some harm if the ERCB
were negligent in carrying out its duties, especially with respect
to enforcement.
With respect to proximity, the “spectrum of regulatory rela-
tionships” approach applied by Justice Cromwell in Fullowka and
adopted by Chief Justice Wittmann may be a good place to start
but it also has the potential to mask important distinctions.
For example, although there were differences in the relationship
and interactions between the plaintiffs and the relevant public
authorities in Cooper (the registrar of mortgage brokers and
investors) and Hill (the police and their suspects), a fair reading
of Hill suggests that an equally important factor was the very
significant personal interest (i.e. liberty) at stake. Arguably, Ms.
Ernst’s interest in the safety of her water supply is more like
the interest in Hill than in Cooper, which was a case for pure
economic loss – a category of negligence claims that Canadian
courts are particularly wary of. Another seemingly relevant
distinction between Cooper and Ms. Ernst is that the plaintiffs in
Cooper were voluntary investors, whereas landowners in Alberta
cannot refuse oil and gas activity on or around their lands and
are therefore entirely dependent on the adequacy of the regula-
tory regime.
Turning to the second, “residual policy considerations” stage,
it is not obvious to me how owing a private law duty to those
individuals particularly vulnerable or susceptible to a regulator’s
negligence would be unworkable. Generally speaking, regulators
like the ERCB and Alberta Environment are not monolithic entities
– they have branches that carry out specific functions, includ-
ing a compliance and enforcement branch. When this branch is
engaged, the problem of indeterminacy would seem to be largely
resolved: compliance activities are concerned with specific inci-
dents at discrete locations. The Supreme Court’s approach in Hill,
which affirmed the existence of a tort of negligent investigation
but also recognized the role of the standard of care in mediat-
ing the spectre of liability (i.e. perfection is not required) seems
perfectly suited for such situations. At the very least, however,
defendants should have to explain – and the courts should set
out in their reasons – the overarching policy considerations that
justify negating any prima facie duty of care in the specific instance
before them.
The Alberta Court of Appeal is certainly correct that there are
a number of reasons why a duty of care is not generally placed on
a regulator (Ernst v. Alberta at para 17), but it is equally true that
sometimes it is, and that regulatory negligence is a recognized
tort in Canada.
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discussion on november 7, 2014 decisionThis decision would seem to set a new standard for the transpar-
ent and thoughtful analysis of the duty of care. Substantively, and
beginning with the first stage of the Anns test, I do have some
concerns about the potential implications of an analysis that
seems to hinge on whether a regulator or other agency puts actual
boots on the ground (the key factual difference between the ERCB
and Alberta Environment). As the Chief Justice observed in Ernst I,
a private duty cannot arise simply because an individual commu-
nicates with a regulator (at para 28); the flip side of this is that a
duty of care should not be avoidable simply by refusing to show
up. In my view, there are other relevant factors that can support
or negate a conclusion of sufficient proximity. For instance, it
seems relevant that in Alberta landowners cannot refuse oil and
gas activities on their lands and are therefore entirely dependent
on the regulators to ensure that such activities are conducted in a
safe and environmentally sound manner.
With respect to the second stage, the Chief Justice was right
to not blindly accept Alberta Environment’s arguments about
potential conflict between private and public duties and indeter-
minacy. As I noted in my previous post, the Supreme Court has
been clear that the “residual policy consideration” stage is not the
place for speculation and generalizations (see e.g. Hill). The Chief
Justice was also correct, in my view, to remind government coun-
sel that finding a duty of care is not dispositive of the negligence
action – a plaintiff must still prove that the defendant breached
the applicable standard of care and that this breach caused the
plaintiff’s damage. This is a complete response to those who
argue that such litigation imposes undue hardship on govern-
ment regulators. m
Martin Olszynski
notes1. Bruce Fledthusen, “Simplifying Canadian Negligence Actions
Against Public Authorities – or Maybe Not” (2012) Tort L Rev 176
at 176 and 184.
* For further reading and updates to this case, please see www.
ablawg.com.
Martin Olszynski is an Assistant Professor of Law
at the University of Calgary, Faculty of Law.
A previous version of this article first appeared in
ABlawg, the University of Calgary Faculty of Law Blog.
* Please note that white clothing is required for racquet sports at
the Glencoe Club. m
LALP14898 Oil and Gas Ad for CAPL • The Negotiator Magazine Ad – Half page
LALP14898_Oil and Gas CAPL Negotiator ad HP6 Print Scale: 100% Op: Apiradee
Trim Size: 7.25”W x 4.75”H Bleed: -
Colour: 4c Line Screen: 100 line Logos: vector
Fonts: Helvetica, MundoSans, AideticNeo,
T 604.629.2060 F 604.629.2064
Proof: 605/15/14 @ 12:10 PM
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Proof read/Spell check:CLIENT:
With extensive experience in the oil and gas sector and a strong energy regulatory practice, our Calgary office is perfectly positioned to assist Western Canada’s energy industry.
YOU HAVE A LOT ON YOUR MIND – WE CAN HELP
Paul Negenman Jason Paton Bernadita Tamura-O’Connor
Randy Madsen Jay Lalach#1 regional law fi rm in British Columbia, Alberta and the territories, Canadian Lawyer magazine (2010-2014).
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2014 Merit Awards
Time to nominate!your 2014/2015 commiTTee Will be Pleased To receive nominaTions (award category descriptions and
forms to be filled out are soon to be available on the CAPL website)
for all awards. Ask yourselves: Who do I see as a deserving recipient
for an award for 2014? If you have received any such awards in
the past (and we have a bevy of recipients) – ask yourselves who
most resembles you? The brightest, the best and the most devout
members, corporations and individuals associated with CAPL
deserve our recognition. All nominations are kept confidential.
By policy, the Merit Awards Committee itself cannot make any
nominations so we depend on you to provide these to us.
Questions – please contact any of the following volunteers:
Larry Buzan (Chairperson), Robyn Baron, Suzanne Stahl, Rob
Pettifer, Brad Reynolds or Kent Gibson, Director, Member Services. m
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Board BriefsThe key discussion items at the
caPl board of directors’ meeting
held november 4, 2014 at
Talisman’s offices were as follows:
In Attendance Absent Guests M. Radomski B. Reynolds Joanna Shea Kevin Egan
A. Weldon G. Richardson Michelle Creguer
J. Covey M. Cookson Nikki Sitch
C. De Ciancio A. Webb
K. Gibson L. Buzan
P. Mandry
• Kevin Egan was invited to present a leadership training course
that he recommends adding to the educational courses currently
offered by the CAPL. The course is run by Knightsbridge and
would cater to more senior level CAPL members. The course
would run over two days and it is proposed that the content be
customized for landmen at an additional cost.
• Larry Buzan, Director of Finance, presented a Treasurer’s Report
as at October 30, 2014, showing CAPL investments totalling
$979,188.46 CDN along with a cash balance of $258,000.74
CDN having paid out $362,274.90 in the month of October for
a total of CAPL investments of $1,237,189.20 CDN. The CAPL
Scholarship Fund has a balance of $244,137.41 CDN. There were
no transfers made since the last report.
• Kent Gibson presented five Active, and three Student member-
ship applications to the Board of Directors, which were
subsequently approved.
• Mandy Cookson advised the Board that the new website is
scheduled to launch on December 1. The new website will
include a cleaner and more user friendly design with current
industry updates on the front page and a suggestion box area
for members to submit ideas, comments, etc. to the Board.
There are ongoing development plans after the launch to
Average Prices - Sept 2014 Q2 13 Q3 13 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14Canadian Par / Cdn Light (C$/bbl) $92.16 $104.71 $86.28 $99.80 $104.18 $97.75 -Canadian Heavy (C$/bbl) $79.30 $93.01 $69.75 $84.13 $90.73 $84.40 -AECO gas price average (C$/mcf) $3.54 $2.45 $3.52 $5.75 $4.69 $4.02 -USD FX price (month end in C$) 1.0512 1.0285 1.0636 1.1048 1.0661 1.1208 1.1275
Questions? Please contact:Craig Mathison @ (403) 731-3822; [email protected] 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.
$17.51$16.35
$17.30$18.29
$17.22
$12.76 $12.83
$0.00
$2.00
$4.00
$6.00
$8.00
$10.00
$12.00
$14.00
$16.00
$18.00
$20.00
2008 2009 2010 2011 2012 2013 2014
Proven + Probable Reserves ($/BOE)
$59,530$56,227
$64,648 $65,093
$73,400
$58,769 $57,724
$0
$20,000
$40,000
$60,000
$80,000
2008 2009 2010 2011 2012 2013 2014
Flowing BOE Production
$11.67$10.52
$14.86
$13.60$12.95
$12.26$11.32
$0.00
$2.00
$4.00
$6.00
$8.00
$10.00
$12.00
$14.00
$16.00
Q2 13 Q3 13 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14
Proven + Probable Reserves ($/BOE)
$51,711$55,813
$66,594
$50,055
$63,840 $62,169
$48,836
$0
$20,000
$40,000
$60,000
$80,000
Q2 13 Q3 13 Q4 13 Q1 14 Q2 14 Q3 14 Q4 14
Flowing BOE Production
October 31, 2014CANADIAN M&A METRICS
Q3 M&A Report CorporateFinancial Services™
PEACEMerry Christmas, from our family to yours.
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Preparing for a Surface Rights Board Hearing (PSL®)
december 04, 2014 8:30 a.m. to 4:30 p.m.
This course will begin by covering the types of surface rights board
hearings, including compensation, rent review, damage claims
and back rent. The next section will focus on the structure of the
hearing and deal with procedural elements, evidence taken under
oath, direct and cross examination of witnesses and questions
from the board. From there the course will focus on evidentiary
issues like the burden of proof and discuss privacy issues before
closing by discussing the orders ultimately issued by the board.
Overcoming the Five Dysfunctions of a Team
december 09, 2014 8:30 a.m. to 4:30 p.m.
This seminar is built on the assumption that great teams
attract great team players, and that great team players on great
teams achieve more collectively than they could on their own.
Using Patrick Lencioni’s book The Five Dysfunctions of a Team as
a template, this day long seminar teaches participants how to
strengthen their teams, improve their self-awareness and sharpen
their leadership skills. The course also includes a number of prac-
tical exercises that can be used to overcome hurdles that stand in
the way of building an effective team.
Directive 056: ERCB Energy Development Applications Public
Consultation Requirements (PSL®)
december 10, 2014 8:30 a.m. to 4:30 p.m.
The AER (the “Board”) believes that appropriate notification and
public consultation must be conducted well in advance of the
submission of an application to the AER. It must be thorough
enough to allow all parties who are affected to be sufficiently
aware of not only the proposed project, but the Board process
Get SmartThe caPl education committee is pleased to present the following courses:
Pursuing Perfection
www.synergyland.ca | 1.877.961.LAND (5263)
SYNERGY LAND would like to remind all of our CAPL colleagues that we are
ready and able to assist with your mineral leasing needs. Several of our agents are
well versed in negotiating freehold mineral agreements, and we attend land
sales in all of the Western Provinces.
Call James McCorquodale at (403) 930-3301, and our team will help you develop the budget and timeline
for your 2015 mineral acquisitions.
Please note that as of November 1, 2014,Synergy Land Services Ltd.
will be located at:200, 2710 – 17 Avenue SE
Calgary, AB T2A 0P6
Crown Land Salesand
Freehold Mineral Leasing
Synergy2014_CAPLHalfPgVert3.5x9.75.indd 1 2014-10-24 10:58 AM
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as well. The Board believes that the public must have sufficient
information to participate meaningfully in the decision making
process, to voice their concerns and have their concerns heard
and properly addressed and, if possible, resolved. The proponents
information must be extensive, consistent, factual and must be
disclosed in a timely manner, and if the proposal is part of a larger
project, the proponent should be prepared to discuss the entire
project and explain how its components compliment other energy
development plans in the area. This seminar helps proponents
understand the public consultation requirements, expectations of
the AER and assists companies in completing the application or
audit processes for regulatory compliance.
Negotiation Skills for Surface Land Agents (PSL®)
december 11, 2014 8:30 a.m. to 4:30 p.m.
This seminar will examine the common struggle we often experience
between meeting our substantive needs in the negotiation while
maintaining or improving the working relationship. This workshop
also provides a number of interactive industry related negotiation
scenarios during the day that allow the participants an opportunity
to apply the skills learned during the early stages of the workshop.
ROFR Issues: An Interpretive Approach
january 21, 2015 8:30 a.m. to 4:30 p.m.
This seminar is intended for senior level landmen who are
responsible for analyzing various situations in which ROFR issues
may arise and recommending or implementing appropriate
corporate responses thereto. The morning will be devoted to a
presentation of legal principles and the afternoon a round table
discussion of ROFR issues.
Surface Land Fundamentals
january 22, 2015 8:30 a.m. to 4:30 p.m.
This course is provided for professionals such as mineral land-
men, engineers, geologists and other project managers who either
work with their surface land department or manage their surface
land group as part of a larger team. Individuals new to the land
industry would also benefit from this course; some knowledge of
surface land is beneficial but not required.
Economic Considerations for Land Deals
january 28 & 29, 2015 8:30 a.m. to 4:30 p.m.
This seminar is intended for senior landmen and individuals
involved in conducting project economic evaluations. Emphasis is
on the use of economics to assist in the structuring and evaluation
of land deals. m
FULL SERVICE PROVIDER OF LAND SERVICESHead Office Calgary Tel: 403-265-1116
1300, 734 - 7th Ave SW, Calgary, AB T2P 3P8
[email protected] www.standardland.com Standard Land Company Inc Winston E. Gaskin, President
Standard LandSince 1994, Standard Land’s experience in negotiating land access in highly sensitiveenvironments with multiple stakeholders has served a single purpose: success.
Let us put our experience to work for you.
CORE SERVICES » Everything “Land”
From simple consultation to large-scaleproject management, Standard Land expertlymanages 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.
StandardLand_ADV_Negotiator_Layout 1 12-09-11 10:01 AM Page 1
• Mineral and Surface Leasing• Right-of-Way Acquisitions• Mineral Ownership/Title Curative• Seismic Permitting• Mapping/GIS Services• Abstracts of Title
Elexco Land Services, Inc.New York: 1.866.999.5865Michigan: 1.800.889.3574Pennsylvania: 724.745.5600
Standard LandSince 1994, Standard Land’s experience in negotiating land access in highly sensitiveenvironments with multiple stakeholders has served a single purpose: success.
Let us put our experience to work for you.
CORE SERVICES » Everything “Land”
From simple consultation to large-scaleproject management, Standard Land expertlymanages 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.
StandardLand_ADV_Negotiator_Layout 1 12-09-11 10:01 AM Page 1
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The Negotiator’s Message From the Board
member servicesThe member services PorTFolio is devoTed To mainTaining a suPerior associaTion WiTh high qual-iTy members, oPPorTuniTies and beneFiTs. Although I have only
been working with Member Services for a short time, it has been
exciting to work with this professional and committed group
of volunteers. It is the incredible volunteers that define CAPL,
making it a valuable Association for its members.
As of October 2014, our membership consists of 1,558 Active
members, 122 Senior members, 75 Associate members, 49 Life
members and 46 Student members.
Member Services is divided into three committees which over-
see membership admissions, the Merit Awards, the CAPL roster,
member benefits and compensation.
Membership Admissions Committee
Active, Associate and Student membership applications go
through a three step process. They are first sent to the CAPL
office where they are reviewed to ensure all forms are filled
out correctly and membership information about sponsors is
accurate. The applications are then sent to the Membership
Admissions Committee, who meet once a month, to confirm
all application requirements are satisfied. If the Admissions
Committee approves the application it is then sent to the
Director of Member Services who will present the applications
as a motion to the CAPL Board of Directors at the monthly Board
meetings. This committee also reviews all Honorary, Senior and
Life memberships annually. If necessary those statuses will
also be approved through the CAPL Board of Directors. Year to
date, the committee has processed 34 Active, 4 Associate and 40
Student membership applications.
Committee Members
Colin Kay (Committee Chairman), Colleen Cochrane, Guido De Ciancio,
James Armstrong, Josh Truba, Mark Grierson, Noel Millions, Robyn Baron,
and Troy Cameron.
Merit Awards Committee
Every year, CAPL recognizes individuals and organizations that
have made extraordinary contributions to the Association and its
community. This committee is responsible for seeking out and
gathering the nominations from CAPL members. There are many
outstanding contributions that have been made and it is essential
that we receive member participation, for input and nominations,
to ensure they are recognized.
The awards that are presented are the Herb Hughes
Memorial, CAPL Distinguished Citizen, CAPL Award of Merit, CAPL
Outstanding Graduate, Bright Lights, Volunteer Supporter, and
Friends of CAPL. If you know of any individual or organization that
would be eligible for one of these awards, please don’t forget to
make those nominations.
Committee Members
Larry Buzan (Committee Chairman), Brad Reynolds, Rob Pettifer, Robyn
Baron, and Suzanne Stahl.
CAPL Roster
It is very common for individuals in our membership to change
companies and move to different opportunities throughout their
careers. It is essential for us to keep our online database and
Roster updated as these changes occur. Irene Krickhan at the
CAPL office is responsible for adding individuals to the Roster and
making all the required changes. The majority of our membership
uses the Roster on a regular basis, and thanks to Irene’s hard work
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we can rely on it. Please keep in mind that it is your responsibility
to make sure your information is correct and up to date, so please
continue to do so.
Member Benefits
Another aspect of the Membership Services portfolio is to oversee
our member insurance benefits. Each year the Director of Member
Services reviews our policies with Nexgen Financial to ensure our
members are receiving top value from our policies. Benefits to all
Active and Lifetime members include Best Doctors, accidental
death/dismemberment, and life insurance.
Some additional benefits that were made available to our
membership in 2013 include discounts on services from various
organizations. These discounts can be found under the Additional
Membership Benefits link on the Members Only page of the CAPL
website. If you haven’t had a chance to look at the discounts avail-
able to you, I recommend taking the time to do so. The discounts
currently available to CAPL members include personal insurance,
a land tool, and fitness membership.
Compensation Survey Committee
In Q1 2014 a compensation survey was sent out to membership,
of which 629 members participated. For relevance the survey data
was split into six different job families: Negotiations, Contracts
Landman, Surface Land Agent, Acquisitions and Divestitures,
Administration, and Land Management. Once the job family was
identified it was again split out into six levels of experience from
Entry Level to Executive Level. A lot of work went into putting
this survey together, so I want to thank everyone who partici-
pated in the survey and each individual within the committee
that made this valuable piece of information available to our
membership. The results of the survey can be found under the
2014 CAPL Compensation Survey link on the Members Only page
of the CAPL website.
Committee Members
Bob Bachynski (Committee Chairman), Adam Wolfenden, Amanda
CAPL General Meeting and Industry Nightintroducing a new meeting Formatjanuary 15, 2015, 4:00 Pmcalgary Westin hotel
The caPl board oF direcTors has decided To make an exciTing FormaT change To The Formal 2015 managemenT nighT dinner and general meeTing. The inaugural 2015 CAPL Industry Night is being
introduced for our members to invite, not only our managers,
but all of our technical peer group (the geologists, geophysicist,
engineers, CEOs, CFOs, etc.) as guests, to join us for an evening
of informative networking and the opportunity to listen to
our keynote speaker, Deborah Yedlin, Calgary Herald Business
Columnist. The evening will start with a cash bar and hors
d’oeuvre service at 4:00 p.m. The General Meeting will be held
promptly at 5:00 p.m. and the keynote speaker will then present
her thoughts on “The Energy Eco-System: Land, Labor and Capital”
at 5:15 p.m., with a theatre-seating layout and time allotted for
Q&A. By 6:30 p.m., members and their guests will be invited to
walk about the cocktail/buffet reception and visit with the many
Government Oil & Gas Ministry representatives and select indus-
try information service providers.
deborah yedlinCalgary Herald Business Columnist
Taking Care of Business, The
Calgary Way
Deborah has covered the
energy sector as a colum-
nist and radio commentator
for CBC since 1996. She has
worked for the Financial Post,
Globe and Mail and is currently
the business columnist with
the Calgary Herald. Prior to her
career switch to journalism,
Deborah worked as an invest-
ment banker on Wall Street and
Bay Street. Deborah holds a B.A. in Economics from the University
of Alberta, an MBA from Queen’s University and is a member of
the Institute of Corporate Directors. m
Suite 201, 2629 – 29th Avenue Regina, Saskatchewan S4S 2N9
Land AcquisitionsFreehold Mineral Secialists
Surface AcquisitionsPipeline Right-of-Way
Rental ReviewsDamage Settlements
Crown Sale AttendanceTitle Registration
Potash ProjectsWind Generation Projects
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2015 CAPL ConferenceaT The 2014 conFerence in jasPer, The locaTion oF The 37Th annual conFerence Was revealed – St. John’s, Newfoundland and Labrador. In Jasper, in keeping with
British Columbia Alberta Saskatchewan Manitoba AREATotal Ha
Sold Average$ / Ha
BC 14,360 $997
AB - Foothills 20,992 $588
AB - Plains 38,557 $169
AB - Northern 81,728 $563
SK 29,215 $739
MB no sale
October 2014
NOTE: Numbers are rounded
DrillingDown
Total
0100200300400500600700800900
October2009
October2010
October2011
October2012
October2013
October2014
Drilling Report for Last 5 Years
DrillingDownTotal
0%
10%
20%
30%
40%
50%
60%
70%
October2009 October
2010 October2011 October
2012 October2013 October
2014
Drilling Rig Utilization Rate
Utilization Rate
Celebrating 65 years ofland surveying and geomatics
in Western Canada.
www.midwestsurveys.comService Beyond Boundaries.
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Student’s CornerWomen in energyWhen i FirsT heard abouT The PeTroleum land managemenT (Plma) Program aT The universiTy oF calgary, i Was hesiTanT To aPPly For a couPle oF reasons. To begin, the application process to enter the
program was extensive, and required both commitment and dedi-
cation. Secondly, I had heard that there were few females in this
line of work, which I had also inferred due to the job title itself
being “Landman.” However, I was pleasantly surprised to discover
that the latter information was inaccurate. I entered the program
to learn that not only would I be in the 2014/2015 graduating class
with five other women, but that these women would also become
good friends that I would share similar interests with! I was also
surprised to discover from my networking experiences that there
are many successful female Landmen, who are key contributors in
the success of the companies they work for.
Two women in particular who have been an inspiration to me
thus far in my journey have been Alexis Watson, who is currently a
Senior Landman at ConocoPhillips Canada, and Connie De Ciancio,
who is Vice President, Land at Mosaic Energy. Alexis was one of my
points of contacts when I first heard about the PLMA program, and
I have had the privilege of working under her this past summer;
she is someone
that I can contact
for advice at any
given time who
has an exten-
sive background
in Land. Connie is
my “official” indus-
try mentor assigned
to me through
the University of
Calgary PLM Mentor
Program. She has also been an incredible source of knowledge and
encouragement for my studies and has introduced me to several
key people in this industry.
As we finish off our final year of studies, it is our hope as
a female student group, that we will continue to make strong
connections with both men and women in our chosen field that
will assist us in our future careers as Landmen. In addition to this,
we hope to one day be mentors ourselves, to both the women and
men in the PLMA program!
Happy Holidays from the PLMA student group! m
Dinora Santos
Fourth Year PLMA Student
L to R: Taylor Blanchard, Brittany D’Adamo, Dinora Santos, Natalie Gillespie, Julia Sande and Sumeet Brar
[email protected] 1-866-528-2558 Medicine Hat 1-855-425-2530 Edmonton actionland.ca
Have a very Merry Christmas and Best Wishes for the Holiday Season!
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The Social Calendar
EvEnt DAtE tIME LOCAtIOnCOSt
(InCLUDInG GSt)COntACt nAME COntACt PHOnE COntACt EMAIL
December Meetingdecember 10, 2014caPl christmas networking
Reception: 4:00 p.m.
Where: Calgary Petroleum Club
319 – 5 Avenue S.W.
Cost: Members: No Charge
Student Members: Free (Designated Meeting)
Guests: $94.50 (incl. $4.50 GST)
All members are required to confirm their attendance by email.
Only guests are required to purchase a ticket. Guest tickets will be sent to
the member with an invoice. Jacket required (no jeans or T-shirts) please.
Registration please email [email protected]. Please confirm your atten-
dance by emailing before noon on December 3, 2014 m
January Meetingjanuary 15, 2015industry networking eventspeaker: deborah yedlin
business columnist, The Calgary Herald
Time: 5:00 p.m.
Where: The Westin Calgary
320 – 4 Avenue S.W.
Cost: Members: $42.00 (incl. GST)
Student Members: $42.00 (incl. GST)
Guests: $94.50 (incl. GST)
Ticket order form is available on the CAPL website. Ticket order deadline
is January 5, 21015. m
december 1 Monday Saskatchewan Land Sale 2 Tuesday Board Meeting 2 Tuesday Drilling & Production Operations 3 Wednesday Alberta Land Sale 3 Wednesday Professional Ethics: Case Studies for Landmen 4 Thursday Preparing for a Surface Rights Board Hearing (PSL®) 9 Tuesday Professional Ethics: Theory and Application 9 Tuesday Overcoming the Five Dysfunctions of a Team 10 Wednesday British Columbia Land Sale 10 Wednesday Directive 056: AER Energy Development Applications
Public Consultation Requirements (PSL®) 11 Thursday Negotiation Skills for Surface Land Agents (PSL®) 17 Wednesday Alberta Land Sale 25 Thursday Christmas Day 26 Friday Boxing Day m
january 1 Thursday New Year’s Day 6 Tuesday Board Meeting 14 Wednesday Alberta Land Sale 15 Thursday CAPL Industry Night 21 Wednesday British Columbia Land Sale 21 Wednesday ROFR Issues: An Interpretive Approach 22 Thursday Surface Land Fundamentals 28 Wednesday Alberta Land Sale 28, 29 Wed-Thu Economic Considerations for Land Deals m
CAPL Calendar of Events
The experts in Land Acquisition offer Environmental Services as
well. Picture that. An A to Z solution that is far more efficient
and effective, making your life so much easier. Join the industry
leaders who count on us for expert solutions.
Call 1-866-834-0008 or visit landsolutions.ca and relax.
NOW THIS CAN BE BOTH THE BEFORE AND THE AFTER SHOT.
YOUR ADHERE*
(*because like a blue moon, available advertisement space on the back cover of The Negotiator is a very rare occurrence…)
For advertising opportunities, please contact Kevin Young (403-724-4450) or Trevor Rose (403-233-3136)