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In This Volume

50 (1) A disposition of Crown land under this or another Act

  • (a) excepts and reserves the following interests, rights, privileges and titles:
    • (i) a right in the government, or any person acting for it, to resume any part of the land that is deemed to be necessary by the government for making roads, canals, bridges or other public works, but not more than 1/20 part of the whole of the land, and no resumption may be made of any land on which a building has been erected, or that may be in use as a garden or otherwise;
    • (ii) a right in the government, or any person acting for it or under its authority, to enter any part of the land, and to raise and get out of it any geothermal resources, fossils, minerals, whether precious or base, as defined in section 1 of the Mineral Tenure Act, coal, petroleum and any gas or gases, that may be found in, on or under the land, and to use and enjoy any and every part of the land, and its easements and privileges, for the purpose of the raising and getting, and every other purpose connected with them, paying reasonable compensation for the raising, getting and use;
    • (iii) a right in any person authorized by the government to take and occupy water privileges and to have and enjoy the rights of carrying water over, through or under any part of the land granted, as may be reasonably required for mining or agricultural purposes in the vicinity of the land, paying a reasonable compensation to the grantee, the grantee’s successors and assigns;
    • (iv) a right in any person authorized by the government to take from any part of the land granted, without compensation, gravel, sand, stone, lime, timber or other material that may be required in the construction, maintenance or repair of a road, ferry, bridge or other public work,
  • (b) conveys no right, title or interest to
    • (i) geothermal resources as defined in the Geothermal Resources Act,
    • (ii) minerals and placer minerals as defined in the Mineral Tenure Act,
    • (iii) coal,
    • (iv) petroleum as defined in the Petroleum and Natural Gas Act,
    • (v) gas, or
    • (vi) fossils,
    that may be found in or under the land, and
  • (c) conveys no right, interest or estate to highways, within the meaning of the Transportation Act, existing over or through the land at the date of the disposition.
  • (2) Subsection (1) applies whether or not express words are used in the disposition, but is subject to subsections (3), (3.1) and (3.2).
  • (3) A disposition of Crown land under another Act that expressly authorizes the disposition on terms different from those referred to in subsection (1) may be made on those terms, and in that case the disposition must refer to the Act that authorizes the different terms and state the terms on which the disposition is made.
  • (3.1) A disposition referred to in section 11(2)(e) may be made, if express words are used in the disposition.
  • (3.2) If a final agreement of a treaty first nation provides for the addition to the treaty lands of the treaty first nation, a disposition of Crown land for the purpose of adding to those treaty lands may be made on terms different from those referred to in subsection (1), and in that case the disposition must refer to the final agreement and state the terms on which the disposition is made.
  • (4) A disposition of Crown land may, by express words, except or reserve to the government rights and privileges more extensive than those referred to in subsection (1).
  • (5) For all purposes, including section 23 of the Land Title Act, every disposition of Crown land is conclusively deemed to contain express words making the exceptions and reservations referred to in subsection (1) of this section, except to the extent that the disposition is made on different terms under subsection (3), (3.1), or (3.2).
  • (6) The power under subsection (4) to except and reserve rights and privileges includes a power to create a right of way, and if this is done
  • (a) the government is, with respect to the right of way, a grantee,
  • (b) the right of way is conclusively deemed to be necessary for the operation and maintenance of the government’s undertaking, and
  • (c) section 218 of the Land Title Act applies.

1979-214-47; 1980‑22‑5, proclaimed effective September 18, 1980; 1982‑14‑26; 1988‑5‑68; 1995-50-46, deemed effective December 1, 1995 (B.C. Reg. 455/95); 2004-44-119, effective December 31, 2004 (B.C. Reg. 547/2004); 2010-6-11 (B.C. Reg. 214/2011); 2018-37-2.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Interest or Right Reserved to Transferor

See s. 181 of the Land Title Act regarding the registration of the fee simple in land under an instrument containing reservations in favour of the transferor.

Registration of Covenants

See s. 219 of the Land Title Act regarding the registration of covenants in favour of the Crown.

Land Use Restricted to Agricultural Purposes

See s. 22 of the Agricultural Land Commission Act, S.B.C. 2002, c. 36 regarding the registration of covenants in favour of the commission restricting the use of land.

Consolidation of Granted Land with Other Land

See ss. 1 and 2 of the Land Act Regulation, B.C. Reg. 315/76, reproduced under s. 54 of this Act.

See also s. 219(2)(d) of the Land Title Act and s. 22 of the Agricultural Land Commission Act, both of which specifically authorize the registration of covenants that prohibit the separate sale or transfer of designated parcels of land.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 134 and 216, and vol. 2, para. 612.

See “Land” in Real Estate—1997 Update (Continuing Legal Education Society of British Columbia, 1997).

CASE LAW

Crown Grant Does Not Except and Reserve Title to Land Charged by a Statutory Right-of-way Absent Clear Language

In 2018, the Surface Rights Board of British Columbia (“SRB”) found thattitle to land covered by a right-of-way granted for a pipeline corridor in 1964 to Imperial Oil (to which the respondent, Bonavista, was successor) was not excepted from the 1991 Crown grant of the fee simple to Belanger ( to whom the Fell appellants were successors in title). It followed that, in relation to the right-of-way, the Fells were “landowners”, and the SRB had jurisdiction to entertain their application seeking compensation from Bonavista relating to its operation of a well site on the right-of-way corridor. On judicial review, the Supreme Court of British Columbia set aside the SRB decision for lack of jurisdiction, on a finding that the Fells were not “landowners” due to the effect of s. 47 of the Land Act, R.S.B.C. 1979, c. 214, the predecessor to s. 50 of the current Land Act. On a “correctness” standard of review, the British Columbia Court of Appeal overturned the order of the judicial review judge, saying the SRB was correct in its interpretation of the original Crown grant, and that the appellants own the land charged by the right-of-way. The court made its finding on an examination of the plain and ordinary meaning of the words of the Crown grant. The plan annexed to the Crown grant indicated and illustrated no exception of title to the land within the right-of-way. Three provisos followed by two “excepting and reserving” clauses in the Crown grant did not except and reserve the fee simple interest in the plan, but did set out rights to which the estate is subject, including Bonavista’s statutory right-of-way: “In other words, they deal with what the grantee can do with the land, not where the land is” (para. 46). The appellate court noted the right-of-way is registered as a charge against title to the land, signalling that the fee simple estate includes the area within the right-of-way: “The way our Land Title system operates, the right-of-way would have to be registered as a charge against a separate title, in the name of the Crown”, if the Fells’ fee simple estate did not include the right-of-way (para. 49). “[O]ne would expect very clear language to support an interpretation of the Crown grant to Mr. Belanger that excepted and reserved for the Crown title to the land charged by the right-of-way. That clarity is missing” (para. 51) (Bonavista Energy Corporation v. Fell, 2020 BCCA 144).