Surface and Mineral Rights

The word land is usually used to refer to the surface of the earth. In a legal sense, however, it refers to that which extends from the centre of the earth to the outer edge of the atmosphere. This is commonly referred to as the "heaven to hell" concept.

Someone who owns surface rights to land owns not only the surface but also the air space above it (subject to the rights of others, such as airlines) and any sand, gravel, peat, clay or marl which can be excavated by surface operations. However, surface rights do not include ownership of minerals. Someone who owns mineral rights to land may own one specific mineral, several specified minerals or all of the minerals (except gold and silver, which, with few exceptions, are the property of the Crown). If the land described on a certificate of title is surface only, the legal description will be followed by a "mineral reservation", a phrase such as "excepting thereout all mines and minerals". If the title includes both surface and minerals, it will not have a mineral reservation. If the title is for minerals only, they will be named in a phrase like "all coal, petroleum and natural gas" or "all mines and minerals".

As minerals represent a great deal of the wealth of this province, it is very important that their ownership be clearly defined. For this reason, the Land Titles Offices are required to issue Mineral Certificates before registering any dispositions (transfers, mortgages or leases of mineral interests). A Mineral Certificate certifies precisely what minerals are owned in a specific parcel of land and by whom, on a specific date, and what mines and minerals are shown in the disposition.

Most titles which previously included both surface and minerals have now been separated into "surface only" titles and "minerals only" titles.

Mineral Certificates

A Mineral Certificate is, in effect, a search of the historical title record to verify the proper ownership of the mines and minerals intended to be dealt with. It is only issued in conjunction with a disposition document that has been submitted to the Land Titles Office (i.e. a Transfer or Lease). Before any disposition of mines and minerals can be registered, Land Titles must conduct a mineral search and be able to issue a mineral certificate. Sec. 169(5) Land Titles Act. For applicable fee, see Land Titles Fees section.

When Land Titles issues a mineral certificate based on a disposition, such as a lease that is not being registered with Land Titles at that time, the mineral certificate is attached to the said document prior to its return to the party requesting the certificate.

The time frame required for the issuance of a mineral certificate will vary dramatically. It is dependent on whether the minerals have been previously checked or not, how far back in time the search must go, how may times the title has been transferred and if the title has ever been split or subdivided. An asterisk (*) in front of the mineral statement on a title indicates a check has been done on that parcel.