179 Rights Of Owner Of Surface

FORMS

Because an interest in minerals is shown as a charge, the appropriate form to transfer minerals is a Form C General Instrument, with express charge terms attached as Part 2.

PRACTICE

Pre-1921 Crown Grant Could Include Surface and Minerals

Before 1921, a Crown grant could include both surface and minerals. A certificate of indefeasible title could include the surface and minerals with no special reference to minerals except what might appear in the legal description, such as, for example:

LOT 47, MALAHAT DISTRICT KNOWN AS THE WHITEHOUSE MINERAL CLAIM

Post-1921 Title to Minerals Registered as Charge

In 1921, the Legislature altered the methods of registration of mineral claims and the new method remains in place today. The registrar now registers title to the minerals as a charge against the indefeasible title. As the owner of the charge is, effectively, the owner in fee of the minerals, there is a distinction between a charge registered under s. 179 and an ordinary charge.

Minerals Registered in the Absolute Fees Register

When issuing an indefeasible title to surface land where the minerals are registered in the absolute fees register, the registrar makes a cross reference by way of a charge on the indefeasible title to the charge contained in the absolute fees register.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Interest or Right Reserved to Transferor

See s. 181 of the Act regarding the registration of exceptions or reservations in favour of a transferor on an application to register a person as owner in fee simple of land.

Surrender of Interests in Mineral Lands

The Surrender of Interests in Mineral Land Regulation, B.C. Reg. 826/74, sets out the following procedures where an owner surrenders an interest in mineral lands:

1. An owner may surrender all or part of an interest in mineral land to the Crown in right of the Province by a quit claim deed or other instrument sufficient to vest title to the interest being surrendered in the Crown.
2. The owner must register the quit claim or other instrument evidencing the surrender in the appropriate land title office and must forward a copy of the instrument numbered by the registrar to the Assessor of Mineral Land Tax.
3. The owner is not required to pay a fee for a surrender of interests in mineral lands.

Requirements of Director of the Mineral Title Branch

Procedures

See the Mineral Land Tax Act, R.S.B.C. 1996, c. 290 and directives of the Director of the Mineral Title Branch regarding changes of titles relating to Crown-granted mineral claims and transfers of mineral interests, which are separately registered.

Documents Required by Director of the Mineral Title Branch

The registrar must forward photocopies of all transfers of mineral interests (including rights to purchase and transmissions), whether they are mineral claims, reservations of minerals, or other forms of undersurface rights, to the Director of the Mineral Title Branch.

Petroleum and Natural Gas Act

See the Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361 regarding petroleum and natural gas rights.

Legal Notations and Charges

See chapter 70 (Legal Notations and Charges) for sample forms of endorsement relating to mineral or timber rights.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §14:56.

CASE LAW

Notes on Case Law: The following case annotations are only a sample of cases regarding mineral or timber rights. They are intended only as a starting point for research.

Mineral Rights

Title to gold and silver rests with the Royal Prerogative. A Crown grant does not include these metals and they are not regarded as incidents of the land (British Columbia (Attorney General) v. Canada (Attorney General) (1889), 14 A.C. 295 (P.C.)).

It is competent for an owner of land to convey the minerals in the owner’s title so that thereafter two separate estates in fee exist: one in the minerals and the other in the land retained (Berkheiser v. Berkheiser, 1957 CanLII 56 (SCC)).

Where the Crown has granted the precious metals in a parcel, a conveyance of the parcel by the Crown grantee to a third person will pass the precious metals even if they are not specifically mentioned (Re St. Eugene Mining Co. and the Land Registry Act (1900), 7 B.C.R. 288 (S.C.)).

In construing a reservation of “mines and minerals”, the relative positions of the interested parties and the substance of the transaction must be considered (Williamson v. Hudson’s Bay Co., 1956 CanLII 618 (AB QB)).

Where the registrar specifies that certain minerals are included in a certificate of title, the indefeasibility provisions of the Act would bind the Crown where the original Crown grant reserved the minerals, but a subsequent erroneous endorsement in a later certificate of title indicated that minerals were included in it. Thus, the minerals would be included in the subsisting certificate of title (Prudential Trust Co. v. Saskatchewan (Registrar, Humboldt Land Registration District), 1957 CanLII 69 (SCC)).

The plaintiff transferred land to W. In the agreement for sale, the plaintiff had reserved mineral and subsurface rights, but no notation of this reservation was made on title. Subsequently, by order for sale, the defendants obtained the property. They were entitled to the mineral and subsurface rights because they were bona fide purchasers without notice of the subsisting reservation (Gregory v. Budd, [1985] B.C.J. No. 1473 (QL) (S.C.)).

Timber Rights

The sale of standing timber to be cut and removed by a purchaser is a sale, of an interest in land (Carlson v. Duncan, 1931 CanLII 324 (BC CA)).

Certain lands were subject to a reservation of timber contained in a 1914 conveyance of the land. That reservation created in the grantor a fee simple in the trees and the right, as a necessary incident of the estate created, to enter and take trees. The reservation was not one in perpetuity, but only a reservation of one crop of timber. Expert evidence established that the trees by then growing on the lands were not as old as the reservation itself and that the crop reserved had already been harvested. The registered fee simple in the trees had therefore expired and cancellation of the interest was appropriate (Re Newson and Masters, 1984 CanLII 413 (BC SC), following Carlson v. Duncan).