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November/December 1997 issue	In this issue Table of Contents Editor's Notebook Feature: Mussel bound Feature: Global warming Write to Know À la carte Our Home and Native Tongue

Underground rights

Say I'm planting a tree in my backyard and I strike gold, do I own the gold?
- Jeff White, Ottawa

PROBABLY NOT.

Mineral rights in Canada are a provincial matter, and the provinces regard themselves as the owners of all the gold (and copper and iron and oil and whatever else) in the ground. It doesn't matter if you have legal title to the land. Surface rights and mineral rights are separate things, and just because you own one doesn't mean you own the other.

The provinces lease mineral rights (that is, the exclusive right to search for and develop mineral bodies) to individuals or mining and oil companies on both Crown land and privately-held land. So if you want to keep the gold you find in your own backyard, you better acquire the mineral rights to your property before someone else (literally) buys them out from under you.

Not only that, but most jurisdictions regard property owners and mineral rights owners as having more or less equal claim to the land. As a rule, it is against the law for property owners to prevent holders of mineral rights from exploring or staking claims on land they "own."

In some provinces, like Nova Scotia, prospectors must gain the landowner's or tenant's permission to trespass. In others, including British Columbia, they don't even have to tell the landowner. "Free Miners" authorized under B.C.'s Mineral Tenure Act may trespass, cut trees, even build roads on private property (except cultivated land, land occupied by buildings, and the "curtilage of a dwelling house") without telling the owner — even if a government publication advises that it is "a matter of good business conduct" to tell the landowner what you are up to.

Traditionally in Europe, resources were included in property ownership — though from ancient times, any deposits of gold or silver belonged to the crown. In some older settled areas of Canada, mineral rights are sometimes included in property rights, too, for instance on land acquired in Alberta in the 19th century, or on property granted in Ontario before May 6, 1913, when a new lands act was passed.

That latter law means that property owners in southern Ontario often own their own mineral rights, but not those in Northern Ontario — which is where all the minerals are. If you found gold in your backyard in a place like Timmins, it probably would not be yours.

Where property owners may sometimes actually gain from having minerals under their feet is in negotiating to allow the mineral rights owner onto the land to extract the minerals. Oil wells in wheat fields mean an annual payment of several thousand dollars to prairie farmers. Just the same, if a property owner bargains too hard, the miner might just move next door. Mine tunneling or slant-hole drilling for oil can often get the mining or oil company what it is after anyway.

The provinces' usual rationale in reserving mineral rights is that it ensures that resources are exploited and not simply left in the ground by indifferent land owners. But the idea of holding back something when granting land is an old one. In the days of wooden ships, many Canadian lands were granted with the white pines reserved for the Crown. At other times, all trees were reserved, or sometimes the sand and gravel. Owners of private property today understand that air rights have been withheld — you cannot stop an airplane from flying over your house — or that governments sometimes withdraw ownership, as in expropriation for road-widening.

So in a nutshell, if you dig a hole and find gold, it might be simpler just to plant a tree and let the gold enrich its roots.

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