[1]     The Operator shall have right of entry in respect of 3.15 acres of the surface of the Land as shown outlined in red on Plan A attached and forming part of this Order for or incidental to the operation of a compressor station as described in Alberta Energy Regulator Licence No. F3655 and to give the operator access to the operator’s operations from a public roadway or other public way, and egress from the operations to the public roadway or other public way.

[2]     The right of entry is subject to the requirements of Facility Licence No. F3655 and the conditions attached as Appendix A and forming part of this Order.

[3]     The Panel convened on April 26, 2023, to consider Persist Oil and Gas Inc.’s (“Persist Oil”) Right of Entry (“ROE”) Application.

[4]     Persist Oil requires access to the Land for for or incidental to the operation of a compressor station as described in Alberta Energy Regulator Licence No. F3655 and to give the operator access to the operator’s operations from a public roadway or other public way, and egress from the operations to the public roadway or other public way.  

[5]     On December 20, 2022, Persist Oil filed with the Tribunal a Schedule 1 Application, which has been considered by the Panel along with the following documents:

[6]     On December 21, 2022, Tribunal administration received an objection to the ROE Application from Ryan J. Barata of Carscallen LLP on behalf of Roy Daniel Flowers. The Landowner submits that right of entry applications pursuant to section 15(1) of the Act are only available as a remedy when an operator is unable to obtain the consent of the landowner pursuant to Section 12 of the Act. The Landowner submits that the Applicant ran a bitcoin mining operation from the Site in violation of a lease between the Landowner and Persist Oil. Bitcoin mining is not an enumerated use within Section 12(1) of the Act. The Landowener therefore requests that the LPRT dismiss the Application.

[7]     Tribunal administration notified Persist Oil and other Respondents that an objection to the ROE Application had been received and requested that submissions on the objection be provided by 4:30 p.m. on January 5, 2023. Although the notice to Fortis Alberta Inc. was mailed to the address indicated on the Certificate of Title for the Land, it was returned undelivered.

[8]     On December 22, 2022, Tribunal administration received a reply to the Respondent Owner’s objection from Emily McCartney of Gowling WGL on behalf of Persist Oil. Persist Oil acknowledges that it intermittently ran a bitcoin mining operation from the Site between September 2021 and September 2022. The Landowner has filed a Statement of Claim in the Court of King’s Bench seeking a declaration that this operation was in violation of the now-expired lease. Persist Oil submits that the question of whether Persist Oil violated the expired lease is not within the Tribunal’s jurisdiction and is not relevant to determining whether to grant a right of entry order under section 12(1) of the Act. Persist Oil submits it has a right to seek a right of entry order to access its gas compressor operations on the Site, as those operations are within the scope of section 12(1) of the Act.

[9]     Section 15(5) of the Act provides the Tribunal with discretion to determine whether to hold a hearing with respect to an application and objection:

[10]   Section 28(2)(c) of the Interpretation Act, (RSA 2000, cI-8) defines “may” as permissive and empowering rather than mandatory. Section 8(3.1) of the Act provides that “the Tribunal is not bound to hold oral hearings but may instead, subject to the principles of natural justice, make decisions on the basis of written submissions”. Both the Respondent Owner and the Operator have made written submissions, and these have furnished the Panel with sufficient information to make a decision. Therefore, the Panel determines that it is in accordance with natural justice to make its decision on the basis of written submissions. An oral hearing is not required.

[11]   Section 15 of the Act and sections 2 through 6 of the Regulations set out the requirements that an operator must fulfill before the Tribunal may issue a right of entry order.

[12]   Alberta courts have been clear that once a licensing authority (in this instance the AER) has issued a permit or licence to the operator, and the operator has met the technical requirements of the Act and Regulations, the Tribunal has very limited discretion to refuse to grant a Right of Entry Order.

[13]   In Mueller v. Montana Alberta Tie Line, 2011 ABQB 738, the Alberta Court of Queen’s Bench   stated at para 34, “following the issuance of a permit or license by the Energy Resources Conservation Board or the AUC within which the party has authorization to seek entry onto the land, the Land and Property Rights Tribunal has no alternative but to issue a Right of Entry Order. It is important to keep this role of the Land and Property Rights Tribunal separate from that of ordering compensation, where the standard of review and deference may in fact be different.”

[14]   The Alberta Court of Appeal has also examined the interplay between the Tribunal’s jurisdiction and the licensing authority and determined the two bodies must work together and that the Tribunal cannot make an order that is inconsistent with the AER’s permit (Togstad v Alberta (Surface Rights Board), 2014 ABQB 485 (CanLII), 2015 ABCA 192).

[15]   The Courts have been very clear that the Tribunal’s discretion in making right of entry orders is limited. The Tribunal confirms the technical requirements are met, and it may consider making the right of entry order subject to conditions. The Tribunal must ensure that any right of entry order it issues is consistent with the licence or permit issued by the AER. This means the Tribunal cannot use right-of-entry proceedings to revisit terms of decisions issued by the AER; rather, the Tribunal’s substantial focus is on issues of compensation.

[16]   The Panel has reviewed the Applications and considered the Tribunal’s authority under the relevant sections of the Act and the requirements of the Regulations.

[17]   The Panel is satisfied that:

[18]   The Panel has considered the Landowner’s submissions and objection, and finds that addressing the allegation of past bitcoin mining is outside of its jurisdiction. The Application is supported by a valid AER facility license for a compressor station. The Tribunal’s order is limited to activities for or incidental to the operation of that facility and access to that facilitiy, and is subject to the requirements of that AER licence.

[19]   No party requested any conditions. The Panel considers it appropriate to attach the Tribunal’s standard conditions.