The advantages of electricity generation from renewable resources are numerous; for the moment at least, sunlight and wind are free for the taking (when they are present), solar and wind projects generate few direct carbon emissions, and the 'fuels' are not depleted through the generation of electricity. At the same time, interest in addressing climate change and renewable energy is surging, with major investment funds announcing they will no longer fund certain hydrocarbon based investments2 and address climate change risks of the companies they invest in. 3 It seems that not a week goes by without a major player announcing a commitment to becoming carbon neutral in their operations, 4 and leaders of several large Canadian corporations (including several oil and gas producers) called upon the Federal Government to invest in a 'green recovery' following the COVID-19 pandemic. 5

Although Alberta has traditionally been an oil and gas producing province, renewable electricity has a long, and growing, history here. Canada's first commercial wind farm was installed in 1993 near Pincher Creek, Alberta.6 As of 2016, Alberta generated 12.3% of its electricity from renewable sources. 7 The World Bank's country factsheet for Canada indicates photovoltaic power potential in the south and eastern portions of Alberta8 and, with respect to wind energy, significant wind power potential is located in the same area, largely concentrated east of the Rocky Mountains. 9

Given current market conditions, renewable electricity generation in Alberta will likely grow, and more projects will be developed. However, there is one resource, critical to the development of every renewable project which is in limited supply: land. In the immortal words of Mark Twain (or Will Rogers) "They ain't making any more of it." As the number of renewable energy projects grows, CAPL members may be called upon to negotiate leases for renewable energy projects. This article identifies some of the unique considerations which may apply to land leases for renewable energy projects, from a project owner perspective.

TERMINOLOGY

In this article, the lease in question is a lease of the surface land, similar in principle to the CAPL-95 surface lease which readers will likely be familiar with, as distinct from the CAPL-91, CAPL-99, and CAPL-2014 mineral leases. In legal terms, the latter create a profit a prendre which gives the lessee the right to search for and win the leased substances. The former, and leases which are the subject of this article, create an interest which generally provide the lessee with the right to occupy and use the surface of the land.

Practically speaking, project owners may have a standard form land lease which forms the basis for negotiation with the landowner but, currently, there is no standard form like CAPL-95 for renewable energy project leases. As there is no set expectation for the terms of a renewable lease, this means that any and all terms are up for negotiation, subject only to the creativity and relative bargaining power of the parties.

LEGISLATIVE SCHEME

P&NG leases are subject to the Land Agents Act, which requires licensed land agents to negotiate, with some limited exceptions. 10 However, no similar restriction is in place with respect to renewable projects leases, so negotiation is anyone's game.

Unlike P&NG leases, the Surface Rights Act11 currently has limited application to renewable project leases. Unlike minerals, there is currently no split title system with respect to renewables which would allow a project owner to obtain rights to solar or wind resources without obtaining rights to the land under those resources. This may impact the negotiation dynamics as between the project owner and landowners. Unlike the situation where a landowner can be compelled to provide access, access to land for a renewable project can only be gained on terms acceptable to the landowner. Where a planned project requires a significant amount of land, covering multiple landowners, confidentiality provisions and well-timed negotiations may be necessary to ensure the last landowner is not able to hold out and extract additional concessions from the project owner.

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Footnotes

1. Daniel B.R. Johnson is a partner at Borden Ladner Gervais LLP. This article is presented for information purposes only and is not legal advice. Each specific project and lease will have their own challenges and considerations, so specific legal advice should be obtained.

2. https://www.goldmansachs.com/s/environmental-policy-framework/#climateChangeGuidelines (accessed July 23, 2020).

3. https://www.goldmansachs.com/s/environmental-policy-framework/#climateChangeGuidelines; https://www.blackrock.com/corporate/investor-relations/blackrock-client-letter (last accessed July 23, 2020); https://www.db.com/newsroom_news/2020/ deutsche-bank-to-end-global-business-activities-in-coal-mining-by-202 5-en-11650.htm (last accessed July 27, 2020).

4. See, for example: "Apple commits to be 100 percent carbon neutral for its supply chain and products by 2030" Press Release, July 21, 2020, https://nr.apple. com/dE9n5d3o7T, (last accessed July 23, 2020).

5. "Open letter from business leaders calls for bold green recovery", June 29, 2020; https://www. corporateknights.com/channels/leadership/open-letter-business-leaders-calls-bold-green-recovery-1593 4468/ (last accessed July 23, 2020).

6. "Alberta and Modern Wind Power" http://www. history.alberta.ca/energyheritage/energy/windpower/alberta-and-modern-wind-power.aspx; (last accessed July 23, 2020).

7. "Canada's Renewable Power Landscape – Energy Market Analysis 2017, National Energy Board, p. 13 (https://www.cer-rec.gc.ca/nrg/sttstc/lctrct/ rprt/2017cndrnwblpwr/2017cndrnwblpwr-eng.pdf).

8. Global Photovoltaic Power Potential Country Factsheet: Canada; World Bank Group (2020) https:// globalsolaratlas.info/global-pv-potential-study (last accessed July 28, 2020).

9. Wind Energy in Canada/L'energie eolienne au Canada; Canadian Geographic Enterprises (2009) (https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/ canmetenergy/pdf/fichier/81770/windtrm_resource_ map.pdf) (last accessed July 31, 2020).

10. Land Agents Act RSA 2000 c L-2.

11. Surface Rights Act RSA 2000 c S-24.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.