Surface rights under the Mineral Act of British Columbia
University of British Columbia
Master of Laws - LLM
The subject of this thesis is the rights of mineral operators under the British Columbia Mineral Act to enter and use the surface of land for the purposes of mineral exploration and development. The particular objective is to ascertain whether surface rights questions are to be decided by reference to the Mineral Act alone, or whether common law principles and real property rights can be relied upon to clarify, enlarge or restrict the legal position of the mineral operator or the surface owner. The Mineral Act is compared with the common law rules on the working of minerals and with the oil and gas surface rights arbitration system. The thesis begins with a description of the mineral industry in British Columbia and the patterns of land ownership and mineral ownership within the province. The longstanding policy of reserving all mines and minerals to the province on the occasion of a Crown grant of land is an important part of this pattern, and attention is given to the judicial interpretation over the years of the words "mines" and "minerals", as those words are used in such reservations. The general purpose and scheme of the Mineral Act is then described. Particular consideration is given to the evidence that indicates that the holder of a mineral claim has a right that is in the nature of an interest in land. Chapter III is a review of the common law principles governing the rights of mineral operators to enter win and work minerals where the minerals and the surface are owned separately. These rights are found to depend on the terms of the instrument that severed the ownership of the minerals and the surface, as construed by the courts in accordance with certain well-defined presumptions. The right of support of the surface is one of the main presumptions. The surface rights provisions of the Mineral Act are studied in depth in Chapter IV in order to understand the legal rights of the surface owner and mineral operator. In turn, attention focusses on the ways in which land is made open or closed for mineral purposes, the extent of the rights granted to the mineral operator to use and possess the surface, his obligation to compensate the surface owner for loss or damage caused by his entry, his right to take possession of the surface and the implications of that possession. The brief surface rights sections of the Act are found to establish a system characterized by inflexibility and absoluteness of effect. Chapter V analyzes the surface rights system established under the Petroleum and Natural Gas Act. Similar to procedures in other western provinces, this system is more adaptable, resorting to the flexible powers of a special Board of Mediation and Arbitration. The Mineral Act is then compared with each of these other systems so that their characteristics may be better understood. Chapter VII investigates the possibility of using the common law surface rights principles to supplement the Mineral Act, but concludes that, for Crown minerals within the definition of the Act, the better view is that the common law principles have been completely extinguished by the statute. Chapter VIII ends with a brief consideration of factors that would bear on any reform of the Mineral Act.
Law, Peter A. Allard School of