January 11, 2007
This letter is to follow up on our telephone conversation, where you
asked the following three questions:
- What is included in "mines and minerals" and where is
this defined?
- Does an action in trespass include trespass to the subsurface by
directional drilling?
- Does the Environmental Law Centre (ELC) have a succinct paper on
the extent of landowners' rights, particularly with the respect to
trespass? If not, would the ELC be interested in being
retained to do this work?
(1) "Mines and Minerals"
To answer the first part of your question, the definition of
"mines and minerals" is found in the Mines and Minerals Act.
Section 1(1)(p) defines "mineral" as follows:
(p) "minerals means all naturally occurring minerals, and
without restricting the generality of the foregoing, includes
(i) gold, silver, uranium, platinum, pitchblende, radium, precious
stones, copper, iron, tin, zinc, asbestos, salts, sulphur, petroleum,
oil, asphalt, bituminous sands, oil sands, natural gas, coal,
anhydrite, barite, bauxite, bentonite, diatomite, dolomite, epsomite,
granite, gypsum, limestone, marble, mica, mirabilite, potash, quartz
rock, rock phosphate, sandstone, serpentine, shale, slate, talc,
thenardite, trona, volcanic ash, sand, gravel, clay and marl, but
(ii) does not include
(A) sand and gravel that belong to the owner of the surface of land
under section 58 of the Law of Property Act,
(B) clay and marl that belong to the owner of the surface of land
under section 57 of the Law of Property Act, or
(C) peat on the surface of land and peat obtained by stripping off
the overburden, excavating from the surface, or otherwise recovered by
surface operations;
For completeness, I have also included the relevant sections of the Law
of Property Act dealing with sand, gravel, clay and marl referenced
above. Sections 56-58 read as follows:
Mineral declaration
56(1) Each of the following substances that naturally occurs within,
on or under land is hereby declared to be and at all times to have been
a mineral: anhydrite, barite, bauxite, bentonite, diatomite, dolomite,
epsomite, granit rock, gypsum, limestone, marble,mica, mirabilite,
potash, quartz rock, phosphate, sandstone, serpentine, shale, slate,
talc, thenardite, trona, volcanic ash.
Clay and marl
57(1) In this section, "clay" or "marl" does not
include any substance named in 56(1).
(2) The owner of the surface of land is and is to be deemed at all
times to have been the owner of and entitled to clay and marl on the
surface of that land, and all clay and marl obtained by stripping off
the overburden or excavating from the surface, or otherwise recovered by
surface operations.
(3) The clay and marl referred to in subsection (2) is deemed not to
be a mine, mineral or valuable stone but is deemed to be and to have
been a part of the surface of land and to belong to the owner of the
surface.
(4) Notwithstanding any patent, title, grant, deed, notification,
conveyance, lease, licence, agreement, disposition or other document,
issued or made before, on or after April 12, 1961, and that contains or
reserves mines, minerals or valuable stone, the owner of the mines,
minerals or valuable stone in any land is not entitled to the clay and
marl referred to in subsection (2) as against the owner of the surface
of the land.
(5) Notwithstanding subsections (2), (3) and (4), if a person who is
the owner of or has an interest in mines, minerals or valuable stone
has, prior to April 12, 1961, in good faith and for valuable consideration,
granted a lease or other disposition of the clay or marl referred to in
subsection (2), the lease or other disposition is not invalidated by the
fact that the owner of or person having an interest in the mines,
minerals or valuable stone is not entitled to the clay or marl.
(6) Subsection (5) only applies during the current term of the lease
or other disposition as provided in it at April 12, 1961 and does not
apply to any renewal, extension or continuation of it.
(7) No right of action for damages or for compensation lies against
the parties to the lease or other disposition for dealing in the clay or
marl in accordance with the terms of a lease or other disposition to
which this section applies.
(8) Nothing in this section shall be construed as entitling or
empowering any person who owns or has an interest in the surface of any
land affected by a lease or other disposition to which subsection (5)
applies
(a) to enforce the lease or other disposition or exercise any rights
under it, or
(b) to demand or recover any rents or royalties under it or any money
payable under it.
(9) If clay or marl has been removed from any land prior to April 12,
1961
(a) by the owner of the mines, minerals or valuable stone, or
(b) by a person claiming through the owner,
acting in good faith and in the honest belief that the owner or
person was entitled to it, no right of action lies against that owner or
person for damages or for compensation by reason of the removal of the
clay or marl prior to April 12, 1961.
Sand and gravel
58(1) The owner of the surface of land is and is to be deemed at all
times to have been the owner of and entitled to sand and gravel on the
surface of that land, and all sand and gravel obtained by stripping off
the overburden or excavating from the surface, or otherwise recovered by
surface operations.
(2) The sand and gravel referred to in subsection (1) is deemed not
be a mine, mineral or valuable stone but is deemed to be and to have
been a part of the surface of land and to belong to the owner of the
surface.
(3) Notwithstanding any patent, title, grant, deed, notification,
conveyance, lease, licence, agreement, disposition or other document,
issued or made before, on or after April 7, 1951, and that contains or
reserves mines, minerals or valuable stone, the owner of the mines,
minerals or valuable stone in any land is not entitled to the sand and
gravel in the land referred to in subsection (1) as against the owner of
the surface of the land.
(4) If, before April 7, 1951, sand and gravel have been dealt with or
removed from any land
(a) by the owner of the mines, minerals or valuable stone, or
(b) by a person claiming through the owner,
acting in good faith and in the honest belief that the owner or
person was entitled to it, the owner of the surface of the land has no
right of action for damages or for compensation by reason of that
dealing with or removal of the sand and gravel other than any right of
action that the owner of the surface of the land would have had if the
person who dealt with or removed the sand and gravel had been the owner
of it.
(2) Trespass to the Subsurface
You wanted to know whether trespass includes trespass to the
subsurface. Based on the above, I assume that specifically you are
wondering whether directional drilling for the mines and minerals (owned
by the Crown) into the sand, gravel, clay and marl (owned by the surface
owner) could be considered trespass to the surface owners' land.
In short, there is no clear answer to this question in Canadian law.
An action in trespass under the common law is an action for the
direct interference with land in the possession of another person.
Trespass is actionable without proof of damage. Part of the
challenge with an action in trespass is determining the physical
dimensions of that govern possession of land. There is an old
Latin saying in law (cujus est solum ejus est usque ad coelum et ad
inferos) which means whoever owns the soil, owns all the way up to
the heavens and down to the depths of the earth. This saying has
been altered by case law (court decisions) and by statute.
There is very little Canadian case law on the extent of possessory
rights to the "depths of the earth" and subsurface
trespass. I only found one Canadian case on subsurface trespass,
and no Canadian cases specifically considering subsurface trespass in
terms of drilling for mines and minerals. I will mention here that
I only researched Canadian case law for this request.
The one case I found on subsurface trespass is a British Columbia
Court of Appeal case called Austin v. Rescon Construction (1984) Ltd.
[1989] B.C. J. No. 646 (BCCA). In this case, a developer wanted to
insert anchor rods into the neighbouring property owned by Mr. Austin in
order to provide shoring for excavation and construction. The
developer made some attempts to contact Mr. Austin to receive his
consent, but never spoke to him directly about inserting the rods into
his property. The anchor rods were inserted into Mr. Austin's
property without his consent or knowledge. The rods caused no disturbance
to the surface of Mr. Austin's land and were later removed, although concrete
and steel debris remained in the subsoil. Mr. Austin sued for
trespass and was awarded compensatory damages in the amount of $500 for
the cost of removing the rods from this property, and exemplary damages
in the amount of $30,000 because the conduct of the developer was considered
high-handed. The amount of damages was based on the profit or
monetary benefit gained by the developer by inserting the anchor rods
into Mr. Austin's property.
There are a few points I want to emphasize about the Austin
case and trespass principles generally. First, it is important to
keep in mind that the Austin case is a case decided in the courts
of British Columbia and not Alberta. Since this case is not from
Alberta, the case is not binding on Alberta courts, which means that
Alberta courts do not have to automatically follow this decision.
The case may be persuasive or influential, in that it can be used to
argue similar points before Alberta courts, but it is not binding or
conclusive.
Second, I see a possible difference between an action in trespass in the
Austin case and an action in trespass with respect to directional
drilling for minerals owned by the Crown. The difference is the defence
of legal authorization, which is one defence to an action in
trespass. If legislation authorizes entry, an action for trespass
will not succeed. The question is whether ownership and access to
the mines and minerals constitutes effective legal authorization to
negate or counter an action in trespass to the gravel, sand, clay and
marl. There is no clear answer in Canadian case law on this point.
Third, I will mention briefly that there is case law on the extent of
possessory rights "up tot he heavens" and trespass into airspace.
The case law on airspace trespass may be helpful or analogous to
subsurface trespass. Generally, the owner of the surface holds an
entitlement to the airspace up to a reasonable height above the ground;
a height of space which can be used or occupied by the surface
owner. The Alberta Court of Appeal in the case Didow v. Alberta
Power Ltd. [1988] 88 A.R. 250 (ABCA) has held that a landowner is
entitled to freedom from permanent structures which in any way impinge
upon the actual or potential use and enjoyment of his land. Based
on this reasoning, permanent, low-level intrusions into a surface
owner's airspace by signs, billboards, hydro-lines and parts of
buildings are usually actionable in trespass. In contrast,
transient, high level intrusions (above the height of reasonable use)
into a surface owner's airspace by overhanging cranes or aircraft are
usually not actionable in trespass.
(3) ELC's Information
You inquired whether the ELC has a succinct paper on the extent of
landowners' rights, particularly with respect to trespass. The ELC
does not. In an earlier conversation, I suggested you contact
Professor Ziff at the Faculty of Law at the University of Alberta, who
is an expert in the field of property rights. He may have further
information on the particular issue of subsurface trespass.
At this time, any further research on this issue would involve
looking at case law from other countries, particularly American case
law. Case law from other countries is not binding on Canadian
courts, but may be persuasive. After reviewing this email we can discuss
whether you would like to retain the ELC to review case law from other
jurisdictions (such as the United States) to look further into his
issue.
Please feel free to contact me if you have any questions.
Jodie Hierlmeier
Staff Counsel
Environmental Law Centre
