Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Transcription

THE
NEGOTIATOR
Th e M a g a z i n e o f t h e C a n a d i a n A s s o c i at i o n o f Pe t ro l e u m L a n d m e n
December 2014
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
NEGOTIATOR
Th e M a g a z i n e o f t h e C a n a d i a n A s s o c i at i o n
o f Pe t ro l e u m L a n d m e n
Senior Editorial Board
Director of Communications
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THE
NEGOTIATOR
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Features December 2014
2 N
oa To Be or Not To Be
Effective on This Day!
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Michelle Radomski
7 U
pgrading to a “Smart Phone”
Jim MacLean
10 R evisiting Regulatory Negligence:
The Ernst Fracking Litigation
Martin Olszynski
In Every Issue
2014–2015 CAPL Board of Directors
President
Michelle Radomski
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Alberta & British Columbia
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18 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
Also in this issue
10 Fourth Annual CAPL Ski Trip
16 2015 CAPL Squash Tournament
17 2014 Merit Awards
19 Q3 M&A Report by ATB
27Capl General Meeting and Industry Night
28 2015 CAPL Conference
30 Student’s Corner: Women in Energy
Noa To Be or Not To Be
Effective on This Day!
There has been much debate and
debacle over the years related to
accounting adjustments for the period
which accrued prior to the Binding Date is for
between the Transfer Date and the Binding Date of
and Binding Date are to be settled between
a Notice of Assignment (NOA).
the Assignor and Assignee. After all, Clause
the Assignor’s account and any adjustments
related to the period between the Transfer Date
THE NEGOTIATO R / DEC EMBER 20 14
8 of the Notice of Assignment states “… In
There are two schools of thought:
addition, Assignor and Assignee agree that
1. On and after the Binding Date, the Assignee
they shall be solely responsible for any adjust-
becomes the recognized party to the Master
ment between themselves with respect to
Agreement with respect to any and all matter
the Assigned Interest as to revenues, benefits,
or thing occurring or accruing beyond the
costs, obligations or indemnities which accrue
Transfer Date, which by definition means “the
prior to the Binding Date” – but wait, this will
effective date of the transfer of the Assigned
be addressed below!
Interest”. Very important to note that it is not
2
defined as the date of the transfer (in other
The Act of Novation
words the closing date); but, instead, that date
It is of fundamental importance that everyone
the transfer was made effective (sometimes
remembers that a NOA is not a standalone docu-
also called an adjustment date).
ment and that its use, application, and effect
2. Alternatively, the Transfer Date has no appli-
are dictated by the Assignment Procedure. It is
cation to the Third Party. All matter or thing
equally important to remember that the NOA is
Written by
Michelle Radomski
wIth thanks to Paul
Negenman, Jim MacLean
& Lynn Gregor
a contractual instrument instituted by Industry in substitution
adjust revenues and expenses (and occasionally risk) back to
for the assignment and novation agreement (A&N), but which
the date the cash or bona fide value to be given to the Assignor
still results in novation. This means, “the act of those concerned
for the Assigned Interest at closing was determined. Use of
parties agreeing that their mutual agreement has been replaced
the effective or adjustment date as the Transfer Date is not a
by a new one among differing parties.” In the case of a NOA, this
big deal for revenues and expenses. However, the subsequent
occurs as of the Transfer Date when the old party is discharged
effect of Clause 3.01 on the Third Party is to have the Assignee
from, and the new party assumes all, the rights and obligations of
responsible for any of the interim period liability (e.g. – court
the old party under the Agreement as provided by Clause 3.01 of
action, taxes, facility fire) from the effective or adjustment
the Assignment Procedure.
date forward, not the closing date forward. Notwithstanding
that Clause 3.02 of the CAPL Property Transfer Procedure
What is the Binding Date
deems “benefits, obligations and risks” back to the Effective
To determine which, if either, of the two above approaches is
Date, this may not always be the agreed upon arrangement in
correct, let’s first determine exactly, “what is the Binding Date”?
a different form of purchase and sale agreement between an
By definition under the Assignment Procedure, it means “the
Assignor and Assignee.
first day of the second calendar month following the month in
• To the contrary, based on the “matching principle” of accrual
which the Notice of Assignment is served”. Quite simply, it is an
accounting, where one tries to match costs and expenses to the
administrative trigger date at which time the NOA becomes effec-
associated revenues and periods of time, it is logical and practi-
tive against the Third Party. In other words, the act of novation is
cal to link the cash flow (revenues-expenses) to the incremental
deemed to have occurred as of the Binding Date. But, remember,
risk associated with the generation of that cash flow. It is help-
the act of novation occurring on the Binding Date is different than
ful to use the Effective or Adjustment Date as the Transfer Date
the date the Third Party is deemed to have agreed that the nova-
in the NOA, for the following reasons:
tion (substitution of the parties) is effective; being the Transfer
Date. The Binding Date of a NOA is no different than the date
• the Assignee would have likely had the opportunity to
that all counterpart pages had been signed and distributed to the
conduct due diligence and conditionally walk away from
parties to an A&N. This is where all the third parties recognize the
closing the transaction (e.g. “no substantial damage” condi-
Assignee as the correct party to that agreement from and after the
tion) if they were not prepared to take the Assigned Interest
on an “as is” basis;
effective date stipulated in the A&N.
• the maintenance of business provisions in a purchase and
Things You Should Know About the Transfer Date
sale agreement typically provide the Assignee with influence
Before beginning to address the effect of the NOA on the Third
over operations during the interim period;
Party there are a few other things to be considered by the Assignor
• this date is usually linked to a production month vs. a clos-
and Assignee. The first issue is establishing the Transfer Date to be
ing date that is other than the 1st day of a given month and
stated in the NOA as the effective date or adjustment date versus
the closing date of the transaction, when risk, possession and title
are actually transferred, assigned and conveyed:
avoids odd adjustments;
• it mitigates rework on documents when the closing date
changes even a day (a very common occurrence);
• it encourages shorter interim periods due to the operational
• Purely from a legal and contractual perspective, the effective
risks;
or adjustment date is the date the parties have agreed to
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THE NEGOTI ATOR / DEC EMBER 20 14
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.
• the Canada Revenue Agency’s tax requirements can be
managed through a tax adjustment provision; and
• Assignee shall replace Assignor as a party to the Agreement
“on and after the Transfer Date;”
• the CRA is not requiring tax adjustments and allowing the
• As far as a Third Party is concerned, (i) “Assignee shall
purchaser to include sale proceeds in its income where the
assume and be bound by, observe and perform all terms,
effective date and closing date are in the same calendar month).
obligations and provisions in the Agreement… [and] shall
assume and be entitled to all rights, benefits and privileges
Industry seems to understand and accept that risk, possession
under the Agreement… on or after the Transfer Date, and (ii)
and title doesn’t actually pass until the closing date pursuant to
Assignor shall retain and be entitled to all rights, benefits
most purchase and sale agreements. However, everyone seems
and privileges under the Agreement… prior to the Transfer
to be using the effective or adjustment date as the Transfer Date
Date;”
in their NOA, with respect to the joint account held with the
• Third Party… [and] Assignee… “(i) releases and discharges
Third Party if there is an unusual event requiring a risk adjust-
Assignor from the observance and performance of all terms
ment, the indemnification and subordinate auxiliary conveyance
and covenants… and all obligations and liabilities which arise
document provisions of a typical purchase and sale agreement
or occur on or after the Transfer Date under the Agreement;
would likely cause this to become a vendor – purchaser action,
and (ii) does not release and discharge Assignor from any
regardless of which party the Third Party may hold liable under
obligation or liability which had arisen or accrued prior to
the Agreement.
the Transfer Date;”
• In all matters relating to the Assigned Interest “subsequent to
What Happens Pursuant to the Assignment Procedure
the Transfer Date and prior to the Binding Date,” Assignor acts as
The Assignment Procedure provides as follows:
trustee for and duly authorized agent of Assignee; and
• Clause 2.05 says, “An assignment of an Assigned Interest shall…
be effective against Third Party on the Binding Date”.
• Clause 3.01 states that following the Binding Date “the Assignor
has transferred, assigned and conveyed… to Assignee as of the
• The Agreement “shall continue in full force and effect
from and after the Transfer Date with Assignee made a party
thereto… subject to Clause 3.01(d), being that above provision
for the Assignor to have acted as trustee for the Assignee.”
Transfer Date”
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• Clause 3.03 says, “Assignor and Assignee shall be solely responsible for any adjustments between themselves with respect to
to the Assignor’s joint interest billing (JIB) account prior to the
Binding Date.
the Assigned Interest as to revenues, benefits, costs, obligations
or indemnities which accrue prior to the Binding Date”.
Post-Binding Date (Novation Has Occurred)
The Binding Date has no application or relevance after is passes
So, now let’s take a look at the situation from two very different
– it was simply the trigger date at which time the act of novation
points in time – prior to and subsequent to the Binding Date.
occurs and become binding on all the parties. The Assignee is now
the recognized party to the Agreement in all matters pertaining to
Pre-Binding Date (Novation Has Not Occurred)
the Assigned Interest from the Transfer Date onwards. The trustee,
Until novation occurs on the Binding Date, the Assignor remains
agency, and adjustment provision in Clauses 3.01(d) and 3.03 took
the recognized party to the Agreement and has the right and duty
care of the interim period issues as between the Assignee and
to act as trustee and duly authorized agent of the Assignee for
Assignor. At this point in time, the Assignor has been released
all matters relating to the Assigned Interest subsequent to the
and discharged from, and the Assignee has assumed all the
Transfer Date and prior to the Binding Date.
obligations, liabilities, rights, benefits, and privileges under the
It is not a reasonable expectation that once revenues, costs,
Agreement on and after the Transfer Date. The Assignor no longer
and expenses are booked as actuals or accruals to a JIB account for
has the ability to act as the trustee and duly authorized agent of
any given accounting month prior to the Binding Date. This would
the Assignee.
cause Third Party accounting groups to go back and reverse any
Accounting for actual revenue payments is often several
payments or charges to the Assignor related to the accounting
months behind the production accruals. It is not a reasonable
months between the Transfer Date and the Binding Date.
expectation for the Assignor to continue to receive JIB’s well
Therefore, pursuant to Clause 3.03, the Assignor and Assignee
beyond the Binding Date for production months occurring several
are responsible to account for any adjustments between them-
months in advance of the Binding Date and relating to revenues,
selves for any revenues, benefits, costs, obligations or indemnities
costs and expenses accruing on and after the Transfer Date.
attributable to the Assigned Interest after the Transfer Date
The Third Party has been deemed to have already agreed that
which are for the Assignee’s benefit and which were accrued
these accruals belong to the Assignee by virtue of the act of
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novation. This practice further complicates the final settlement of
On the Binding Date, novation occurs, and Third Party deals
accounts between the Assignor and Assignee commonly occurring
directly with the Assignee for all matters accruing to the Assigned
180 days after closing in most purchase and sale agreements.
Interest for any and all production months after the April 1
So, what about Clause 8 of the Notice of Assignment? Although this
Transfer Date.
clause fails to reference the Transfer Date, it cannot be read and inter-
For any rights, benefits, liabilities or obligation accruing to the
preted independent of the Assignment Procedure. The beginning of
Assigned Interest prior to the Transfer Date, the Third Party is to
Clause 8 actually reads, “This Notice of Assignment shall become binding
deal directly with the Assignor.
on all parties to the Master Agreement on the… (Binding Date)”. Taken in
In summary, the Binding Date is only that date on which the
context with the Assignment Procedure and novation, the later part
Third Party must change its records to reflect the new party to
of this clause, which says, “In addition, Assignor and Assignee agree
the agreement effective as of the Transfer Date. The 1st School of
that they shall be solely responsible for any adjustment between
Thought is the practice dictated by the Assignment Procedure and
themselves with respect to the Assigned Interest as to revenues,
the legal act of novation and should be accepted and followed by
benefits, costs, obligations or indemnities which accrue prior to the
Industry. It is also important to remember that, subsequent to the
Binding Date”, can be reasonably interpreted as intending to only
Binding Date, it is all about determining when the rights, benefits,
apply to that Pre-Binding Date period, before novation occurred,
liabilities, or obligation accrued under the Agreement, not when
when the Third Party was not required to recognize the Assignee.
the accounting is done. To illustrate, an error discovered for the
January-March period that is discovered in October should be sent
Novation By Example
Using an example in which the NOA has a Binding Date of
September 1 and a Transfer Date of April 1, the following accounting practice would apply:
to the period prior to the Transfer Date. m
With credit and thanks given to Paul Negenman,
For the accounting months preceding the September 1 Binding
Jim MacLean and Lynn Gregory for their initial
Date, the Third Party continues to deal with the Assignor, and
input, which resulted in much of the content
the Assignor and Assignee make the applicable adjustments
and concepts presented in this article.
between themselves.
6
to the Assignor, not the Assignee, as the issue is one that pertains
Upgrading to a
“Smart Phone”
The major pending upgrade to the 1997 CAPL Farmout & Royalty
Procedure is driven by a number of diverse factors. These include:
• learnings from our experiences with the 1997 document,
particularly with respect to Article 3.00 for “straight up” earning
transactions;
The Update to the 1997 CAPL
Farmout & Royalty Procedure
• the need to address specific issues associated with evolving
business needs (e.g., the “shale revolution” and the greater
frequency of horizontal wells, the need for royalty allocation
The 1997 CAPL Farmout & Royalty Procedure
became widely accepted in 1998, and has fundamen-
processes for horizontal wells straddling Royalty Lands and
tally changed the way in which our industry has documented
transactions, a much greater use of “straight up” earning struc-
earning agreements. Users found that the document: (i) reduced
tures, more transactions in areas with multi-zone potential,
the cycle time and effort required to complete appropriate docu-
many more partial interest farmouts and the potential for an
mentation; (ii) focused negotiations on key business components
increased frequency of re-entry transactions because of the
of transactions; (iii) streamlined administrative processes, while
likelihood of greater challenges in obtaining surface access);
increasing document and data integrity; and (iv) resulted in
• legal influences (i.e., court cases and other changes in the legis-
resources being focused on additional value creation opportunities.
lative and regulatory environment), notwithstanding that there
We distributed a package of materials to industry in late June
other lands, changes to drilling density rules, more complex
have been very few cases to date on the 1997 document;
respecting our work on an update to the 1997 CAPL Farmout
• changes required because of completion of the 2007 CAPL
& Royalty Procedure. The package included an annotated copy
Operating Procedure and the changes contemplated in the
of the updated draft, an overview document, and a matrix that
current initiative to update that document;
identified all material changes and the rationale for each change.
• the use of “plain language” principles to simplify the presenta-
The supporting overview and matrix elaborate on the changes in
tion of the content and to use a more modern drafting style in
the update document in a user friendly format, and offer readers
order to facilitate a more confident use of the document by a
a context that will simplify their review effort.
broad range of users;
• a major expansion of the annotations as a reference tool for
It’s Working Well, So Why Change It?
users of all experience levels, given the demographic challenges
Based on the major ongoing positive impact of the 1997 CAPL
that our industry facesas the baby boomers begin to retire; and
Farmout & Royalty Procedure, it has generally held up well.
• the ability to increase the breadth and depth of coverage to an
This raises the obvious questions about why we would make
extent not feasible in the 1997 document, given the sensitivity to
significant changes to something that has been working well
length at that time because we knew that there would be challenges
when there is no strong user outcry for change.
in obtaining industry acceptance of the initial 1997 document.
The answer is actually the same as for any project of this type.
The essence of our industry is that it is built on a foundation of
But It’s So Much Longer!
continuous improvement, and the nature of these documents
The length of the draft will initially be a concern to many. It is
is that agreements using them will remain in effect well into
important to put this concern in context, though, as we believe
the future.
that users have much clearer answers on their issues than had
This realization requires us to balance our respect for the past
previously been the case. As I like to say, we are giving users a
with both an objective assessment of the needs of today and a
more complete “car manual” that will enable them to manage
prudent vision for the needs of tomorrow. It also requires us to
issues more efficiently, effectively. and independently.
place significant trust in the judgment of those closest to the
The inclusion of headings for every subclause increases the
applicable document because of the unique insights that these
length of the document incrementally, but offers users much
“programmers” have on the applications they have created.
greater context on the provisions and allows users to find the
applicable provision much more easily. Similarly, the subdivision
of longer provisions into smaller “bites” through the creation of
These include the age of the document, experiences with the docu-
extra subclauses and paragraphs materially enhances the read-
ment, subtle cracks in the foundation that warrant repair to avoid
ability of the document for users.
larger problems later on, legal and regulatory developments and, of
The addition of new content has also increased the breadth
course, changes in the way that our industry conducts its business.
and depth of content materially by offering reasonable solutions to foreseeable problems. Some provisions were expanded
7
The degree to which a significant “renovation” of one of our
core documents is required is a function of a number of factors.
materially to address recognized issues, such as Clauses 1.02, 3.01,
Some Concepts Can Help You Address Issues Today
3.02, 5.05, 6.02, 6.06, 8.01 and 9.03. New provisions were added to
There are many provisions in the draft update that can be of
address other emerging issues, including the addition of func-
immediate benefit resolving existing disputes or to prepare new
tionality to address horizontal wells, test well programs, re-entry
agreements. Examples of these include:
Programs, the potential elimination of separate trust agreements
• various modifications to Article 3.00 to address such topics as:
relating to typical earning agreements, royalty allocations respect-
(i) difficulties in commencing operations; (ii) the interrelationship
ing horizontal wells drilled partially on Royalty Lands and partial
between “Complete, Cap and Abandon”, the obligation to evaluate
interest farmouts. As shown in Addendum III at the end of the
the Test Well to the Farmor’s reasonable satisfaction and zonal
annotated draft, the shift of new procedural content to the docu-
testing requirements; and (iii) the finality of the Farmee’s well
ment admittedly adds length, but simplifies finalization of the
evaluation obligations in a multi-zone operating environment;
Head Agreement.
• various modifications to Article 5.00 to address such topics as:
There has also been a major expansion to the annotations in
(i) Royalty Wells that straddle Royalty Lands and other lands;
ways that will benefit users of all experience levels with respect
and (ii) optionality to allocate costs through the First Point
to both new agreements that use the updated Farmout & Royalty
of Measurement, including special provisions respecting the
Procedure and older transactions. The annotations include infor-
handling of frac water during the initial cleanup period;
mation on the evolution of the clauses as a reference tool when
• the inclusion of modifications to Clause 6.06 to address an
considering issues under current and older agreements, together
additional well in the same formation as the productive BPO
with an examination of the relevant case law. A special area of
Earning Well;
focus is the inclusion of ideas that might be considered by negotiators and contracts personnel when structuring new transactions
using either the new document or the 1997 version.
• 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
As users routinely include a schedule of elections in their
of well information from additional Royalty Wells to the Farmor;
agreements, rather than the CAPL document, we believe that the
• the inclusion of a new Article 10.00 that addresses the possibil-
benefits of enhanced coverage and clarity in this new “car manual”
ity that the Farmor may hold less than a 100% Working Interest
more than offset any negative impact of the increased length.
with other third parties under an existing agreement;
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• a new Clause 16.02 that adds mutuality to the Reserved
Our Ask of You
Formations Article by having obligations flowing back to the
The initial industry draft was issued in June. Our intention is to
Farmout Lands from the applicable Reserved Formation parties;
complete the document in 2Q2015, so that users will have the
• modifications to Article 18.00 to offer functionality restricting
benefit of the document for the 2015-16 winter drilling season.
drilling during the earning phase and for the circumstance in
Given the reality that industry will be using the final version
which a party other than the Operator/Farmee retains respon-
of this document in due course, it is mutually beneficial for a crit-
sibility for ongoing administration of the Title Documents;
ical mass of industry to invest time in optimizing the document
and
during its initial stages.
• an expansion to the miscellaneous annotations at the end of
Your feedback on the document during its early stages will
the document that outline certain circumstances in which
help us enhance the quality of the document materially and
it may be appropriate to deviate from the provisions of the
use project resources much more efficiently. More importantly, it
Farmout & Royalty Procedure.
will shorten the cycle time to project completion and facilitate a
timely and orderly transition to the new document for the collec-
But Some Things Remain the Same
tive benefit of our industry.
The document continues to be designed to provide a platform that
Obtaining familiarity with the document in the near-term also
allows the parties to focus on the business issues associated with
better enables users to understand and address issues with your
a particular transaction, without attempting to pre-structure the
current agreements and positions users to apply the document
business components of the transaction.
more quickly following completion.
As shown in the sample agreements in Addendum III to the
do not vary materially in agreements in a way that enables the
Parallel Project to Update 2007
CAPL Operating Procedure
parties to complete their documents efficiently and effectively,
To optimize alignment between this document and the Operating
while retaining full control over the business variable elements of
Procedure in the future, we are proceeding in parallel with a
their transactions.
modest update to the 2007 CAPL Operating Procedure that will be
document, the document addresses the procedural elements that
completed early in 2015.
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9
Calgary
The primary motivation for this update is to make substantive
We can learn something from that simple story. Our business
changes to offer greater functionality for horizontal wells in the
continues to evolve in significant ways, and our agreements need
context of an increasing number of “long reach wells” on resource
to evolve with the needs of the business. This reflects the reality
plays. Many of these changes are included as enabling provisions
that our agreements revolve around the business needs, not the
to minimize the need for consequential changes in the document
other way around.
if the parties were to create custom provisions in their Agreement
The updates to the CAPL Farmout & Royalty Procedure and
in due course to address such matters as multiple well drilling or
the CAPL Operating Procedure are instruments of opportunity.
completion programs and specialized provisions addressing the
They allow us to embrace the changes inherent in our business
development of well pads. These changes offer a more appropri-
and, to at least some degree, anticipate those changes and facili-
ate foundation for complex shale projects without attempting
tate them in a way in which we are proactive, rather than reactive.
to predict or prescribe detailed project specific development
However, we can only optimize our gains if we collectively recog-
processes that are more appropriately left for the parties to nego-
nize this opportunity and seize it.
tiate in their particular circumstances.
As proud as I am of the 1997 CAPL Farmout & Royalty Procedure
The other proposed changes are typically very specific, minor
and the enhanced efficiencies it has provided to our industry, the
adjustments to the applicable provision or the related annota-
reality is that it is analogous to a 2004 Blackberry. It is now time
tions. They have been included to reflect experiences to date
to make a step change and move to a “smart phone” that offers
with the document, intervening legal decisions and the desire to
much greater functionality, that honours the past by building on
minimize the number of corporate preference type changes being
the prior, solid foundation of work and that addresses the biggest
proposed by industry for typical transactions.
fear of users by being intuitive in use.
To attempt to simplify the review effort significantly, we
We look forward to working with you as our journey with these
have presented the proposed changes in a table format in the
documents moves to its next phase. Together, we can truly make
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
a difference to our companies, our profession and our industry. m
Jim MacLean
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 document into the modestly updated 2014 CAPL Operating Procedure
for users that have yet to embrace the 2007 CAPL Operating
Procedure.
Save the Date!
The Fourth Annual
CAPL Ski Trip will be held on
Our expectation is that the quality of the two updated CAPL
January 30, 2015 at Lake Louise.
documents resulting from the current initiatives will be such
Registration for this event opens
that future modifications to each document will be much more
December 1, please visit the
modest than the “extreme home makeovers” of the 1990 CAPL
CAPL social events webpage.
Operating Procedure and the 1997 CAPL Farmout & Royalty
If you or your organization
Procedure. This conclusion is reinforced when one looks at the
is interested in sponsoring this
relatively modest modifications being proposed to the 2007 CAPL
event please contact one of the
Operating Procedure.
committee members:
In the Words of Wayne Gretzky
Will Glass When Wayne Gretzky was a boy, he would spend a lot of time
Natalie Carson [email protected]
practicing hockey with his dad, Walter. Whenever Walter asked,
Jared Tchir [email protected]
“Where do you skate?”, Wayne consistently replied, “To where the
Debra Bristow
[email protected]
puck is going, not where it’s been.”
10
Fourth Annual
CAPL Ski Trip
[email protected]
Revisiting Regulatory Negligence:
The Ernst Fracking Litigation
On September 15, 2014, the Alberta Court
of Appeal released its decision in Ernst v.
Alberta (Energy Resources Conservation Board) 2014 ABCA 285.
failed to respond in a reasonable manner (i.e. failed to investi-
On November 7, 2014, Chief Justice Whitmann concluded that
that this particular negligence claim was not supported in law:
the claim against Alberta Environment should not be struck
he found that the ERCB owed no private law “duty of care” to
and awarded Ms. Ernst her costs at triple the column she
Ms. Ernst and that, in any event, any claim was barred by s 43 of
received in the 2013 action. This article will first review the
the ERCB’s enabling legislation (see Ernst v. EnCana Corporation,
September 2014 Decision and then provide discussion around
2013 ABQB 537). The Alberta Court of Appeal dismissed Ms. Ernst’s
the November 14 Decision.
appeal. This article considers the regulatory negligence aspects of
gate the incident). The ERCB filed a preliminary motion to have
the action against it struck out. Chief Justice Wittmann agreed
both the Queen’s Bench and Court of Appeal decisions.
Background
Ms. Ernst owns land near Rosebud, Alberta, and is suing EnCana
A Primer on the Law of Negligence
Corporation, the ERCB (now the Alberta Energy Regulator) and
In Canada, a plaintiff has to prove five elements in order to estab-
Alberta Environment (now Alberta Environment and Sustainable
lish negligence: (1) that the defendant owed the plaintiff a duty
Resources Development) for negligence in relation to the alleged
of care; (2) that the defendant breached the applicable standard
contamination of her groundwater as a result of EnCana’s hydrau-
of care; (3) that the plaintiff suffered damages; (4) that these
lic fracturing (fracking) activities in the area. With respect to the
damages were caused by the defendant’s breach; and (5) that the
ERCB specifically, Ms. Ernst’s alleged that the regulator, having
damages are not too remote. The Ernst decisions are concerned
been informed by her of potential groundwater contamination,
only with the first and what is widely regarded as the most
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challenging element in proving negligence: whether the ERCB
barred by s 43 of the Energy Resources Conservation Act in any event
owed Ms. Ernst a duty of care in the first place.
(since repealed and replaced with s 27 of the Responsible Energy
The applicable legal framework was set out by the Supreme
Court of Canada in Cooper v. Hobbart, 2001 SCC 79:
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
[30] … At the first stage of the [Anns/Cooper] test, two ques-
one, not least of which is the fact that there is another regulator –
tions arise: (1) was the harm that occurred the reasonably
Alberta Environment – being sued for negligence here, one which
foreseeable consequence of the defendant’s act? and (2)
has not applied to have the action against it struck. Perhaps the
are there reasons, notwithstanding the proximity between
Courts wanted to make clearer to counsel the framework within
the parties established in the first part of this test, that
which the action against Alberta Environment will be assessed
tort liability should not be recognized here? The proximity
and give some sense of their predisposition to such actions. Along
analysis… focuses on factors arising from the relationship
these lines, it is reasonable to suggest that the Court of Appeal’s
between the plaintiff and the defendant. These factors
decision to state explicitly that which was not at issue before it,
include questions of policy, in the broad sense of that word. including “whether the pleading against the defendant Alberta
could be struck as being frivolous or vexatious” (Ernst v. Alberta at
If foreseeability and proximity are established…a prima
para 9), reflects judicial scepticism.
facie duty of care arises. At the second stage…, the
As for the duty of care analysis, although the outcome is the
question still remains whether there are residual policy
same in both decisions the analysis is actually quite different.
considerations outside the relationship of the parties that
Chief Justice Wittmann begins and ends his analysis at the first
may negative the imposition of a duty of care. [Underlining
stage of the Anns/Cooper test. Situating Ms. Ernst’s relationship
in original]
with the ERCB as more like that between the unsuccessful
investors and the Registrar of Mortgage Brokers in Cooper than
With respect to proximity, the Supreme Court has stated that this
the miners to whom government inspectors were held to owe a
involves looking at “expectations, representations, reliance, and
duty in Fullowka v Pinkerton’s of Canada Limited, 2010 SCC 5, the
the property or other interests involved” (Cooper). In the specific
Chief Justice concluded that there was “no sufficient proximity
context of regulatory negligence, the Supreme Court has recently
to ground a private duty. Nor was there a relationship estab-
distinguished between two situations: (1) where the alleged duty
lished between Ernst and the ERCB outside the statutory regime
of care is said to arise explicitly or by implication from the statu-
which created a private duty” (Ernst v. EnCana at para 28). It was
tory scheme (which the Court admits will be rare); and (2) where
thus “unnecessary to determine whether the harm to Ernst was
the duty arises from interactions between the claimant and the
foreseeable. It is also unnecessary to consider the second part of
regulatory authority (most relevant here) (see R. v. Imperial Tobacco
the Anns test, that is, whether there would be any policy reason,
Canada Ltd., 2011 SCC 42). In all cases, the driving determination is
assuming proximity, to [not] impose a private duty” (at para 29).
whether “it is just and fair having regard to that relationship [between
The Court of Appeal, for its part, seemed to jump immedi-
plaintiff and defendant] to impose a duty of care in law upon the
ately to the second, “residual policy considerations” stage, laying
defendant” (Cooper).
out a series of reasons reflected in the case law as to why any
As for the second, “residual policy considerations stage,” the
prima facie duty of care owed by regulators is usually negated.
Supreme Court in Hill v. HamiltonWentworth Regional Police Services
These include the difficulty of distinguishing between policy and
Board, 2007 SCC 41 (a case where police officers were found to owe
operational decisions (the former being immune from liability),
a duty of care to the suspects of crime) made clear that “even if a
the potential for conflict between private and public duties, and
potential conflict could be posited, that would not automatically
indeterminacy problems (Ernst v. Alberta at para 17). In the Court
negate the prima facie duty of care… A prima facie duty of care will
of Appeal’s view, many of these considerations were relevant to
be negated only when the conflict, considered together with other
the case at bar:
relevant policy considerations, gives rise to a real potential for
negative policy consequences… a duty of care in tort law should
[18] Forcing the Board to consider the extent to which it
not be denied on speculative grounds.” must balance the interests of specific individuals while
attempting to regulate in the overall public interest would
12
The Ernst Decisions
be unworkable in fact and bad policy in law. Recognizing
Perhaps the most striking aspect of both decisions is how much
any such private duty would distract the Board from its
space is devoted to the analysis of the ERCB’s duty of care in light
general duty to protect the public, as well as its duty to deal
of both courts’ conclusion that any claim against the ERCB was
fairly with participants in the regulated industry. Any such
… a fair reading of Hill suggests that an equally important factor was the
very significant personal interest (i.e. liberty) at stake.
individualized duty of care would plainly involve indeter-
Discussion on the September 15 Decision
minate liability, and would undermine the Board’s ability
Canadian law professor Bruce Feldthusen has observed that
to effectively address the general public obligations placed
“[d]ecoding the law governing the negligence liability of statutory
on it under its controlling legislative scheme.
public authorities in Canada has always been a challenge,” and
has suggested that it may be time revisit the basis upon which
One might have expected the following paragraphs to elaborate
liability for regulatory negligence will be founded.1 Certainly,
on these otherwise fairly generic concerns. The Court of Appeal,
recent events like the Lac Megantic disaster in Quebec and the
however, then switched gears entirely and simply concluded
Mount Polley spill in British Columbia do point to something
that Chief Justice Wittmann “correctly applied the test for deter-
rotten within the modern regulatory state to which the common
mining whether the Board owed a private law duty of care to
law of torts could potentially respond.
the appellant” (Ernst v. Alberta at para 19). This conclusion is
The Ernst case may or may not be the right one for such a
jarring because, as noted, the Chief Justice did not even engage
discussion. At the very least, however, it bears recalling that the
the second stage. Rather, he focused on proximity and, adopting
Supreme Court’s decision in Cooper is valued first and foremost
what could be called the “spectrum” approach applied by Justice
for bringing some much needed transparency to the duty of care
Cromwell in Fullowka, concluded that the interactions between
analysis. It would be preferable, then, for the Courts to apply the
Ms. Ernst’s and the ERCB were more like those of the unsuc-
Anns/Cooper test in a predictable, sequential manner – something
cessful plaintiffs in Cooper than those of the miners in Fullowka.
that both Courts failed to do here.
The Court of Appeal actually dismissed Fullowka as an “anomaly”
As noted above, the first step is to determine foreseeability of
(Ernst v. Alberta at para 16), which if anything suggests that they
harm. Contrary to the Court of Appeal’s assertion (Ernst v. Alberta
didn’t agree with the Chief Justice’s approach at all.
at para 16), this is actually something that most regulatory
13
negligence plaintiffs have very little difficulty establishing (see
are therefore entirely dependent on the adequacy of the regula-
e.g. Cooper at para 42, Hill at para 32, Imperial Tobacco at para 57).
tory regime.
It is precisely because foreseeability represents a relatively low
Turning to the second, “residual policy considerations” stage,
bar that finding a prima facie duty of care requires both foresee-
it is not obvious to me how owing a private law duty to those
ability and proximity. As in Cooper, then, it seems reasonably
individuals particularly vulnerable or susceptible to a regulator’s
foreseeable that Ms. Ernst would suffer some harm if the ERCB
negligence would be unworkable. Generally speaking, regulators
were negligent in carrying out its duties, especially with respect
like the ERCB and Alberta Environment are not monolithic entities
to enforcement.
– they have branches that carry out specific functions, includ-
With respect to proximity, the “spectrum of regulatory rela-
ing a compliance and enforcement branch. When this branch is
tionships” approach applied by Justice Cromwell in Fullowka and
engaged, the problem of indeterminacy would seem to be largely
adopted by Chief Justice Wittmann may be a good place to start
resolved: compliance activities are concerned with specific inci-
but it also has the potential to mask important distinctions.
dents at discrete locations. The Supreme Court’s approach in Hill,
For example, although there were differences in the relationship
which affirmed the existence of a tort of negligent investigation
and interactions between the plaintiffs and the relevant public
but also recognized the role of the standard of care in mediat-
authorities in Cooper (the registrar of mortgage brokers and
ing the spectre of liability (i.e. perfection is not required) seems
investors) and Hill (the police and their suspects), a fair reading
perfectly suited for such situations. At the very least, however,
of Hill suggests that an equally important factor was the very
defendants should have to explain – and the courts should set
significant personal interest (i.e. liberty) at stake. Arguably, Ms.
out in their reasons – the overarching policy considerations that
Ernst’s interest in the safety of her water supply is more like
justify negating any prima facie duty of care in the specific instance
the interest in Hill than in Cooper, which was a case for pure
before them.
economic loss – a category of negligence claims that Canadian
The Alberta Court of Appeal is certainly correct that there are
courts are particularly wary of. Another seemingly relevant
a number of reasons why a duty of care is not generally placed on
distinction between Cooper and Ms. Ernst is that the plaintiffs in
a regulator (Ernst v. Alberta at para 17), but it is equally true that
Cooper were voluntary investors, whereas landowners in Alberta
sometimes it is, and that regulatory negligence is a recognized
cannot refuse oil and gas activity on or around their lands and
tort in Canada.
Bus (403) 229-1500
Fax (403) 245-0074
Shawn Irwin, President
eml. [email protected] 1250, 396 – 11th Ave S.W. Calgary, AB T2R 0C5
www.petroland.ca
Representatives in: Calgary, Edmonton, Lethbridge, Regina, Carlyle, Grande Prairie, Victoria
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14
Discussion on November 7, 2014 Decision
action – a plaintiff must still prove that the defendant breached
This decision would seem to set a new standard for the transpar-
the applicable standard of care and that this breach caused the
ent and thoughtful analysis of the duty of care. Substantively, and
plaintiff’s damage. This is a complete response to those who
beginning with the first stage of the Anns test, I do have some
argue that such litigation imposes undue hardship on govern-
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
ment regulators. m
Martin Olszynski
and Alberta Environment). As the Chief Justice observed in Ernst I,
a private duty cannot arise simply because an individual commu-
Notes
nicates with a regulator (at para 28); the flip side of this is that a
1.
Bruce Fledthusen, “Simplifying Canadian Negligence Actions
duty of care should not be avoidable simply by refusing to show
Against Public Authorities – or Maybe Not” (2012) Tort L Rev 176
up. In my view, there are other relevant factors that can support
at 176 and 184.
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
* For further reading and updates to this case, please see www.
ablawg.com.
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
Martin Olszynski is an Assistant Professor of Law
at the University of Calgary, Faculty of Law.
to not blindly accept Alberta Environment’s arguments about
A previous version of this article first appeared in
potential conflict between private and public duties and indeter-
ABlawg, the University of Calgary Faculty of Law Blog.
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 counsel that finding a duty of care is not dispositive of the negligence
&
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jaguarland.ca
15
Are you missing pieces to your pending A&D transaction?
Jaguar Land’s Quality, Focused and Value Driven
Land Professionals can put the pieces together.
2015 CAPL Squash
Tournament
Saturday, March 7, 2014 at 5:00 p.m.
The Glencoe Club: 636 – 29 Ave S.W., Calgary, AB
Entry Fee: $75.00 (Includes GST, a shirt, prizes, food
and beverages)
impact the number of players eligible to play. As a result of this
downsizing, the first forty player entries received will be accepted
– so get your entry form in early!
On Saturday March 7, check in at the West entrance of the
Glencoe and head down to the squash courts. Dinner, prizes,
refreshments and some night bowling will follow in the Bowling
Alley at the Glencoe after the tournament.
Please complete the entry form on the CAPL website and send
it with your cheque made out to “2015 CAPL Squash Tournament”
to Rob Bodzioch at TORC Oil & Gas Ltd., Suite 1800 Eighth Avenue
Place, 525 8 Ave. SW, Calgary AB T2P 1G1.
The tournament is a great way to promote and market your
company and yourself. If you are interested in sponsoring this
event please contact any of our committee members:
Rob Bodzioch: [email protected]
Shaun Cooper
[email protected]
Jordan Murray
[email protected]
Nathan Laviolette [email protected]
We would like to welcome all CAPL members
and their guests to the 2015 CAPL Squash
Tournament. This tournament is a great time and suited for
Travis Monk
[email protected]
Brad Johnston
[email protected]
Brodie Barkway
[email protected]
all levels of players from beginners to the most competitive.
Due to recent renovations at the Glencoe Club, the squash area
has been reduced to five playing courts which will unfortunately
* Please note that white clothing is required for racquet sports at
the Glencoe Club. m
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2014 Merit
Awards
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
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
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
YOU HAVE A LOT ON YOUR MIND – WE CAN HELP
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.
Randy Madsen
Jason Paton
Jay Lalach
Bernadita
Tamura-O’Connor
#1 regional law firm in British Columbia,
Alberta and the territories, Canadian Lawyer
magazine (2010-2014).
17
Paul Negenman
Board Briefs
The key discussion items at the
CAPL Board of Directors’ Meeting
held November 4, 2014 at
Talisman’s offices were as follows:
• Larry Buzan updated the Board on the Centralized Marketing
initiative. A Centralized Marketing Committee will be struck
consisting of members from the Conference Committee and the
Golf Committee. This Committee will be tasked with creating a
suite of marketing opportunities for current and potential spon-
In Attendance M. Radomski B. Reynolds
A. Weldon
G. Richardson J. Covey
M. Cookson
C. De Ciancio A. Webb
K. Gibson
L. Buzan
Absent Guests
Joanna Shea
Kevin Egan
Michelle Creguer
Nikki Sitch
P. Mandry
sors. A brochure will be created detailing the various services
and support the CAPL provides to its membership, the local
community and industry as a whole. This brochure will help
educate sponsors on what their contributions are supporting.
• Michelle Radomski updated the Board on the formalization of
code of conduct expectations for the CAPL office and all CAPL
volunteers. Job descriptions and expectations, succession plan-
• Kevin Egan was invited to present a leadership training course
that he recommends adding to the educational courses currently
ning and formal performance reviews for the office staff are all
being implemented.
offered by the CAPL. The course is run by Knightsbridge and
would cater to more senior level CAPL members. The course
• Michelle Radomski updated the Board on the upcoming Industry
would run over two days and it is proposed that the content be
Night in January. Michelle recommended inviting govern-
customized for landmen at an additional cost.
ment representatives from the various oil and gas producing
provinces.
• Larry Buzan, Director of Finance, presented a Treasurer’s Report
as at October 30, 2014, showing CAPL investments totalling
• Gary Richardson advised the Board that the Public Relations
$979,188.46 CDN along with a cash balance of $258,000.74
Committee will bring the CAPL booth to Agri-Trade in Red Deer
CDN having paid out $362,274.90 in the month of October for
(November 5-8) and the Oil & Gas Education and Career Info
a total of CAPL investments of $1,237,189.20 CDN. The CAPL
Fair at Mount Royal College (November 19). The PR Committee
Scholarship Fund has a balance of $244,137.41 CDN. There were
also plans to send representatives to the Regina Agribition
no transfers made since the last report.
(November 24-29) and Junior Achievement of Southern Alberta
(November 28). A $500 donation will be made again by CAPL this
• Kent Gibson presented five Active, and three Student member-
year to the later.
ship applications to the Board of Directors, which were
subsequently approved.
• Michelle Radomski reminded Directors of the following:
• The next Board of Directors’ Meeting will be held on December
• Mandy Cookson advised the Board that the new website is
scheduled to launch on December 1. The new website will
include a cleaner and more user friendly design with current
industry updates on the front page and a suggestion box area
for members to submit ideas, comments, etc. to the Board.
There are ongoing development plans after the launch to
18
2, 2014.
• The next General Meeting will be held at the Westin on
November 13, 2014.
• The next Networking Night will be held at the Petroleum Club
on December 10, 2014. m
update membership profiles, revamp online event registration
Andrew Webb
and more.
Secretary/Director, Social
Q3 M&A Report
Corporate
Financial Services
™
October 31, 2014
CANADIAN M&A METRICS
Annual Results
Number of transactions
Total sample dollar value C$BN
Total Proven Reserves ($/BOE)
Proven + Probable Reserves ($/BOE)
Per flowing BOE Production
Cdn Par / Cdn Light (C$/bbl) - Sept/14
AECO average (C$/mcf) - Sept/14
USD FX price (month end in C$)
2008
111
$13.3
$27.97
$17.51
$59,530
$102.19
$8.16
1.2246
2009
122
$41.0
$25.68
$16.35
$56,227
$65.87
$3.96
1.0466
2010
138
$24.5
$24.10
$17.30
$64,648
$77.50
$4.01
0.9946
2011
121
$9.5
$25.72
$18.29
$65,093
$95.04
$3.63
1.0170
$18.00
$17.51
$16.35
$17.30
$18.29
$80,000
$17.22
2014
132
$20.9
$18.71
$12.83
$57,724
$100.58
$4.82
1.1275
$73,400
$64,648
$16.00
$14.00
2013
93
$10.2
$18.31
$12.76
$58,769
$92.83
$3.18
1.0636
Flowing BOE Production
$20.00
2012
130
$43.4
$22.93
$17.22
$73,400
$86.16
$2.39
0.9949
$12.76
$59,530
$60,000
$12.83
$65,093
$56,227
$58,769
$57,724
2013
2014
$12.00
$10.00
$40,000
$8.00
$6.00
$20,000
$4.00
$2.00
$0.00
2008
2009
2010
2011
2012
2013
$0
2014
2008
2009
2010
2011
2012
Quarterly Results
Number of transactions
Total sample dollar value C$MM
Total Proven Reserves ($/BOE)
Per flowing BOE Production
Proven + Probable Reserve Life Index (years)
Light Oil Weighted transactions (> 70%, $ per BOE)
OIL - Proven + Probable Reserves
OIL - Per flowing BOE Production
Gas Weighted transactions (> 70%, $ per BOE)
Gas - Proven + Probable Reserves
Gas - Per flowing BOE Production
Q2 13
18
$2,042
$19.99
$11.67
$51,711
13.0
7
$18.72
$81,892
4
$5.81
$21,181
Q3 13
29
$3,652
$16.58
$10.52
$55,813
15.7
2
$18.85
$86,552
7
$5.87
$23,204
Q4 13
31
$4,196
$18.81
$14.86
$66,594
17.3
10
$18.17
$89,203
2
$3.14
$20,745
Q1 14
31
$6,318
$18.11
$13.60
$50,055
13.3
7
$23.68
$88,509
13
$5.20
$26,674
Q2 14
40
$8,705
$19.24
$12.95
$63,840
18.2
12
$20.55
$89,492
9
$5.10
$31,192
Q3 14
49
$3,009
$18.38
$12.26
$62,169
11.9
10
$20.17
$100,743
9
$6.83
$28,266
Q4 14
12
$2,844
$20.28
$11.32
$48,836
12.3
3
$32,433
Average Prices - Sept 2014
Canadian Par / Cdn Light (C$/bbl)
Canadian Heavy (C$/bbl)
AECO gas price average (C$/mcf)
USD FX price (month end in C$)
Q2 13
$92.16
$79.30
$3.54
1.0512
Q3 13
$104.71
$93.01
$2.45
1.0285
Q4 13
$86.28
$69.75
$3.52
1.0636
Q1 14
$99.80
$84.13
$5.75
1.1048
Q2 14
$104.18
$90.73
$4.69
1.0661
Q3 14
$97.75
$84.40
$4.02
1.1208
Q4 14
1.1275
Flowing BOE Production
$16.00
$14.86
$13.60
$14.00
$12.00
$80,000
$12.95
$11.67
$12.26
$10.52
$66,594
$11.32
$60,000
$51,711
$62,169
$50,055
$10.00
$8.00
$63,840
$55,813
$48,836
$40,000
$6.00
$4.00
$20,000
$0
$0.00
Q2 13
Q3 13
Q4 13
Q1 14
Q2 14
Q3 14
Q4 14
Q2 13
Q3 13
Q4 13
Q1 14
Q2 14
Q3 14
Q4 14
Questions? Please contact:
Craig Mathison @ (403) 731-3822; [email protected]
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.
19
$2.00
Get Smart
The CAPL Education Committee is pleased to present the following courses:
Preparing for a Surface Rights Board Hearing (PSL®)
December 04, 2014
8:30 a.m. to 4:30 p.m.
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
This course will begin by covering the types of surface rights board
strengthen their teams, improve their self-awareness and sharpen
hearings, including compensation, rent review, damage claims
their leadership skills. The course also includes a number of prac-
and back rent. The next section will focus on the structure of the
tical exercises that can be used to overcome hurdles that stand in
hearing and deal with procedural elements, evidence taken under
the way of building an effective team.
oath, direct and cross examination of witnesses and questions
from the board. From there the course will focus on evidentiary
Directive 056: ERCB Energy Development Applications Public
issues like the burden of proof and discuss privacy issues before
Consultation Requirements (PSL®)
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.
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
This seminar is built on the assumption that great teams
enough to allow all parties who are affected to be sufficiently
attract great team players, and that great team players on great
aware of not only the proposed project, but the Board process
PEACE
Merry Christmas, from our family to yours.
20
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
Crown Land Sales
and
Freehold Mineral Leasing
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.
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.
Surface Land Fundamentals
January 22, 2015
8:30 a.m. to 4:30 p.m.
This course is provided for professionals such as mineral landmen, 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
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
surface land is beneficial but not required.
Economic Considerations for Land Deals
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
Pursuing Perfection
www.synergyland.ca
| 1.877.961.LAND (5263)
21
January 28 & 29, 2015
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”
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
KEY PERSONNEL
Surface Acquisition: Randy Funkhouser
[email protected]
Mineral Acquisition: Mikala Hansen
[email protected]
With over 100 employees across Canada,
contact Standard Land to discuss your project today.
Crown & Mineral Administration: Terri Dechka
[email protected]
FULL SERVICE PROVIDER OF LAND SERVICES
Head Oﬃce Calgary Tel: 403-265-1116
1300, 734 - 7th Ave SW, Calgary, AB T2P 3P8
[email protected]
www.standardland.com
Calgary: 1-866-858-1116
Vancouver: 1-877-687-1102
Standard Land Company Inc
Regina: 1-866-441-2039
Winston E. Gaskin, President
Toronto: 1-877-598-1116
The Negotiator’s
Message From
the 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,
Member Services
The
Member
Services
Portfolio is devoted to
maintaining a superior
Association with high quality members, opportunities
and benefits. Although I have only
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
been working with Member Services for a short time, it has been
outstanding contributions that have been made and it is essential
exciting to work with this professional and committed group
that we receive member participation, for input and nominations,
of volunteers. It is the incredible volunteers that define CAPL,
to ensure they are recognized.
making it a valuable Association for its members.
The awards that are presented are the Herb Hughes
As of October 2014, our membership consists of 1,558 Active
Memorial, CAPL Distinguished Citizen, CAPL Award of Merit, CAPL
members, 122 Senior members, 75 Associate members, 49 Life
Outstanding Graduate, Bright Lights, Volunteer Supporter, and
members and 46 Student members.
Friends of CAPL. If you know of any individual or organization that
Member Services is divided into three committees which over-
would be eligible for one of these awards, please don’t forget to
see membership admissions, the Merit Awards, the CAPL roster,
make those nominations.
member benefits and compensation.
Committee Members
Membership Admissions Committee
Larry Buzan (Committee Chairman), Brad Reynolds, Rob Pettifer, Robyn
Active, Associate and Student membership applications go
Baron, and Suzanne Stahl.
through a three step process. They are first sent to the CAPL
office where they are reviewed to ensure all forms are filled
CAPL Roster
out correctly and membership information about sponsors is
It is very common for individuals in our membership to change
accurate. The applications are then sent to the Membership
companies and move to different opportunities throughout their
Admissions Committee, who meet once a month, to confirm
careers. It is essential for us to keep our online database and
all application requirements are satisfied. If the Admissions
Roster updated as these changes occur. Irene Krickhan at the
Committee approves the application it is then sent to the
CAPL office is responsible for adding individuals to the Roster and
Director of Member Services who will present the applications
making all the required changes. The majority of our membership
qrtrhoriz4CfinPage
as a motionElexco_Negotiator
to the CAPL Board
of Directors at1 the6/24/11
monthly7:47:54
Board PM
uses the Roster on a regular basis, and thanks to Irene’s hard work
A FULL SERVICE LAND COMPANY SERVING NORTH AMERICA
Elexco Ltd.
Canada: 1.800.603.5263
www.elexco.com
Elexco Land Services, Inc.
New York: 1.866.999.5865
Michigan: 1.800.889.3574
Pennsylvania: 724.745.5600
23
• Mineral and Surface Leasing
• Right-of-Way Acquisitions
• Mineral Ownership/Title Curative
• Seismic Permitting
• Mapping/GIS Services
• Abstracts of Title
we can rely on it. Please keep in mind that it is your responsibility
Administration, and Land Management. Once the job family was
to make sure your information is correct and up to date, so please
identified it was again split out into six levels of experience from
continue to do so.
Entry Level to Executive Level. A lot of work went into putting
this survey together, so I want to thank everyone who partici-
Member Benefits
pated in the survey and each individual within the committee
Another aspect of the Membership Services portfolio is to oversee
that made this valuable piece of information available to our
our member insurance benefits. Each year the Director of Member
membership. The results of the survey can be found under the
Services reviews our policies with Nexgen Financial to ensure our
2014 CAPL Compensation Survey link on the Members Only page
members are receiving top value from our policies. Benefits to all
of the CAPL website.
Active and Lifetime members include Best Doctors, accidental
death/dismemberment, and life insurance.
Committee Members
Some additional benefits that were made available to our
Bob Bachynski (Committee Chairman), Adam Wolfenden, Amanda
membership in 2013 include discounts on services from various
White, Bonnie Cioni, Colleen Bailey, Craig Bisschop, Danell Kokol, Diane
organizations. These discounts can be found under the Additional
VanderVeen, Heather Stables Fofonoff, James Armstrong, Lynn Viehweger,
Membership Benefits link on the Members Only page of the CAPL
Sharon Gordon, and Teresa Strom.
website. If you haven’t had a chance to look at the discounts available to you, I recommend taking the time to do so. The discounts
Thank you once again to all of the great volunteers that make
currently available to CAPL members include personal insurance,
CAPL such a successful and valuable Association for its members.
a land tool, and fitness membership.
Also, a big thank you to the CAPL office staff: Denise Grieve, Karin
Steers, Irene Krickhan and Kaitlin Polowski for all their hard work
Compensation Survey Committee
In Q1 2014 a compensation survey was sent out to membership,
of which 629 members participated. For relevance the survey data
Kent Gibson
was split into six different job families: Negotiations, Contracts
Director, Member Services
Landman, Surface Land Agent, Acquisitions and Divestitures,
24
and support. m
Roster Updates
New Members
The following members were approved by a
Motion on November 4, 2014:
Applicant
Current Employer
Sponsors
Raging River Wayne Ellis
Active
Meghan Hockaday
Exploration Inc.John Miele
Sheila Howe
Walter Vrataric
Imperial Oil ResourcesJohn Charuk
Mark Pinsent, P.Land
Seeking
Renewed Depth
In A
Land Services
Provider?
Greg Strachan, P.Land
Amy Jones
ConocoPhillips CanadaMichelle Forrest
Jessica Jonassen
Sean McLeod
Irene Mercer
Spyglass ResourcesMarilou Corsino
Corp.Ann Janicki
Cindy Miller
Karen Middleton
TAQA North Ltd.Linda Bourcier
Karen Hertel
Cari Williams
Student
Tate Aronovich
Olds CollegeNicola Millions-Hollamby
Colleen Miller
Mount Royal UniversityJillian Philpott
Danielle Suchan
Mount Royal UniversityJillian Philpott
m
On the Move
Aim Land Services Ltd.
to ATCO Pipelines a division of ATCO Group
Trevor Burke
Penn West Exploration
to Centrica Energy Canada
Ruth Cross
Kingsmere Resources Ltd.
to Sifton Petroleum Inc.
Brad Crowe
Tiercel Energy Inc.
to Independent
Jaquelyn Djuranic
Independent
to TransCanada
Sharon Gordon, P.Land
Sentinel Enterprises Inc.
to Manitok Energy Inc.
George Hardisty
West Valley Energy Corp.
to Independent
toll free: 1.877.998.1500 | www.integrityland.com
25
Nathaniel Barker
Integrity
Runs
Deep
Ryan Heath
Hyperion Exploration Ltd.
Russell Ray
Visser Consulting Ltd.
to Striker Exploration Corp.
to Visser Deloitte
Lewis Johnson
Birchcliff Energy Ltd.
Korey Revenco
Visser Consulting Ltd.
to Independent
to Visser Deloitte
Amy Kalmbach, P.Land
Incipient Exploration Ltd.
Karen Riep
Indian Oil and Gas Canada
to Striker Exploration Corp.
to Independent
Jeff Leggett
Shell Canada Energy
Craig Ruddy
PrairieSky Royalty Ltd.
to Seven Generation Energy Ltd.
to Independent
Zack MacPhee
Scott Land & Lease Ltd.
Steve Sawyer
Harvest Operations Corp.
to Brion Energy
to Plains Midstream Canada
Mark Mason
Cenovus Energy Inc.
Steven Schneider
Independent
to Brymark Energy Inc.
to OMERS Energy Inc.
Curtis McLauchlin
Southern Pacific Resources Corp.
Jennifer Schroeder
PrairieSky Royalty Ltd.
to TransCanada
to Independent
Wade McLeod
Independent
Peter Sticksl
Mosaic Energy Ltd.
to Scott Land & Lease Ltd.
to Independent
Steve Moran
Stellavista Capital Corp.
Jared Tchir
Integrity Land Inc.
to Corridor Resources Inc.
to TransCanada
Ken Murias
Arriva Energy Inc.
Nolan Treble, PSL
to Baseline Oil & Gas Inc.
to Legacy Oil + Gas Inc.
Brett Norrie
Husky Oil Operations Limited
Robert Welch
Lone Pine Resources Canada Ltd.
to Tourmaline Oil Corp.
to Independent
John Parry
TBS Energy Corp.
Kevin Wolters
to Revel Resources Corp.
to Independent
Sherry Phan
Imaginea Energy Corp.
to Independent
Christina Wong
Rife Resources Ltd.
to ConocoPhillips Canada
Craig Pittman, P.Land
Independent
to Pengrowth Energy Corporation
Troy Wylie
Independent
to Visser Deloitte
m
w w w. p r o g r ess l a n d . c o m
1.866.454.4717
12831 – 163 Street, Edmonton, Alberta T5V 1M5
26
Capl General
Meeting and
Industry Night
Introducing a New Meeting Format
January 15, 2015, 4:00 PM
Calgary Westin Hotel
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
volunteers representing numerous CAPL Committees, our invited
Government Oil & Gas Ministry representatives and select industry information service providers.
Deborah Yedlin
Calgary Herald Business Columnist
Taking Care of Business, The
Calgary Way
Deborah
has
covered
the
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
energy sector as a colum-
introduced for our members to invite, not only our managers,
Globe and Mail and is currently
but all of our technical peer group (the geologists, geophysicist,
the business columnist with
engineers, CEOs, CFOs, etc.) as guests, to join us for an evening
the Calgary Herald. Prior to her
of informative networking and the opportunity to listen to
career switch to journalism,
our keynote speaker, Deborah Yedlin, Calgary Herald Business
Deborah worked as an invest-
Columnist. The evening will start with a cash bar and hors
ment banker on Wall Street and
d’oeuvre service at 4:00 p.m. The General Meeting will be held
Bay Street. Deborah holds a B.A. in Economics from the University
promptly at 5:00 p.m. and the keynote speaker will then present
of Alberta, an MBA from Queen’s University and is a member of
her thoughts on “The Energy Eco-System: Land, Labor and Capital”
nist and radio commentator
for CBC since 1996. She has
worked for the Financial Post,
the Institute of Corporate Directors. m
27
2015 CAPL
Conference
At 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
Newfoundland’s unique culture, 20 individuals (or “come-fromaways”) were ‘Screeched-In’, complete with the requirement to
kiss the cod. All were presented with a certificate to officially
recognize them as Honourary Newfoundlanders.
This is the first time the conference is heading to St. John’s.
Many oil and gas companies have offices in St. John’s, including
majors ExxonMobil, Husky, Statoil, Suncor and Chevron, and
hundreds of industry service companies. St. John’s harbour is one
Newfoundland and Labrador seems to be on everyone’s bucket
of the busiest in Canada, largely supporting offshore oil produc-
list, so the conference presents a great opportunity to make the
tion and seismic/drilling operations.
trip, not only for the conference but to spend some time exploring
Downtown St. John’s looks a lot like Calgary with construction
the Rock. Besides the great program we’ll offer many activities
cranes for new office buildings, new condos under construction,
for delegates and guests to heighten their experience in Canada’s
and many renovation
youngest Province.
projects. The airport
We’ve made arrangements with the Sheraton Newfoundland
is under expansion
hotel as our host which has recently undergone an 11 million
including
dollar renovation.
installa-
tion of GPS so planes
can land in the fog!
Our
theme
is
Please join us in St. John’s, Newfoundland and Labrador, from
Sunday September 20 to Wednesday September 23, 2015. m
Navigating the Future,
I’m pleased to introduce the committee executive:
a nod to the mari-
Chair
Colin McKinnon
time
location
and
Administration
Colleen Allen
central organizing principal of our program. We’ll focus on the
Finance
Dave Bernatchez
landman’s role in our dynamic industry. We’ll consider how the
Program
Denis McGrath
landman’s traditional role has evolved to today’s negotiating
Activities
Mary Gothard and Kelly Pypers
landmen. Negotiating landmen may need to broaden their scope
Marketing
Gary Cole
to extend a unique and valuable skill set. We’ll also gaze into the
crystal ball with a broader look at what the future holds for the
Colin McKinnon
industry and our profession both onshore and offshore.
Chair of the 2015 CAPL Conference
Land Acquisitions
Freehold Mineral Secialists
Surface Acquisitions
Pipeline Right-of-Way
Rental Reviews
Damage Settlements
Crown Sale Attendance
Title Registration
Potash Projects
Wind Generation Projects
Suite 201, 2629 – 29th Avenue
Regina, Saskatchewan S4S 2N9
28
WESTERN CANADA LAND SALE and DRILLING RIG REVIEW
October 2014
Land Sale Data
5,000.00
British Columbia
Alberta
Saskatchewan
AREA
Manitoba
BC
4,500.00
4,000.00
3,500.00
Average $/Ha
3,000.00
Total Ha
Sold
Average
$ / Ha
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
NOTE: Numbers are rounded
2,500.00
2,000.00
1,500.00
1,000.00
500.00
0.00
Drilling Rig Utilization Rate
Drilling Report for Last 5 Years
70%
60%
50%
900
40%
800
700
600
Drilling
500
Down
400
Total
300
Total
Down
Drilling
200
100
0
October
2009
October
2010
October
2011
October
2012
October
2013
October
2014
30%
Utilization Rate
20%
10%
0%
October
2009
October
2010
October
2011
October
2012
October
2013
October
2014
THE EXPERTS IN LAND ACQUISITION AND MANAGEMENT SERVICES.
LandSolutions LP #200, 601 - 10 Ave SW Calgary, AB T2R 0B2 1-866-834-0008
www.landsolutions.ca
Student’s Corner
she
is
someone
that I can contact
for advice at any
Women in Energy
When 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
given
program was extensive, and required both commitment and dedi-
try mentor assigned
cation. Secondly, I had heard that there were few females in this
to
me
line of work, which I had also inferred due to the job title itself
the
University
being “Landman.” However, I was pleasantly surprised to discover
Calgary PLM Mentor
that the latter information was inaccurate. I entered the program
Program. She has also been an incredible source of knowledge and
to learn that not only would I be in the 2014/2015 graduating class
encouragement for my studies and has introduced me to several
with five other women, but that these women would also become
key people in this industry.
time
who
has
an
sive
background
exten-
in Land. Connie is
my “official” industhrough
of
L to R: Taylor Blanchard, Brittany D’Adamo, Dinora
Santos, Natalie Gillespie, Julia Sande and Sumeet Brar
good friends that I would share similar interests with! I was also
As we finish off our final year of studies, it is our hope as
surprised to discover from my networking experiences that there
a female student group, that we will continue to make strong
are many successful female Landmen, who are key contributors in
connections with both men and women in our chosen field that
the success of the companies they work for.
will assist us in our future careers as Landmen. In addition to this,
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,
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!
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
Dinora Santos
I have had the privilege of working under her this past summer;
Fourth Year PLMA Student
m
Celebrating 65 years of
land surveying and geomatics
in Western Canada.
Service Beyond Boundaries.
www.midwestsurveys.com
30
The Social Calendar
Event
DATE
TIME
LOCATION
COST
(INCLUDING GST)
CONTACT NAME
CONTACT PHONE
CONTACT EMAIL
REGISTRATION
DEADLINE
CAPL Christmas
Networking
10-Dec-14
4:00 PM
Calgary Petroleum
Club
Student Members: Free
Non-Members: $94.50
Karin Steers
(403) 237-6637
[email protected]
3-Dec-14
CAPL January
Meeting
15-Jan-15
5:00 PM
The Westin Hotel
Members: $42.00
Student Members: $42.00
Non-Members: $94.50
Kaitlin Polowski
(403) 237-6637
[email protected]
8-Jan-15
CAPL Ski Trip
30-Jan-15
7:30 AM
Lake Louise
Members: $135
Non-Members: $150
Natalie Carson
(403) 476-7530
[email protected]
23-Jan-15
CAPL Squash
Tournament
7-Mar-15
5:00 PM
The Glencoe Club
$75.00
Rob Bodzioch
(403) 930-4184
[email protected]
6-Mar-15
* Please note: Registration forms can be downloaded from the CAPL website:
General Meetings: http://landman.ca/events&meetings/general_meetings.php
Social: http://landman.ca/events&meetings/social_events.php
Have a very Merry Christmas and Best Wishes for the Holiday Season!
1-866-528-2558 Medicine Hat
1-855-425-2530 Edmonton
actionland.ca
31
[email protected]
CAPL Calendar
of Events
December Meeting
December
Reception: 4:00 p.m.
1
2
2
3
3
4
9
9
10
10
11
17
25
26
Saskatchewan Land Sale
Tuesday
Board Meeting
Tuesday
Drilling & Production Operations
Wednesday Alberta Land Sale
Wednesday Professional Ethics: Case Studies for Landmen
Thursday Preparing for a Surface Rights Board Hearing (PSL®)
Tuesday Professional Ethics: Theory and Application
Tuesday
Overcoming the Five Dysfunctions of a Team
Wednesday British Columbia Land Sale
Wednesday
Directive 056: AER Energy Development Applications
Public Consultation Requirements (PSL®)
Thursday Negotiation Skills for Surface Land Agents (PSL®)
Wednesday Alberta Land Sale
Thursday Christmas Day
Friday
Boxing Day m
Monday
January
1 Thursday
6
14
15
21
21
22
28
28, 29
Tuesday
Wednesday
Thursday
Wednesday
Wednesday
Thursday
Wednesday
Wed-Thu
New Year’s Day
Board Meeting
Alberta Land Sale
CAPL Industry Night
British Columbia Land Sale
ROFR Issues: An Interpretive Approach
Surface Land Fundamentals
Alberta Land Sale
Economic Considerations for Land Deals
December 10, 2014
CAPL Christmas Networking
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 attendance by emailing before noon on December 3, 2014
m
January Meeting
January 15, 2015
Industry Networking Event
Speaker: Deborah Yedlin
Business Columnist, The Calgary Herald
m
Time:
5:00 p.m.
Where:
The Westin Calgary
320 – 4 Avenue S.W.
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32
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Revisiting Regulatory Negligence: The Ernst Fracking Litigation

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