Crown Oil and Gas Leases as Intangible Personal Property


A recent Alberta Court of Queen's Bench decision has confirmed that a Crown oil and gas lease may be considered intangible personal property to which the Personal Property Security Act applies. 

An oil and gas producer had, in a general security agreement, granted security over "all present and after acquired personal property" to one of its creditors.  The creditor had registered the security interest in the personal property registry. 

Later, in the course of a receivership application, it became necessary for the Court to determine whether the Crown oil and gas lease was covered by the general security agreement. 

The Court reviewed existing caselaw on oil and gas leases, and also relied heavily on the Supreme Court's decision in Saulnier (which held that a fishing license was intangible personal property). The Court ruled that Crown oil and gas leases are indeed intangible personal property to which the general security agreement (and the charge against "all present and after acquired personal property") and the Personal Property Security Act would apply:

[31] In my view, the oil and gas lease in this case which grants a right (or licence) to Shamrock to access, drill for and extract the resource or substance from the ground is analogical and identical to a commercial fishing licence which grants the right to harvesting of fish resource as discussed in Saulnier. This is in the sense that during the term of the oil and gas lease/licence, Shamrock, the lease holder has a beneficial interest to the earnings from its oil and gas lease: Saulnier at para 29. The right to exclusively extract oil and gas by Shamrock, the lease holder coupled with a proprietary interest in the extracted resource pursuant to the terms of the lease/licence, "bears a reasonable analogy to rights traditionally considered at common law to be proprietary in nature": Saulnier at para 34.

[32] In the result, I conclude that Shamrock's oil and gas lease is a proprietary interest within the purposive contemplation of Alberta's Personal Property Security Act: Saulnier at para 34; Stout & Company LLP v Chez Outdoors Ltd, 2009 ABQB 444 (CanLII), 2009 ABQB 444 at para 39, 9 Alta LR (5th) 366 [Chez Outdoors]. Shamrock's oil and gas lease is covered by the GSA and Alberta's Personal Property Security Act in the category of "intangibles": Chez Outdoors at para 15. That right is transferable and falls within the power and authority of a court
 

The case is Kasten Energy Inc. v. Shamrock Oil & Gas Ltd., 2013 ABQB 63

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