Mines and Minerals -- Ownership and Reservation
By: Brenda-Jean Currie, B.A., LL.B., of the Alberta Bar
Part II: Ownership and Reservation
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II.1: Ownership and Reservation - Private Ownership
The general common law rule provides that all minerals lying in a direct line between the surface and the centre of the earth, excepting gold and silver, belong to the owner of the soil as long as there has not been a severance of the title to them.
It is acceptable for an owner of land to so convey the minerals lying in or under the land that thereafter two separate estates in fee exist, the one in the mineral conveyed and the other in that which is retained.
An agreement to convey lands without making any reservation entitles the purchaser to the mineral rights, but it does not oblige the vendor to convey title to the precious metals.
Where a company beneficially owns mines and minerals under an unregistered transfer of land, and files a caveat on title claiming such interest, the company does not subsequently surrender its beneficial ownership by purporting to enter into a natural gas lease as lessee.
If a vendor of land covenants to convey all of his or her interest in the land, and because of a mutual mistake it is believed the mines and minerals are reserved to the Crown, whereas they actually belong to the vendor, the purchaser will be entitled to the mines and minerals.
A purchaser who becomes aware of a defect in the vendor's title may repudiate the contract, except possibly in the case of trifling matters which the court could, at the vendor's instance, address by fixing compensation or abating the purchase price.
Accreted land takes on the legal characteristics of land to which it has accreted, and prima facie includes all mines and minerals.
An interest in minerals may be created as a profit à prendre where an agreement provides for the right to enter the lands of another, the right to sever minerals, and the right to remove the minerals for one's own use. As such an interest is an interest in land, it may be dealt with according to the ordinary rules of property.
Gold and silver belong to the Crown by prerogative and are not regarded as incidents of the land unless they have been severed from the title of the Crown. No such Crown prerogative exists in the case of base metals.
The Crown's prerogative right to precious metals will not pass under a grant of land unless an intention to transfer is expressed by apt or precise words, or is necessarily implied.
Where the Crown has parted with the precious metals in a parcel of land, those metals will be regarded as incidents of the land and can be passed to a third party by the grantee of the land pursuant to a conveyance in the ordinary form even though the metals are not specifically mentioned.