Comments on: Standing at the ERCB without an interest in land, but “no costs for you!” http://ablawg.ca/2010/04/26/standing-at-the-ercb-without-an-interest-in-land-but-%e2%80%9cno-costs-for-you%e2%80%9d/ Tue, 22 May 2012 09:31:50 +0000 http://wordpress.org/?v=2.3.3 By: L. Douglas Rae http://ablawg.ca/2010/04/26/standing-at-the-ercb-without-an-interest-in-land-but-%e2%80%9cno-costs-for-you%e2%80%9d/#comment-91791 L. Douglas Rae Mon, 26 Apr 2010 18:52:48 +0000 http://ablawg.ca/2010/04/26/standing-at-the-ercb-without-an-interest-in-land-but-%e2%80%9cno-costs-for-you%e2%80%9d/#comment-91791 The decision is also interesting in view of: 1. the Board's previous decision with respect to standing for FHOA in the Board's Coal Bed Methane hearing and its awarding of costs in that instance; 2. the Board's and OMERS' submission (and Justice McFadyen's acceptance) that the impact MUST be direct and adverse, versus the wording in the statute whereby the impact MAY be direct and adverse; the result being that one only qualifies for costs if you get an unfavourable decision from the Board, as opposed to a favourable decision; and 3. the fact that the freehold owner whose leases are at issue hasn't been invited to participate by the Board or the producers in front of either the Board or the Court and that decisions in regard to leases to which she is a party are being made without her participation. The decision is also interesting in view of:
1. the Board’s previous decision with respect to standing for FHOA in the Board’s Coal Bed Methane hearing and its awarding of costs in that instance;
2. the Board’s and OMERS’ submission (and Justice McFadyen’s acceptance) that the impact MUST be direct and adverse, versus the wording in the statute whereby the impact MAY be direct and adverse; the result being that one only qualifies for costs if you get an unfavourable decision from the Board, as opposed to a favourable decision; and
3. the fact that the freehold owner whose leases are at issue hasn’t been invited to participate by the Board or the producers in front of either the Board or the Court and that decisions in regard to leases to which she is a party are being made without her participation.

]]> By: Jonnette Watson Hamilton http://ablawg.ca/2010/04/26/standing-at-the-ercb-without-an-interest-in-land-but-%e2%80%9cno-costs-for-you%e2%80%9d/#comment-91786 Jonnette Watson Hamilton Mon, 26 Apr 2010 18:38:36 +0000 http://ablawg.ca/2010/04/26/standing-at-the-ercb-without-an-interest-in-land-but-%e2%80%9cno-costs-for-you%e2%80%9d/#comment-91786 Interesting post, Shaun, and I agree that the ERCB's interpretation of "an interest in land" is a very narrow one. It also seems to focus exclusively on a lease as a contractual relationship, ignoring its dual nature in law as a contractual relationship and an estate in land. If I understand the facts correctly, the lessor held an estate in fee simple in land, i.e., she is the person commonly referred to as the "owner" of the land. It is her fee simple estate -- her legal relationship to the land -- that makes her a "local intervener" under section 28. The traditional and very conventional understanding of "ownership" is found in A.M. Honore's chapter on "Ownership" in Oxford Essays on Jurisprudence (London: Oxford University Press, 1961) 107. Honore lists (at 113) eleven "standard incidents of ownership" or "necessary ingredients in the notion of ownership" as being: - the right to possess - the right to use - the right to manage - the right to the income of the thing - the right to the capital - the right to security - the right of transmissibility - the right of absence of term - the prohibition of harmful use - liability to execution - the incident of residuarity When the ERCB looks for evidence that its lease decision would affect the owner/lessor’s possession or control of her property it looks only at two (or three) of the incidents of ownership (possession and management, and possibly use). Indeed, the ERCB seems to focus exclusively on the owner's status as a lessor when that is not the status that is relevant under section 28. It is as though only some of the incidents of ownership are relevant and that narrower set of incidents is dictated by the owner/lessor's relationship to OMERS and Montane and not her relationship to the land. In other words, the ERCB position seems to ignore the fact the owner/lessor has a fee simple estate for her "interest in land" and that interest includes a property right to the income from the land. So while it is true that when the ERCB decision affects the royalty amount payable on gas production it affects the owner/lessor's contractual rights, as the ERCB decided, its decision also affects her property rights, i.e., her interest in land. Interesting post, Shaun, and I agree that the ERCB’s interpretation of “an interest in land” is a very narrow one. It also seems to focus exclusively on a lease as a contractual relationship, ignoring its dual nature in law as a contractual relationship and an estate in land. If I understand the facts correctly, the lessor held an estate in fee simple in land, i.e., she is the person commonly referred to as the “owner” of the land. It is her fee simple estate — her legal relationship to the land — that makes her a “local intervener” under section 28.

The traditional and very conventional understanding of “ownership” is found in A.M. Honore’s chapter on “Ownership” in Oxford Essays on Jurisprudence (London: Oxford University Press, 1961) 107. Honore lists (at 113) eleven “standard incidents of ownership” or “necessary ingredients in the notion of ownership” as being:
- the right to possess
- the right to use
- the right to manage
- the right to the income of the thing
- the right to the capital
- the right to security
- the right of transmissibility
- the right of absence of term
- the prohibition of harmful use
- liability to execution
- the incident of residuarity

When the ERCB looks for evidence that its lease decision would affect the owner/lessor’s possession or control of her property it looks only at two (or three) of the incidents of ownership (possession and management, and possibly use). Indeed, the ERCB seems to focus exclusively on the owner’s status as a lessor when that is not the status that is relevant under section 28. It is as though only some of the incidents of ownership are relevant and that narrower set of incidents is dictated by the owner/lessor’s relationship to OMERS and Montane and not her relationship to the land. In other words, the ERCB position seems to ignore the fact the owner/lessor has a fee simple estate for her “interest in land” and that interest includes a property right to the income from the land. So while it is true that when the ERCB decision affects the royalty amount payable on gas production it affects the owner/lessor’s contractual rights, as the ERCB decided, its decision also affects her property rights, i.e., her interest in land.

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